Jens Claerman

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Review 2018-2019 - Volume 57

Guarding the vigilant guardian:
A legal perspective on Belgium’s domestic deployment of the armed forces
JENS CLAERMAN
Legal counsel military disciplinary law, Belgian Armed Forces ^*

Table of Contents

Operation Vigilant Guardian and the relevance of a legal discussion
The legal framework of domestic deployment of the military for public order purposes

“Public order” and the role of the military in maintaining it
Methods of deployment

Requisition

Concept and modalities
Control mechanisms

Public order deployment ordered by the King

The King as Commander-in-Chief
Control mechanisms

Operation Vigilant Guardian in practice: legal issues and control mechanisms

Motivation, execution and control of the operation
Legality: subsidiarity and proportionality

Conclusion: (legal) lessons learned

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^* The opinions asserted by the author in this article are his alone and do not necessarily represent those of the Belgian Ministry of Defence, the Belgian Armed Forces or any of its components. This article is based upon information that is publically available, or available through Freedom of Information request. The author wants to thank Prof. dr. Jelle Janssens for the guidance and encouragement. Back

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I. Operation Vigilant Guardian and the relevance of a legal discussion

On 15 January 2015, members of the Belgian police forces carried out several raids and searches throughout the country. One of these raids took place in the city of Verviers in south-eastern Belgium. Upon entering the building, the SWAT officers of the Federal Police received incoming assault rifle fire, forcing them to answer in kind. This would cost two suspected terrorists (and Syria returnees) their lives. The subsequent investigation showed that this raid foiled a terrorist plot to conduct an armed attack on an unspecified police station. The next day, against the backdrop of the past terrorist attacks on the Jewish Museum in Brussels, the Charlie Hebdo magazine in Paris and the events of the previous day, the Belgian Federal Government proposed twelve measures ¹ to counter the terrorist threat. Among measures of a legal-technical nature (e.g. a reform of the intelligence services and the creation, activation or expansion of legislation to provide for more tools in the fight against terrorism) and policy nature (e.g. revision of the plan against radicalization, a reinforcement of the intelligence services, and optimization of information exchange), there was one measure that stood out.

While most of the measures were intended to enhance the preventive and repressive capabilities in the war on terrorism and were meant to be enacted in the medium to long term, the deployment of the military was intended to immediately reassure and protect the public while the other measures were implemented. On 17 January, an agreement was formalized between the ministers of the Interior and Defence, thereby commencing Operation Vigilant Guardian (OVG). That day, a relatively small contingent of up to 300 members ² of the 3^rd Parachute and Chasseurs Ardennais battalions was deployed to cities such as Brussels and Antwerp to protect buildings, areas, events, and sites determined to be at risk of a possible terrorist attack. Between early 2015 and early 2020, OVG's contingent strength has fluctuated between as little as 160, several months after the initial deployment, and as much as 1828 troops, moments after the Brussels attacks of 22 March 2016. ³ At that moment, OVG accounted for 75% of all deployed military personnel, even requiring the use of non-combat (i.e. logistical) units. ⁴ The amount of stress this caused the Belgian military can hardly be underestimated. During this period, several other European armed forces were also deployed in their respective countries (Opération Sentinelle in France and Operation Temperer in Great Britain). At the time of writing, there is still a contingent of 550 soldiers (415 actually deployed) participating in the operation and popular support has remained high. From press statements on the decisions of the Council of Ministers, it becomes clear that the cabinet intends to gradually decrease the size of the contingent taking part in OVG until there are no more soldiers present in the streets. With the ascent of yet another new Minister of Defence, Philippe Goffin, new plans of withdrawal are in the works despite popular support for the operation. ⁵ However, it appears that the protracted negotiations to form a new

¹ Belgian Government, ‘12 measures against radicalism and terrorism, 16 January 2015’, https://www.premier.be/sites/default/files/articles/PPT_16012015_d%C3%A9finitif.pdf. Unless indicated otherwise, all URLs cited were last accessed on 15 February 2020. Back
² All indications of contingent strength refer to the maximum contingent strength, as a number of troops may be held in reserve given the actual security situation. Back
³ J. De Smet, De impact van de aanslagen van 22 maart 2016 op de vervagende grenzen van politie en leger (Ghent, Ghent University, 2017), https://lib.ugent.be/fulltxt/RUG01/002/376/044/RUG01-002376044_2017_0001_AC.pdf, p. 40. Back
⁴ W. Struys, ‘The Blurring of Belgium's Security: deliberate or unintended?’, Vol. 95 Egmont Papers June 2017, http://www.egmontinstitute.be/content/uploads/2017/07/egmont.papers.95_proef.pdf?type=pdf, pp. 14-15. Back
⁵ Belgian Defence News, La police va progressivement remplacer les militaires en rue, 18 December 2019, https://www.belgiandefencenews.be/news/937/la-police-va-progressivement-remplacer-les-militaires-en-rue; C. Vanschoubroek & P. De Lobel, Vlamingen en Walen gewonnen voor militairen op straat, 16 October 2017, https://www.standaard.be/cnt/dmf20171016_03134816 and D. Resteigne & P. Manigart, ‘Boots on the streets: a “policization of the armed forces as the new normal?’, Vol. 8 No. 1 Journal of Military Studies 2019, pp. 21-26. Back

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federal government following the 2019 general elections are thwarting the establishment of a timetable allowing us to predict the end of the deployment.

Figure 1: Contingent size as decided by the Council of Ministers (17/01/2015 - 17/01/2020)
This deployment brings about all kinds of political, sociological and legal questions. These are, however, not novel questions, "as the armed forces have always been the architects of internal order by virtue of their status, organisation and equipment...". ⁶ This article will analyze the legal framework surrounding military public order operations in Belgium, its historical evolution, and its implications for democratic civilian control over the armed forces, as a clear legal basis is essential when discussing the institutional control mechanisms that hold sway over the actions of the armed forces. ⁷ While public, political and academic attention towards the legal framework (and associated civilian control questions) for international deployment of the armed forces has not been lacking, ⁸ academic attention towards (the legal aspects of) military public order operations has not been that overwhelming. While the Constitution, ⁹ declaring that "the King ¹⁰ commands the armed forces" , ¹¹

⁶ A. Forester, Armed Forces and Society in Europe (Basingstoke, Palgrave Macmillan, 2006), p. 226. Back
⁷ T. C. Bruneau & F.C. Matei, ‘Towards a new conceptualization of democratization and civil-military relations’, Vol. 15 No. 5 Democratization 2008, p. 916. Back
⁸ T. Ruys, N. Verlinden, F. De Meyer, W. Staes & J. Wouters, De mars ten oorlog is een parlementair debat waard, 4 June 2018, http://www.standaard.be/cnt/dmf20180603_03543723; M. Van Damme, ‘De Grondwet en het inzetten van strijdkrachten. Een inleidende situering’, in A. De Becker, G. Laenen, M. Van Damme & E. Vandenbossche (eds.), De Grondwet en het inzetten van strijdkrachten (Antwerp-Apeldoorn, Maklu, 2005), pp. 24-25; T. Ruys, 'Kroniek van een nakende grondwetswijziging? Parlementaire controle op het inzetten van de strijdkrachten in het buitenland', Vol. 73 No.13 Rechtskundig Weekblad 2009-2010, pp. 514-530 and E. Vandenbossche, 'De federale Kamers en de buitenlandse missies van militairen', No. 3 Publiekrechtelijke Kronieken 2011, pp. 424-442. Back
⁹ An official English translation of the Belgian Constitution can be found on the website of the Chamber of Representatives: https://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/GrondwetUK.pdf. Back
¹⁰ In Belgian constitutional law, the term “the King” must be understood as “the King together with the cabinet.” See: J. Vande Lanotte & G. Goedertier, Handboek Belgisch publiekrecht (Bruges, Die Keure, 2013, 7^th Ed.), pp. 744 and 749, and P. D'Argent, ‘Military law in Belgium’ in G. Nolte (ed.), European Military Law Systems (Berlin, De Gruyter Recht, 2003), p. 186. Back
¹¹ Art. 167, §1 of the Constitution. Back

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makes no explicit distinction between external and internal deployment, and given that the act and royal decree regulating the types of military deployment (see infra) treat both internal and external missions, it seems odd that domestic public order deployments are so underexposed in Belgian legal literature. The proliferation of capable police forces and the relative pacification of socio-political conflicts in Western Europe ¹² somewhat explain the diminishing importance of domestic deployment when compared to the international variant. On the other hand, the blurring of boundaries between internal and external security, ¹³ the possible dangers of a military public order deployment ¹⁴ and the recent appearance of militarized threats at home (e.g. terrorism and drug-related organized crime ¹⁵ ) have brought internal use of armed forces more sharply into public focus. ¹⁶ This underrepresentation has also had practical consequences: recent proposals to alter the aforementioned article of the Constitution were all limited to the international deployment of the armed forces, and were completely oblivious to the article's relation to domestic military public order operations. ¹⁷ In the public debate, specific attention towards OVG's legal basis peaked during the early days of the operation, but quickly subsided. The most recent spike of interest followed the discovery that soldiers participating in OVG were not insured in the same way as their colleagues deployed overseas. Such a lacklustre and short-lived political interest for domestic deployment is not beneficial to further development of civilian control and the legal framework. Hence, this article wishes to add to the body of work on domestic deployment and stimulate discussion on possible improvements to the current framework. This article will start by discussing the constitutional and statutory framework relating to the deployment of the armed forces for public order operations. It will try to show what exactly constitutes a public order deployment, what its legal basis is, and what forms of control are in place to prevent abuse. In its second part, this article will discuss what the military specifically does during OVG and how control is exercised over the behaviour of the deployed soldiers. The last part of the article will recapitulate the (legal) lessons to be learned from OVG.

II. The legal framework of domestic deployment of the military for public order purposes

¹² A. Forester, supra note 6, pp. 232-233. Back
¹³ P. Chalck, Non-military security and global order: the impact of Extremism, Violence and Chaos on national and International security (Basingstoke and New York, MacMillan Press and St. Martin's Press, 2000), pp.1-2. Back
¹⁴ While indispensable for the sovereignty of the state, the military also poses as one of the nation's biggest threats if it rebels (J. Clarenne, M. El Berhoumi & T. Moonen, ‘Le contrôle parlementaire de l'armée à la lumière de la séparation des pouvoirs civil et militaire’, No. 4 Administration Publique 2018, p. 436). The historical record shows many instances where armed forces relied on its discipline, structure, numbers and superior weaponry to overthrow governments (European Commission For Democracy Through Law (Venice Commission), Report on the democratic control of the armed forces (Venice, 14-15 March 2008), https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2008)004-e, pp. 16-17). Nowadays, the division between military and civil power is less inspired by the fear of a coup d'état, and more by the need for effective political responsibility in the military domain (J. Clarenne, et al., supra, p. 438). Nevertheless, civil rights violations may take place at the hands of the soldiers deployed in the streets (C. J. Williams, ‘An argument for putting the Posse Comitatus Act to rest’, Vol. 85 No. 1 Mississippi Law Journal 2016, http://mississippilawjournal.org/wp-content/uploads/2017/03/2.-Williams.pdf, footnote 1). Back
¹⁵ Since March of 2018 there have been multiple grenade attacks in Antwerp which are thought to be connected to organized crime groups mainly occupied with drug trafficking. Back
¹⁶ A. Forester, supra note 6, p. 226. Back
¹⁷ W. De Vriendt et al., Proposed statement to revise article 167, §1 of the Constitution, Chamber, 2014-15, No. 0554/1; F. Delpérée et al., Proposed statement to revise article 167, §1 of the Constitution in order to grant the Chambers powers in case of foreign deployment of the armed forces, Chamber, 2015-16, No. 1946/1; T. Vandenput et al., Proposed statement to revise article 167, §1, s.2 of the Constitution concerning the power to declare war, Chamber, 2015-16, No. 2065/1; S. Crusnière et al., Proposed statement to revise article 167, §1, s.2 of the Constitution concerning the power to declare war, Chamber, 2017-18, No. 3183/1 and B. Anciaux et al., proposed statement to revise article 167, §1, s.2 of the Constitution concerning the power to declare war, Senate, 2018-19, No. 6-518/1. Back

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1. “Public order” and the role of the military in maintaining it

Before going deeper into the quirks and features of the legal framework surrounding this type of deployment, the notion of "public order" ¹⁸ needs to be defined, as this concept is not generally given clear legal expression and definition. ¹⁹ The Council of State, Belgium's highest administrative court that also gives advice on legislative proposals, describes it as a permanently evolving notion that is dangerous to confine, because one risks being stuck with an insufficient or incomplete definition. ²⁰ While Belgian literature rightly describes this term as notoriously vague and hard to accurately define, ²¹ efforts were made to specify the concept through circulars and statutory provisions. The ministerial directive on public order maintenance of 10 December 1987 provides a general, non-binding definition. It states that “public order” describes “the condition of political, economic and social balance of the country, of internal stability of the state within a framework determined by law (…), and the result of the exercise of individual freedoms in accordance with the public good.” The meaning of this concept has evolved over time. Where maintaining public order in the 19^th and early 20^th centuries was described by some as "nothing but the defence of the Government," ²² the modern, dynamic interpretation of the concept is one without political connotation, as this is incompatible with the rule of law. ²³ The current definition emphasises public peace, freedom of public spaces and the protection of the lives of the citizens. ²⁴ To somewhat objectify “public order”, three elements are used in Belgian legislation ²⁵ that can be traced back to Revolutionary French administrative law. ²⁶ These are “public tranquillity”, which pertains to the absence of unrest and disorder (e.g. riots); “public safety”, which concerns the absence of dangerous situations for persons and goods (e.g. crime prevention and disaster relief); and “public health”, entailing the absence of diseases. ²⁷ This means that, in this article, "public order” is not used to indicate solely the government's response to riots (public order sensu stricto), but a broader notion, encompassing the military functions described, for example, in British military doctrine as military aid to the civil power (MACP), military assistance to government departments (MAGD) and military assistance to the civil community (MACC). ²⁸

The Constitution remains silent on the tasks of the armed forces. Given the general distrust towards the executive enshrined in the Belgian Constitution, ²⁹ it falls to the legislature to set the limits within

¹⁸ Dutch: openbare orde; French: l’ordre public; synonym: law and order. Back
¹⁹ A. Forester, see supra note 6, p. 228. Back
²⁰ Advice of the Council of State (Adv. CoS) on the draft of the Act on the Police Function, Chamber of Representatives (Chamber), 1990-91, No. 1637/1, pp. 108-109. Back
²¹ N. Lagasse, ‘L’emploi de la force sur le territoire national par les militaires en dehors des régies par le droit des conflits armés’, No. 1 Revue Belge de Droit Constitutionnel 2013, p. 7 and W. Deridder & F. Demot, ‘Handhaving van de wanorde’, Vol. 54 No. 15 Rechtskundig Weekblad 1981-82, https://rw.be/archief/4515/pdf, p. 980. Back
²² P. Spaak in an open letter in Le Peuple, 16 April 1902, quoted in M. Draper, The Belgian Army and Society from Independence to the Great War (Cham, Palgrave Macmillan, 2018), pp. 150-151. Back
²³ D. Haché, M. Cromheecke & J. Vande Lanotte, Juridische fundamenten inzake de vrijwaring van de openbare orde (Bruges, Vanden Broele, 1991), pp. 4 and 6-7. Back
²⁴ A. Forester, supra note 6, p. 229. Back
²⁵ Art. 128 of the Province Act of 30 April 1836, BS 27 November 1891; Art. 2, §2, 1° of the Royal Decree of 18 April 1988 “tot oprichting van het coördinatie- en Crisiscentrum van de regering”, BS 4 May 1988. Back
²⁶ Art. 2 of the Decree of 14 December 1789; D. Haché et al., see supra note 23, p. 9. Back
²⁷ A. Liners, Handboek Openbare Orde, I, De openbare orde (Brussels, Politea), Chapter 1/2; P. Pieters, ‘Burgemeester, gouverneur, minister: de tussenkomst van de (hogere) bestuurlijke overheden bij verstoringen van de openbare orde’, Vol. 27 No. 2 Panopticon 2006, p. 94. Back
²⁸ A. Forester, see supra note 6, pp. 228-247. Back
²⁹ Art. 105 of the Constitution and E. Cloots, ‘Het mysterie van de Belgische nationale en constitutionele identiteit’, No. 6 Tijdschrift voor Bestuurswetenschappen en Publiekrecht 2017, p. 320. Back

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which the executive must operate. This does not mean that the legislature’s powers are unlimited. The executive's and the legislature's powers concerning the armed forces balance each other out, entailing that the legislature cannot just ignore the relative competences of the executive and that it is not up to the executive to interpret the provisions on the missions of the armed forces unless otherwise stated by law. ³⁰ The role of the military in maintaining public order is well established through several regulatory texts that will be discussed in more detail in the following parts of this article. All of these texts refer to the notion of public order as set out in the previous paragraph, with only some narrowing down this broad concept. Some general rules that apply to all methods of military public order deployment can, however, be established. First, any such deployment must respect the principles of subsidiarity and proportionality. King Leopold I already established in 1861 the precedent that the army cannot and must not be involved in the repression of civil strife until the local police force, supported by the civic guard, ³¹ has been beaten. ³² Secondly, it is established policy to no longer involve the armed forces in conflicts of a socio-political nature. ³³ Thirdly, within the scope that remains for the armed forces to operate in, it cannot be accepted that they would completely replace the police services. ³⁴ In the most general sense, the mere creation of the Integrated Police ³⁵ limited the possible assignments of the armed forces. Combined with the traditional division of roles between the police and the military, the applicable rule must be one of different roles of police and armed forces, and coinciding roles must be the exception. ³⁶ The Act on the Police Function ³⁷ (APF) ascribes to the police the general assignment of enforcing the law and maintaining public order, implying that the armed forces can only partake in a limited mission under specific circumstances. ³⁸ The APF further limits the scope of the public order assignment of the armed forces by regulating how they should cooperate with the police. It states that while the commander of a military detachment remains in command of his detachment, he must adhere to instructions given by the police official in charge of operations. ³⁹ It is therefore impossible for the armed forces to act entirely independent from the police. A final restriction of the scope of the armed forces' role in maintaining public order is the fact that soldiers have significantly less legal competences than police officers do, making them (legally) less effective tools for maintaining public order and enforcing laws. The protocol agreements of 17

³⁰ N. Lagasse, ‘Le commandement des forces armées: principe et mise en œuvre’, in V. De Saedeleer N. Lagasse & E. Vandenbossche (eds.), Questions juridiques d’actualité en lien avec la défense/Actuele juridische vraagstukken met betrekking tot Defensie (Bruges, Die Keure, 2017), p. 26. Back
³¹ These citizen militias took part in the Belgian Revolution and continued to play a role in domestic policing until the Great War. For more on the civic guard see: M. Draper, supra note 22, pp. 126-155. Back
³² M. Draper, supra note 22, p. 146. Back
³³ N. Lagasse, ‘Les missions de la défense sur le territoire national', in V. De Saedeleer et al., supra note 30, p. 90. After some disturbances in Molenbeek, the Minister of Defence stated "It must, however, be clear that soldiers will never be deployed for maintaining public order (sensu stricto), but only to protect the people..." (Report commission on Defence, Chamber, 2015-16, 20 April 2016, CRIV 54 COM 388, p. 27). The commission reports, grouped by legislative session and commission, can be found on the website of the Belgian Chamber of Representatives, https://www.dekamer.be/kvvcr/showpage.cfm?section=/cricra&language=nl&cfm=dcricra.cfm?type=comm&cricra=cri&count=all. Back
³⁴ Art. 2 of the Protocol agreements (PAs) of 17 January and 13 March 2015 “betreffende de steun van Defensie aan de Geïntegreerde Politie voor bewakingsopdrachten.” Back
³⁵ Art. 184 of the Constitution. Back
³⁶ N. Lagasse, supra note 33, pp. 74-75. Back
³⁷ Act of 5 August 1992 “op het politieambt”, S 22 December 1992. Back
³⁸ Art. 14 APF; N. Lagasse, supra note 33, p. 73 and Report commission on Defence, Chamber, 2014-15, 7 January 2015, CRIV 54 COM 046, p. 5. Back
³⁹ Art. 7/5 of the APF. Back

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January 2015 and 15 March 2015 (PAs) embody the specific interpretation of all these limitations on the armed forces’ assignment in case of OVG (see infra).

The current limitations are in stark contrast with military’s domestic role throughout most of Belgian history. With local police lacking the necessary numbers, a gendarmerie that was still weak and scattered, and a slow and ineffective civic guard, the military was often forced to offer their services to overwhelmed local authorities during the 19^th century and the first half of the 20^th century. ⁴⁰ While the armed forces remained deliberately passive during the anti-Orangist riots of 1834, ⁴¹ they enforced public order through ruthless repression in multiple confrontations during the rise of the socialist movement at the end of the 19th century. ⁴² This use of military means in the repression of socio-economic and political demands continued on the eve of the Great War and during the interbellum (e.g. the strikes of 1912, 1913, 1932 and 1936). ⁴³ After the World War II, the armed forces were called to the streets on several more occasions, most notably during the tense period of the Question Royale (1950), the strikes against the Eenheidswet (1961) and in the period of terrorist acts of the Cellules Communistes Combattantes and the Brabant Killers (1985). ⁴⁴ The exact role of the military during all these events changed drastically, as the military’s heavy-handed repression and the professionalization and ascent of the police and gendarmerie ended the reign of the military as the primary enforcer of public order. Despite this clear evolution towards an externally focused military, it is undeniable that, since the 9/11 attacks, the domestic tasks of the armed forces have garnered more attention from policymakers. ⁴⁵

The shift towards a more expeditionary military did not mean that it became legally impossible to call upon the military as a last ditch effort to quash unrest. ⁴⁶ However, the character of this unrest has seen an evolution from events of a socio-economic and political nature to those of a non-socio-economic nature (i.e. terrorism). The deployment in 1985 was a response to the bombings by the Cellules

⁴⁰ L. Keunings, Des polices si tranquilles. Une histoire de l'appareil policier belge au XIXe siècle (Louvain-la-Neuve, Presses Universitaires de Louvain, 2009), pp. 19-46, No. 41. Back
⁴¹ G. Deneckere, ‘De plundering van de orangistische adel in april 1834: De complottheorie voorbij’, Vol. 26 No. 3-4 Belgisch tijdschrift voor nieuwste geschiedenis 1996, https://www.journalbelgianhistory.be/nl/system/files/article_pdf/BTNG-RBHC%2C%2026%2C%201996%2C%203-4%2C%20pp%20029-063.pdf, pp. 29-63 and M. Draper, see supra note 22, pp. 37-40. Back
⁴² B. De Ruyver, ‘De transformatie van het Belgische strafrecht tegen de achtergrond van de politieke en sociaal-economische ontwikkelingen in het laatste kwart van de negentiende eeuw’, in D. Heirbaut & D. Lambrecht (eds.), Van oud en nieuw recht (Antwerp, Kluwer, 1998), pp. 200-202; L. Van Outrive, Y. Cartuyvels & P. Ponsaers, Sire, ik ben ongerust: geschiedenis van de Belgische politie 1794-1991 (Leuven, Uitgeverij Kritak, 1992), pp. 42-43 and L. Keunings, supra note 40, pp.47-86. Back
⁴³ G. Deneckere, ‘De algemene staking in 1913. Gerafineerde conflictbeheersing aan de vooravond van de eerste wereldoorlog’, Vol. 22 No. 3-4 Belgisch tijdschrift voor nieuwste geschiedenis 1991, https://www.journalbelgianhistory.be/nl/system/files/article_pdf/BTNG-RBHC%2C%2022%2C%201991%2C%203-4%2C%20pp%20451-520.pdf, pp. 495-502 and P. Leloup, Private en commerciële veiligheidszorg in België. Een historisch-criminologisch onderzoek (1870-1934) (Antwerp, Maklu, 2014), p. 48. Back
⁴⁴ L. Van Outrive et al., supra note 42, pp. 186 and 244 et seq and J. Velaers, ‘De Grondwet en de krijgsmacht’, in A. De Becker et al. (eds.), supra note 8, p. 99. Back
⁴⁵ Report joint commission on Defence and military acquisitions, Chamber, 2000-01, No. 0936/001, p. 9; P. DE CREM, “Politieke oriëntatienota - juni 2008” (Brussels, Defensie, 2008), http://www.pieterdecrem.be/fileadmin/MEDIA/docs/Politieke_Orientatienota_NL_fin__25-06_12u_.pdf, pp. 7 and 11-12; S. Vandeput, De strategische visie voor Defensie 29 juni 2016 (Defensie, Brussels, 2016), https://www.mil.be/sites/mil.be/files/pdf/strategic-vision-belgian-defense-nl.pdf, pp. 55-58. Back
⁴⁶ L. Van Outrive et al., supra note 42, pp. 33 et seq and J. Campion, ‘Militaire actoren en accenten in de veiligheidszorg in twintigste-eeuws België’, Vol. 57 No. 4 Tijdschrift voor Criminologie 2015, pp. 399 et seq Back

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Communistes Combattantes (CCC) and the deadly armed robberies by the Brabant Killers. ⁴⁷ This makes the nature of OVG more comparable to the 1985 deployment than to any prior deployment. Today's legal and security landscapes, however, have undergone major changes compared to the late 20th century. The gendarmerie, which was a part of the armed forces for a long time, was first demilitarized in 1990 and subsequently disbanded in 2001. This disbandment and the birth of the new Integrated Police on Two Levels dramatically changed the Belgian security landscape. The legal implications of these changes for the deployment of the military were, however, not earth shattering, as the underlying principles remained unaltered.

2. Methods of deployment

From the analysis of the current legislation regulating this kind of peacetime military deployment, one can distinguish two different methods of deployment. Firstly, there is the possibility of a requisition of the military by a lower government, such as the mayor of a municipality and the governor of a province, or by the Commissioner-General of the Federal Police. Secondly, a deployment can ordered by the King. The next paragraphs will discuss both methods, as the PAs of 17 January and 13 March 2015 mention both methods of deployment.

A. Requisition

i. Concept and modalities

Legal literature describes a requisition as "a procedure where a public authority ensures itself of the cooperation of certain persons, and/or temporarily appropriates goods in exceptional circumstances of public necessity." ⁴⁸ This requires a statutory basis detailing the purpose and conditions of the requisition. ⁴⁹ This method gives actors, from whom the armed forces are independent, some form of control over the military in situations of necessity. ⁵⁰ The law grants this power only to a few actors, the mayor , ⁵¹ the governor ⁵² and the Commissioner-General of the Federal Police ⁵³ being the most important. ⁵⁴ The King has not been granted such a power, because as Commander-in-Chief of the armed forces with the constitutional duty to maintain public order he can order a deployment and thus needs no such power (see infra). ⁵⁵ In cases of requisition, the men and means of the armed forces are called upon to maintain public order. However, the provisions regulating the powers of requisition of the abovementioned governments all articulate the conditions that allow for requisition differently. The mayor (or his replacement) can call upon the military “to maintain or restore public order”, “in case of disaster, calamity, damage, riot, malicious gatherings or serious and imminent threats to public

⁴⁷ The CCC, a communist extremist group, carried out 14 bombings in 1984-1985. The Brabant Killers, Belgium’s most notorious and elusive criminal gang, carried out a multitude of armed robberies between 1982 and 1985, killing 28 and wounding 40. Back
⁴⁸ C. Havard, Manuel pratique de droit communal en Wallonie (Bruges, Die Keure/La Charte, 2018), p. 370. Back
⁴⁹ E. Haesbrouck, ‘Opvordering van de krijgsmacht tot handhaving van de openbare orde’, Vol. 6 Jura Falconis 1969-70, https://www.law.kuleuven.be/apps/jura/public/art/6n5/haesbrouck.pdf, p. 311 and C. Havard, supra note 48, p. 370. Back
⁵⁰ E. Haesbrouck, supra note 49, p. 306. Back
⁵¹ Art. 43 Act of 7 December 1998 "tot organisatie van een geïntegreerde politiedienst, gestructureerd op twee niveaus", i>BS 5 January 1999. Back
⁵² Art. 129 Provincial Act of 30 April 1836, BS 27 November 1891. Back
⁵³ Art. 111 Act of 7 December 1998 "tot organisatie van een geïntegreerde politiedienst, gestructureerd op twee niveaus." Back
⁵⁴ Other authorities able to requisition the armed forces are the arrondissementscommissaris and the president of a polling station. Back
⁵⁵ Art. 167 and 37 Constitution; Report plenary session, Chamber, 1886-87, 24 December 1886, p. 295; E. Haesbrouck, supra note 49, p. 310-312 and J. Velaers, supra note 44, p. 101. Back

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order” and only “when the means of the police services are insufficient.” The governor can requisition the force publique (i.e. the police and/or the military) in case of “turbulent gatherings, riot or in case of violent resistance to the execution of the laws and lawful regulations.” The Commissioner-General ⁵⁶ can, “to maintain public order and execute the tasks of judicial policing, when the means of the Federal police are insufficient, requisition the support of the armed forces, when only they can provide the necessary technical and human means.” A requisition must be done in writing. The ministerial directive on public order of 1987 (see supra) suggests using the form prescribed in a French decree from 1791, which still appears to be in force today. ⁵⁷

While all these provisions serve the same purpose, the wording utilized is substantially different, making these articles rife with inconsistencies. To start, requisition by the mayor and governor is allowed when “specific” events occur. The mayor’s provision is, however, enlarged by the addition of the rather generic phrase “or serious and imminent threat to public order.” The wording of the Commissioner-General’s provision is even broader than that. The phrasing of the governor’s article is the most limited, yet it remains sufficiently ambiguous to allow for both a sensu stricto and sensu lato interpretation of the events allowing for military deployment. Additionally, where a requisition by the mayor or the Commissioner-General explicitly require that the means of the police must be inadequate, one finds no such prerequisite in the provision on requisition by the governor. A possible explanation for this might be that, as the governor does not command a police force himself, he has less (direct) access to information on the adequacy of Local and Federal Police means. Nevertheless, this longstanding rule is implicitly present in all instances of domestic military deployment and requests for military support. A last question of consistency flows from the long-debated issue of the moment in time at which a requisition can be made. Is a preventive ⁵⁸ requisition possible? The original 1836 text only allowed the mayor to call upon the armed forces when the disturbance of public order had already materialized. ⁵⁹ Nonetheless, with the addition of the words “serious and imminent threat to the public order” a preventive requisition became possible. After all, a “threat” must be understood as a disturbance that has not yet materialized. Hence, a requisition is allowed to counter a serious and imminent disturbance that has not yet materialized. ⁶⁰ The provision concerning the governor, in conjunction with his subsidiary position in relation to the mayor, leaves no room for a preventive requisition. The wording of the power of the Commissioner-General is sufficiently ambiguous on this point to allow both interpretations.

ii. Control mechanisms

Within Belgium's constitutional monarchy, institutional control over the armed forces is exercised by way of Montesquieu’s separation of powers ⁶¹ between the legislature, the executive and the judiciary. Control over the armed forces is not divided equally between these three branches. As is the case in

⁵⁶ And the officers appointed by the King, after joint nomination by the ministers of Internal Affairs, Justice and Defence. Back
⁵⁷ Ministerial directive on public order maintenance of 10 December 1987, No. 3.08; Art. 22 Decree of 26 July-3 August 1791 “relative à la réquisition et à l’action de la force publique contre les attroupements”, Pas. 1834, Tome III, p. 141 and Art 569, 6° Code of Civil Procedure. Back
⁵⁸ The term “preventive” must be seen independently from the concepts of preventive and preemptive use of force in international law. Back
⁵⁹ J.B. Bivot, Commentaire sur la loi communale de la Belgique, du 30 mars 1836 modifiée par les lois de 1842 et 1848 (Brussels, Librairie de Deprez-Parent, 1849, 4th ed.), p. 126 and E. Haesbrouck, supra note 49, p. 307. Back
⁶⁰ Ministerial Directive public order Maintenance of 10 December 1987, BS 19 December 1987, pp. 19094-190100, No. 3.01; D. Haché et al., supra note 23, pp. 142-143 and J. Claerman, Operation Viligant Guardian en militaire openbare ordehandhaving doorgelicht: de juridische zin en onzin van militairen op straat (Ghent, Ghent University, 2018), https://lib.ugent.be/fulltxt/RUG01/002/479/291/RUG01-002479291_2018_0001_AC.pdf, pp. 51-52. Back
⁶¹ J. Clarenne, et al., supra note 14, p. 434; see also the structure of the Venice Commission report, supra note 14. Back

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many other nations, the supremacy of the Belgian executive in controlling the armed forces is evident. ⁶² As multiple actors within the executive can exercise control over the armed forces, their relation to one another is interesting. When considering the question whether a higher government can order or forbid a requisition of the armed forces by a lower government, we must look at the mechanism of “administrative oversight”, and other means by which a higher government can apply (legal or political) pressure upon the lower government. Since the federalization of the Belgian State, the regional governments (or the governor in case the lower government is a municipality) are the overseeing government. In general, overseeing governments can review the decisions of a lower government on their legality and adherence to public interest, and suspend or nullify them. Hence, an illegal requisition or a requisition that is not in the public interest is susceptible to suspension or nullification by the overseeing governments. Normally, the overseeing government cannot take a decision instead of the lower government. This is nevertheless possible through “coercive oversight” whereby the overseeing government can enforce measures prescribed by law after the term prescribed in a notice of default has passed. ⁶³ As the requisition of the military is not a measure prescribed by law, but remains a political judgement in a dire situation, the overseeing government cannot enforce such an action. However, the governor can use his own power of requisition in case of inaction by a mayor. A higher government can also attempt to reach a desired outcome through the appointment or dismissal of cooperating or defiant lower governments respectively. In 1836, the mayor was still appointed and dismissed by the King. ⁶⁴ Because of this, commentators concluded that, while the mayor had no legal obligation to obey, an order could be given with the option to either do as commanded or be dismissed. ⁶⁵ This conclusion seems rather generous. While an order can still be given, ⁶⁶ dismissal was (and still is) only possible in cases of clear misconduct or grave incompetence. The governor, as an agent of the central government, ⁶⁷ was equally appointed and dismissed ⁶⁸ by the King, which led to the conclusion that he had to follow the orders of his superior government. ⁶⁹ Since the federalization, the mayor and governor are appointed and dismissed by the regional governments. ⁷⁰ This appears to break the hierarchical bond between both the mayor and the governor, and the federal level. The governor, however, remains an agent of this government on the local level and is appointed and dismissed upon unanimous advice of the federal Council of Ministers.

The legislature provides a counterweight to the executive’s dominance over the military. By passing the legislation on the requisition, they mark the boundaries within which the executive must operate, and by asking questions in parliament, they can hold the executive to account. Nonetheless, as we

⁶² J. Velaers, supra note 44, pp. 66-67. Back
⁶³ Art. 162, second paragraph, 6° of the Constitution; J. Dujardin, J. Vande Lanotte, J. Goossens & G. Goedertier, Basisbegrippen publiekrecht (Bruges, Die Keure, 2014, 7th Ed.), pp. 9-15 and J. Vande Lanotte & G. Goedertier, supra note 10, pp.1029-1031 and 1220-1223. Back
^{Back

⁶⁵
E. Haesbrouck, supra note 49, p. 308.
Back

⁶⁶
Art. 6, VIII, last paragraph of the special law of 8 August 1980 “tot hervorming der instellingen”, BS 15 August 1980.
Back

⁶⁷
P. Van den Eeckhout, ‘De provincies’ in P. Van den Eeckhout & G. Vantemsche (eds.), Bronnen voor de studie van het hedendaagse België (19e-20e eeuw) (Brussels, Koninklijke Commissie voor Geschiedenis, 2009, 2nd Ed.),

http://commissionroyalehistoire.be/nl/biblioNumerique/bronnen_2009_nl.html, p. 109.
Back

⁶⁸
The reasons for dismissal are not determined by law or decree (e.g. Flemish Government, Interpretatie personeelsstatuut PG: afzetting gouverneur (art. 8),

https://overheid.vlaanderen.be/personeel/regelgeving/interpretatie-personeelsstatuut-pg-afzetting-gouverneur-art-8).
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⁶⁹
E. Haesbrouck, supra note 49, p. 309.
Back

⁷⁰
Special Act of 13 July 2001 “houdende overdracht van diverse bevoegdheden aan de gewesten en de gemeenschappen”, BS 3 August 2001.
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have seen in the previous paragraphs, the legislation concerning requisition contains several inconsistencies. Legislative action to resolve these inconsistencies might be useful.

Lastly, the judiciary might exert control over a requisition in several ways. Through the criminalization of both the unlawful requisitioning of the armed forces ⁷¹ and the refusal of a lawful requisition ⁷² the courts ensure that governmental abuse of power and military disobedience to civil authority do not go unpunished. ⁷³ Besides the normal courts, the administrative litigation section of the Council of State plays an important role in judicial control, as it can suspend and annul “acts and regulations of administrative governments” when they are unlawful and certain standards of admissibility are met. ⁷⁴ A decision to requisition the armed forces clearly is an “act” of an “administrative government”, but some questions on admissibility remain. Which persons or organizations have the required interest to demand an annulment? While requisitioned soldiers can clearly be disadvantaged by a requisition, any disadvantage to another citizen, or a NGO protecting civil rights, is less evident but certainly not unthinkable. Furthermore, any decision to deploy or requisition the armed forces might be considered as an acte de gouvernement. ⁷⁵ This highly controversial French theory states that some decisions, because of their quintessential political nature or consequences, are excluded from judicial oversight. While there are some indications of acceptance of this theory in the preparatory works of the law on the Council of State, the idea of the theory goes against the essence of the rule of law and jurisprudence is reluctant to explicitly confirm it. The argument of Velaers that the acte de gouvernement theory is inapplicable to decisions to deploy/requisition the military, because the law limits the political sovereignty of all governments, makes sense. In any case, when the Council of State decides on a case concerning the deployment or requisition of the military, it should exercise its oversight with the necessary caution. ⁷⁶

B. Public order deployment ordered by the King

Some members of parliament first thought, and some opponents of the operation still think, that OVG was the result of a requisition by the mayor, as the provision on this kind of requisition was mentioned in the PAs. ⁷⁷ When we look at the PAs it is quite clear why confusion is possible. These formalized agreements between the Ministers of Defence and the Interior on the general rules applicable to a deployment of the military for “surveillance missions” mention both the requisition by the mayor and the Commissioner-General, in addition to some other legal provisions. This can be explained by point 1.3 of the PAs, which states that “the provisions of this agreement do not limit the right of other governments to requisition the armed forces.” The PAs, however, lack general legal authority, as is confirmed by the fact that the contents are not publicly available. ⁷⁸ A Note from the Federal Police to

⁷¹ Art. 254-256 Penal Code. Back
⁷² Art. 259 Penal Code. Back
⁷³ The military courts were abolished in times of peace back in 2003 (Art. 157 Constitution). Members of the armed forces fall within the jurisdiction of the civilian courts and the civilian public prosecutor. Back
⁷⁴ J. Vande Lanotte & G. Goedertier, supra note 10, pp. 1312-1349. Back
⁷⁵ P. D'Argent, supra note 10, pp. 202-203 and J. Velaers, supra note 44, pp. 120-122. Back
⁷⁶ J. Velaers, see supra note 44, p. 122. Back
⁷⁷ Report commission on Defence, Chamber, 2014-15, 18 March 2015, CRIV 54 COM 119, p. 18; Report commission on Defence, Chamber, 2015-16, 25 November 2015, CRIV 54 COM 277, p. 42; Questions and Answers (Q&A) Chamber, 2014-15, 4 February 2015, No. 54/015, p. 210 (Q. No. 134 R. Hedebouw) and Q&A Chamber, 2014-15, 12 March 2015, No. 54/024, p. 95 (Q. No. 242 S. Van Hecke) and J. Saintes, L’opération Vigilant Guardian (ou Homeland). 4 Ans de présence des soldats belges dans les rues, 23 May 2019, https://www.cnapd.be/militaires-en-rue-elections-2019/. The questions and answers bulletins, grouped per legislative session, can be found on the site of the Belgian Chamber of Representatives: https://www.dekamer.be/kvvcr/showpage.cfm?section=/qrva&language=nl&cfm=qrvaList.cfm. Back
⁷⁸ The PAs were obtained through a freedom of information request; N. Lagasse, supra note 33, p. 91. Back

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the Department of Defence (Note FP-DOD) of 16 January 2015 states that “the Federal Police wants to requisition the armed forces.” While this choice of words appears very non-committal, the armed forces treated this as an official requisition. ⁷⁹ The PAs, however, also state in no uncertain words that it is “the cabinet” that decides on the deployment of the military. As we already established that the Federal Government does not need the power of requisition, can we conclude that OVG is both a requisition and deployment ordered by the cabinet at the same time? While it is certainly possible for both methods to coexist, a combination becomes harder to explain when both pertain to the same operation. The wording of the PAs thus strongly points towards the order of the cabinet superseding and replacing the requisition.

What legal provisions are mentioned in the PAs justifying a deployment by order of the cabinet? First of all, there is the Act of 20 May 1994 on the periods, standing, use and preparation of the armed forces ⁸⁰ (the Act of 1994), which intended to define more clearly the administrative framework surrounding the different situations in which the post-Cold War Belgian armed forces could find themselves. Secondly, article 151 of the Program Act of 2 August 2002 is mentioned. This provision will not be discussed as its role in providing a legal basis for OVG is unclear and arguably insignificant. ⁸¹ The justification of the federal executive’s role nevertheless appears to be incomplete. For instance, it is quite peculiar that no reference is made to the Constitution, or the Royal Decree of 6 June 1994 on the forms of operational deployment (…) of the armed forces ⁸² (the Royal Decree of 1994) which executes the Act of 1994, and indicates what the armed forces’ missions are. An answer of the Minister of Defence to a parliamentary question does indicate, however, that both also play a role in OVG. ⁸³ The next sections will delve into these statutes, their legal provisions pertaining to public order deployments, and the history of the principles found within these provisions, identifying several particularities and issues.

i. The King as Commander-in-Chief

As established above, the Constitution states that the King is the Commander-in-Chief of the armed forces, hence also establishing his right to deploy them. This part of the Constitution has remained fairly unaltered since it was adopted in 1831. For centuries, taking up command over the armed forces was the quintessential personal prerogative of kings and queens. This was also the reality in nineteenth-century Belgium. ⁸⁴ The power of the monarch to call out the military to maintain public order, however, has not been uncontested. After all, the aforementioned French decree from 1791 only allowed the army to maintain public order after a requisition. ⁸⁵ On the other hand, a French Decree of 1789 posed that public order maintenance took place by the authority and under supervision of the

⁷⁹ V. Vermeire, Een exploratie van de recente inzet van het leger op Belgisch grondgebied (Ghent, Ghent University, 2016), https://lib.ugent.be/fulltxt/RUG01/002/273/333/RUG01-002273333_2016_0001_AC.pdf, pp. 48-49 and P. Degezelle, Homeland Ops: Tenuitvoerlegging van het juridisch kader, https://www.ismllw-be.org/session/2016-10-24%20DEGEZELLE%20P.pdf Back
⁸⁰. Act of 20 May 1994 “betreffende de perioden en de standen van de militairen van het reservekader alsook betreffende de aanwending en de paraatstelling van de Krijgsmacht”, BS 21 May 1994. Back
⁸¹ J. Clarenne et al., supra note 14, p. 463, footnote 229; J. Claerman, supra note 60, pp. 43-44. Back
⁸² Royal Decree of 6 June 1994 “houdende bepaling van de vormen van operationele inzet hulpverlening en militaire bijstand, en van de voorbereidingsactiviteiten met het oog op de aanwending van de krijgsmacht”, BS 20 July 1994. Back
⁸³ Q&A Chamber, 2014-15, 4 February 2015, No. 54/015, p. 210 (Q. No. 134 R. Hedebouw). Back
⁸⁴ J. Vande Lanotte & G. Goedertier, supra note 10, p. 1121 and P. D'Argent, supra note 10, pp. 185-188. Contra: M. Clement, R. Senelle & E. Van De Velde, Handboek voor de Koning (Tielt, Lannoo, 2004), p. 223. Back
⁸⁵ Art. 20 Decree of 26 July-3 August 1791 “relative à la réquisition et à l’action de la force publique contre les attroupements”. Back

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King. Many early Belgian cabinets used this decree to call upon the armed forces. ⁸⁶ In 1850, the civil and military authorities agreed that the military could only be deployed after a requisition, because maintaining public order was primarily a task of the local governments. The military nonetheless experienced this submission to the local civilian authorities as too absolute, as it hindered them in fulfilling their responsibility of maintaining order. This led to a long discussion, which divided the nation into two camps, namely proponents (Catholics), and opponents (Liberals) of a more independent military. In 1857, the question seemed resolved in favour of the latter. However, from the 1870s onward, the military would primarily become a tool in the hands of the central government. ⁸⁷

During the country’s history, three Kings commanded the Belgian forces. King Leopold I led the newly formed Belgian army during the Ten Days' Campaign against the Dutch; King Albert I, "the Soldier-King", was heavily involved in Belgium's struggle against the German Empire during the First World War; and King Leopold III led the troops during the Battle of Belgium in the Second World War. Although the command of the armed forces was the King's prerogative, any use of this power theoretically required the signature of a minister (a contraseign) because royal irresponsibility was already included in the Constitution of 1831. King Leopold I, however, believed that this contraseign was only required during times of peace. ⁸⁸ Leopold's view did not have much of an impact during his reign, for his Minister of War was constantly by his side during the Campaign. A more problematic application of Leopold I’s view was the surrender of Belgium to the Third Reich by his namesake and descendent Leopold III. The experiences of the world wars, and the post-war international landscape urged the decision to move towards the current interpretation of the Constitution (see supra), thereby confirming the contraseign requirement and hence the important position of the cabinet. ⁸⁹

The Constitution requires that powers be accorded to the actors it prescribes, and that the prescribed actors exercise these powers. ⁹⁰ For the deployment of the armed forces, this means that, to be constitutionally correct, the Law of 1994 and the Royal decree of 1994 should state that "the King” (and not the “cabinet” or “Council of Ministers”) takes a decision to deploy. In turn, the cabinet should then take this decision with formal royal “approval”. Normally, this would take the form of royal decree. According to some such a formal approach is not obligatory for a decision to have actual legal existence. ⁹¹ Alas, theory and practice do not correspond. In the preliminary draft of the Act of 1994, as submitted to the Council of State, the authors of the act wanted to grant the cabinet, the Minister of Defence and the governments with power of requisition a say in the deployment of the military. ⁹² The Council of State pointed towards the unconstitutionality of this delegation to the cabinet and Minister, ⁹³ upon which the flawed parts of the text were removed. The same unconstitutional provisions were, however, added to the Royal Decree of 1994, thereby legally enshrining the practice

⁸⁶ E. Bernimolin, ‘Attroupements ou émeutes’, Revue de l’administration et du droit administratif 1887, p. 476; L. Van Outrive et al., supra ² note 24, p. 43. Back
⁸⁷ L. Keunings, supra note 24, pp. 19-46, No. 44-45 and pp. 47-86, No. 26. Back
⁸⁸ M. Clement et al., supra note 84, p. 224. Back
⁸⁹ Report of the commission tasked with advising on the application of the constitutional principles concerning the prerogatives of the King and the relations between the constitutional powers, BS 6 August 1949, pp. 7596-7597. Back
⁹⁰ Art. 33 Constitution. Back
⁹¹ N. Lagasse, supra note 30, p. 32; P. D’Argent, ‘Le Roi commande les forces armées’, No. 1 Revue Belge de Droit International 1994, p. 216 and J. Velaers, supra note 44, p. 86. Back
⁹² Adv. CoS on the draft of the Act “betreffende de aanwending van de krijgsmacht, de paraatstelling, alsook betreffende de periodes en standen waarin de militair zich kan bevinden”, Senaat, 1993-94, No. 927/1, p. 14. Back
⁹³ Adv. CoS on the draft of the Act "betreffende de aanwending van de krijgsmacht, de paraatstelling, alsook betreffende de periodes en standen waarin de militair zich kan bevinden”, supra note 92, p. 21. Back

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that had formed after the Korean War, where a decision to deploy was not taken by the cabinet with royal “approval”, but by the Council of Ministers without formal royal “approval”. ⁹⁴ For a second time the Council of State spoke out against this unconstitutional state of affairs, to no avail. ⁹⁵ While the practical difference is rather small, the legal consequences might possibly be severe (see infra). The PAs continue the troublesome practice of delegating the King’s command to the cabinet (or in practice, the Council of Ministers), as they state that “the cabinet” takes the decision to deploy the armed forces. In and of itself, the fact that the Royal Decree of 1994 indicates which governments must decide on certain deployment is also problematic. After all, the Act of 1994 states that “the King determines the kinds of operational deployment,” not that the King has the authority to determine which actor of the executive can order a certain operational deployment. In the second and third section of article 1 of the Royal Decree of 1994, the King thus erroneously delegates a part of his command over the armed forces. ⁹⁶

As concerns public order operations, the Royal Decree of 1994 states that the respective government with the power of requisition decide on such deployment. Why the competence of the requisitioning governments is reiterated is unclear: is the right of these governments not already guaranteed in specific laws (see supra)? ⁹⁷ One could see this provision as an argument against the power of the King to command a public order deployment, as no law grants power of requisition to the King. However, because it is accepted that the King’s power to deploy the military to maintain or restore public order flows from his constitutional position as Commander-in-Chief and head of the executive, it is more likely that this provision of the Royal Decree of 1994 is a mere confirmation of the power of certain other executive actors to demand the assistance of the armed forces, and was not intended to exclude a deployment by the King.

ii. Control mechanisms

Regardless of what legal form the military deployment takes, a civilian government takes the decision. Again, the executive plays the most important role in the deployment, but to say that the executive enjoys unlimited freedom and that the decision to deploy armed forces in the streets can be left completely to political whim is a step too far. The King’s decision to deploy the armed forces for a public order operation is controlled by the same principles that govern the requisition. All three branches of government have a role to play in ensuring that all rules and principles are respected. This section will focus the role of the judiciary and legislature, as the control mechanisms within the executive are of a highly practical nature and are discussed in the next part of the article.

Parliament's role in military public order operations has potential that, nevertheless, remains underutilized. Because there is no specific provision in the Constitution granting the executive the power to determine the missions of the armed forces, this task falls to the legislature. By thoroughly describing the public order mission of the armed forces, the executive's “playground” would be more precisely defined. Too strict of a legislative intervention, however, could affect the usefulness and efficiency of a (domestic) military deployment and thereby be unconstitutional. In the Act of 1994, the legislature delegated its power to determine the forms of operational deployment to the King, thereby

⁹⁴ P. D'Argent, supra note 10, pp. 197-198; P. D’Argent, supra note 91, p. 216-219 and J. Velaers, supra note 44, pp. 96-99. Back
⁹⁵ Adv. CoS No. 56.324/4 on the Royal Decree of 25 July 2014 “tot wijziging van diverse bepalingen betreffende het statuut van de militairen in het kader van de deelstand ‘in militaire bijstand’”. Back
⁹⁶ Adv. CoS No. 23.481/9 on the Royal Decree of 6 July 1994 “houdende bepaling van de vormen van operationele inzet hulpverlening en militaire bijstand, en van de voorbereidingsactiviteiten met het oog op de aanwending van de krijgsmacht”, BS 20 July 1994; Adv. CoS No. 56.324/4, supra note 95. Back
⁹⁷ Adv. CoS No. 23.481/9, supra note 96. Back

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further solidifying the executive’s leading role. Additionally, parliament exercises its control function through its defence committee and discussion in the plenary meeting of the Chamber of Representatives. In the case of OVG, most questions asked by members of parliament revolved around topics such as the legal basis for the deployment, the size of the deployed contingent, the rules of engagement and the cost of the operation. While there certainly have been a fair amount of these questions, the influence they have had seems negligible. Lastly, the Chamber of Representatives has investigative powers, as it can establish a parliamentary inquiry commission. ⁹⁸ While the French parliament compiled a thorough report ⁹⁹ on the role of the armed forces on home soil, the Chamber did not use its investigative powers to look specifically at OVG. Clarenne et al. thus rightfully concluded that parliament's role in OVG (and military public order deployment in general) is extremely limited. ¹⁰⁰

The unconstitutional practice, whereby the decision to deploy the military (at home or abroad) is not taken with the formal “approval” of the King (e.g. a royal decree), but solely by the Council of Ministers ¹⁰¹ could make judicial control of this decision very problematic according to D’Argent. Making abstraction of his discussion of the acte de gouvernement-theory (see supra), he argues that the sole decision by the Council of Ministers is legally baseless and is not a formal administrative act, and thus cannot be annulled by the Council of State’s administrative litigation section. ¹⁰² The jurisprudence of the Council of State indicates that "the decisions of the Council of Ministers must normally be formalised in administrative decisions by administrative governments who have the competence to do so. Only these decisions can be brought before the Council of State." ¹⁰³ The decision to deploy the military on 17 January 2015 was “formalized” in the minutes of that session of the Council of Ministers. If this does not constitute a sufficient formalization, this would mean that every decision to deploy the armed forces would be immune from judicial review (thus having the same effect as the acte de government-theory [see supra]). This would hardly be compatible with the rule of law. Therefore, when this decision were to be brought before the Council of State, plaintiffs with the required interest could bring forth the argument that the decision to deploy was taken by the wrong actor. However, since the beginning of OVG no attempts have been made to fight the deployment before the Council of State.

The fact that it is unconstitutional to leave a decision to deploy the military to the Council of Ministers, without any form of royal “approval” raises another interesting question: is the military (or an individual soldier) obliged to carry out this order? The Constitution and military disciplinary law allow for a refusal when the order is flagrantly, gravely and disputably unlawful/unconstitutional or clearly entails the commission of a criminal offence of sufficient gravity. ¹⁰⁴ The fact that it appears to be accepted that the Council of Ministers deploys the military, makes it difficult to argue that the

⁹⁸ Art. 56 and 101 of the Constitution and J. Velaers, supra note 44, pp. 115-119. Back
⁹⁹ Commission de la Défense Nationale et des Forces Armées, Rapport d’information déposé en conclusion des travaux d’une mission d’information sur la présence et l’emploi des forces armées sur le territoire national, Assemblé Nationale, 22 June 2016, n°3864, http://www.assemblee-nationale.fr/14/pdf/rap-info/i3864.pdf. Back
¹⁰⁰ J. Clarenne et al., supra note 14 pp. 465-466. Back
¹⁰¹ Q&A Senaat, Q. No. 5-9638, 19 July 2013 (B. Anciaux). Back
¹⁰² P. D'Argent, supra note 10, pp. 197-198 and 202. Back
¹⁰³ CoS Herin, No. 188.934, 17 December 2008. Back
¹⁰⁴ Art. 159 of the Constitution; Art. 171, 5° of the Act of 28 February 2007 “tot vaststelling van het statuut van de militairen en kandidaat-militairen van het actief kader van de Krijgsmacht”, BS 10 April 2007; Art. 11, §2 of the Act of 14 January 1975 “houdende het tuchtreglement van de Krijgsmacht”, BS 1 February 1975; CoS gemeente Riemst, No. 29.560, 15 March 1988 and CoS Michiels, No. 35.522, 18 September 1990. Back

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unlawfulness of the order is flagrant, grave and indisputable. ¹⁰⁵ Additionally, while the order might be unconstitutional, it does not ipso facto entail that a criminal offence will be committed.

III. Operation Vigilant Guardian in practice: legal issues and control mechanisms

This part will focus on how OVG has been put into practice and how well the operation corresponds to the legal exigencies described above. It will discuss the more practical legal conditions of the deployment and its subsidiarity and proportionality. To check whether OVG respects these conditions, one must take a close look at the reasons behind the deployment (i.e. the terror threat and the state of the police services), the tasks the military executes during the operation and the legal competences of the soldiers patrolling the streets.

1. Motivation, execution and control of the operation

Shortly after the Charlie Hebdo attack and Verviers-raid, and without a real planning phase, ¹⁰⁶ the Belgian military was ordered to the streets. The motivation behind this decision seems to be twofold. On the one hand, the deployment intended to increase the amount of security forces in the streets, thereby increasing the (theoretical) deterrence level. ¹⁰⁷ The Government deemed it impossible to make additional requests from Local and Federal Police without forcing them to neglect other crucial police tasks. Research has shown that due to the terrorism threat and after almost a decade of continuous budget cuts, the capabilities of the Belgian Federal Police have been stretched to the limit. Since 2013, the police has seen 394 employees leave without being replaced, resulting in a current, combined shortage among the Local and Federal Police of 3.500 men/women. ¹⁰⁸ A review by the independent standing police monitoring committee (Standing Committee P) ¹⁰⁹ showed that the deployment of the military did not do much to counter the police’s capacity issues, as the capacity it freed up did not go towards those other police tasks. Yet, it did manage to alleviate some pressure by reducing overtime. ¹¹⁰ As the police legally exercises authority over the soldiers in the streets, who execute tasks normally performed by the police, one might wonder whether the Standing Committee P's oversight extends to soldiers participating in OVG. The act regulating the Standing Committee does not classify the armed forces as a police service or a “supporting service” that is subjected to oversight. ¹¹¹ So far,

¹⁰⁵ J. Velaers, supra note 44, pp. 131-134. Back
¹⁰⁶ M-M. Courtial, 2015-2020: La Défense raconte cinq ans d’opération Vigilant Guardian, À l’Avant Garde, 3 January 2020, https://defencebelgium.com/2020/01/03/2015-2020-la-defense-raconte-cinq-ans-doperation-vigilant-guardian/. Back
¹⁰⁷ W. Struys, supra note 4, p. 13. Back
¹⁰⁸ See: B. De Ruyver & J. Janssens, ‘De schaalvergroting van de Limburgse politiezones: maatwerk’, in P. Ponsaers (ed.), Naar een vrijwillige opschaling van de lokale politie (Antwerp-Apeldoorn, Maklu, 2014), pp. 23-90; P. Ponsaers & E. Devroe, "Molenbeek (maart 2016) na Parijs (november 2015)", No. 39 Cahiers Politiestudies 2016, pp. 213-237; F. Roels, Investeren in tijden van besparingen, Apache, 18 December 2014, https://www.apache.be/gastbijdragen/2014/12/18/investeren-in-tijden-van-besparingen/; A. Verhage & T. Spapens, ‘Organisatie en criminaliteit’, No. 39 Cahiers Politiestudies 2016, pp. 11-31; L. Bové, Politie kan geen nieuwe terreurdreiging aan, 3 October 2019, https://www.tijd.be/politiek-economie/belgie/algemeen/politie-kan-geen-nieuwe-terreurdreiging-aan/10168082.html and B. Maeckelbergh, ‘Het personeelstekort wordt alleen maar groter’: topman politie slaat alarm, 23 December 2019, https://www.demorgen.be/nieuws/het-personeelstekort-wordt-alleen-maar-groter-topman-politie-slaat-alarm~b9087c1a/. L. Bové, Burgemeester Brussel hekelt tekorten bij federale politie, 3 October 2019, https://www.tijd.be/politiek-economie/belgie/brussel/burgemeester-brussel-hekelt-tekorten-bij-federale-politie/10168276.html. Back
¹⁰⁹ Act of 18 July 1991 “tot regeling van het toezicht op politie- en inlichtingendiensten en op het Coördinatieorgaan voor de dreigingsanalyse”, BS 26 July 1991. Back
¹¹⁰ J. De Smet, supra note 3, p. 39. Back
¹¹¹ Art. 1, 3°; 3, 1° and 9 of the Act of 18 July 1991 “tot regeling van het toezicht op politie- en inlichtingendiensten en op het Coördinatieorgaan voor de dreigingsanalyse”, BS 26 July 1991; Art. 2, 2° of the Act of 10 July 2006 “betreffende de analyse van de dreiging” and art. 2 of the Royal Decree of 17 August 2018 “tot uitvoering van artikel 2, eerste lid, 2°, g) van de wet van 10 juli 2006 betreffende de analyse van de dreiging”, BS 12 September 2018. Back

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the Committee has also performed no specific review of the behaviour of the soldiers in the street. Out of the combined 331 pages of the year reports of 2015, 2016 and 2017, ¹¹² only one page of the 2016 report specifically talks about OVG. ¹¹³ Thus, it is reasonable to conclude that while soldiers perform tasks that are close to those of police officers, they are not under the scrutiny by the Standing Committee P or an independent institution equivalent to it. ¹¹⁴

On the other hand, the military was deployed to combat a very specific kind of militarized threat. The PAs state that military deployment is dependent on an elevated terror threat level for a specific location, as determined by the Coordination Unit for Threat Analysis (CUTA). ¹¹⁵ This unit consists of expert government officials appointed by the King, after joint nomination by the Ministers of Justice and the Interior, and determines the terror threat level without the interference of cabinet members. ¹¹⁶ Making military deployment dependent on an elevated terror threat level had two consequences. Firstly, it limited military deployment for surveillance tasks within the scope of the PA to situations of a heightened terrorism or extremism threat. ¹¹⁷ The cabinet saw the military as the go-to institution to combat a threat posed by terrorists armed with assault rifles and intent on causing a shootout in the streets or a public venue, as the police was deemed to be “outgunned”. ¹¹⁸ In the eyes of the cabinet, a heavily armed enemy had to be met by equally armed guardians. Secondly, the cabinet limited its own room to manoeuvre, as they have no control over the experts that determine the terror threat level. Recognizing that this hampered the ability to deploy troops, the cabinet announced as one of their twelve measures against terrorism (see supra), the creation of the National Security Council (NSC). ¹¹⁹ The NSC consists of several members of the federal cabinet and (when their presence is required) the head of the civilian intelligence service Veiligheid van de Staat (VSSE), the head of the military intelligence service Algemene Dienst voor Inlichtingen en Veiligheid (ADIV), the head of the Federal Police, the director of the CUTA, the chairman of the board of the Department of the Interior and representatives of the public prosecutor’s office. ¹²⁰ The cabinet wanted the NSC to have the power to raise the threat level by one level in “very specific circumstances." ¹²¹ However, during the discussion of the twelve measures against terror in the joint parliamentary committee on Justice, Defence, and the Interior, it immediately became clear that it would be impossible to find a majority to alter the act regulating the CUTA to allow the NSC to raise the threat level. Many members of the committee,

¹¹² Comité P, Jaarverslagen, https://comitep.be/jaarverslagen.html. Back
¹¹³ Comité P, Jaarverslag 2016, https://comitep.be/document/jaarverslagen/2016NL.pdf, p. 56. Back
¹¹⁴ N. Lagasse, supra note 33 p. 83. Back
¹¹⁵ Dutch: Coördinatieorgaan voor de dreigingsanalyse (OCAD); French: L’Organe de coordination pour l'analyse de la menace (OCAM); German: Koordinationsorgan für die Bedrohungsanalyse (KOBA). Back
¹¹⁶ Art. 11, §6 of the Royal Decree of 28 November 2006 executing the Act of 10 July 2006 and Art. 7 of the Act of 10 July 2006 “betreffende de analyse van de dreiging”, BS 20 July 2006. Back
¹¹⁷ Art. 3 of the Act of 10 July 2006 “betreffende de analyse van de dreiging” juncto art. 8, 1°, b) and c) of the Act of 30 November 1998 “houdende regeling van de inlichtingen en veiligheidsdiensten”. Back
¹¹⁸ N. Duquet, N. Kbiltsetskhlashvili, I. Khan & E. Woods, Armed To Kill: A comprehensive analysis of the guns used in public shootings in Europe between 2009 and 2018 (Brussels, Flemish Peace Institute, 2019), pp. 32-35 and 36-40 and Note FP-DOD, 16 January 2015. Until 2017 the collective armament of normal police units was limited to weapons chambered in 9mm (Directive GPI 62bis of 19 October 2017 “tot wijziging van de omzendbrief GPI 62 van 14 februari 2008 betreffende de bewapening van de geïntegreerde politie, gestructureerd op twee niveaus”, BS 31 October 2017, p. 97237.). Back
¹¹⁹ Royal Decree of 28 January 2015 “tot oprichting van de Nationale Veiligheidsraad”, BS 30 January 2015. Back
¹²⁰ Art. 2 of the Royal Decree of 28 January 2015 “tot oprichting van de Nationale Veiligheidsraad”. Back
¹²¹ Report joint commission on Justice, Defence and Internal Affairs, General Affairs and the Public, Chamber, 2014-15, 21 January 2015, CRIV 54 COM 066, p. 10. Back

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from both majority and opposition parties, had serious reservations concerning this competence of the new NSC. They argued that leaving the determination of the terror threat level to politicians instead of experts was a bad idea. Subsequently, this measure disappeared from the proposal.

The task of the military is to protect at-risk buildings, areas, events, and sites. This determination by the CUTA is made on a case-by-case basis and indicated by a heightened terror threat level of at least 3 out of 4. The threat level tells the public something about the severity and likelihood of the threat. Level 3 means that an attack is possible and probable. In addition to determining the threat level, the CUTA also has the power to determine the necessary countermeasures. ¹²² In practice, the latter power turns out to be less impressive than it sets out to be, for it takes the form of vague suggestions ¹²³ to another body, the Crisis Centre of the Cabinet (Crisis Centre), which resorts under the Department of the Interior ¹²⁴ and performs a risk analysis. While a “threat analysis” determines the threats, a “risk analysis” determines the weaknesses in respect to these threats, meaning it determines "the expected volume of events and the impact thereof on society (...)." ¹²⁵ Based on this risk analysis, the Crisis Centre proposes measures to the Minister of the Interior, who (sometimes in consultation with the NSC) has the final say. ¹²⁶ The Crisis Centre thus determines what sites under threat level 3 will receive military protection and the number of soldiers that will protect a given location, all within the maximum size of the detachment as determined by the Council of Ministers. ¹²⁷ The initial plan to achieve the objective was that of a stationary deployment near the at-risk locations, without having the soldiers performing entrance checks. ¹²⁸ The purely stationary modus operandi was eventually abandoned for logistical and safety reasons. Switching to patrols (sometimes partnered with members of the police forces) allowed for the protection of the same area with fewer men and bestowed upon the troops the advantage of unpredictability.

After the 2016 Brussels attacks, the Government let soldiers perform “visual checks” of luggage and bags in Brussels train stations. ¹²⁹ This practice ended without much of an explanation. It is possible that this was a result of the criticism that these “visual checks” might in fact constitute searches, which can only be performed by persons with the correct statutory competence. ¹³⁰ Soldiers, excluding members of the military police in the parliaments and members of the military intelligence service intervention team, do not possess such a competence. ¹³¹ The Department of Defence justified the

¹²² Art. 8, 1° and 2° of the Act of 10 July 2006 “betreffende de analyse van de dreiging”. Back
¹²³ Vast Comité I, Activiteitenverslag 2016 / Rapport d’activités 2016, https://www.comiteri.be/images/pdf/Jaarverslagen/Activiteitenverslag_2016_NL.pdf, p. 72 Back
¹²⁴ Royal Decree of 18 April 1988 “tot oprichting van het coördinatie- en Crisiscentrum van de regering”; W. Van Laethem & J. Vanderborght, Inzicht in toezicht (Antwerp, Intersertia, 2013), p. 330; Parliamentary inquiry tasked investigating the Brussels Attacks of 22 March 2016, Chamber, 2015-16, DOC 54 No. 1752/006, 3 August 2016, pp. 58-59 and E. Helderweirt, Van Antiterroristische Gemengde Groep (AGG) naar Coördinatieorgaan voor de Dreigingsanalyse (OCAD): Een juridische analyse (Ghent, Ghent University, 2018), https://lib.ugent.be/fulltxt/RUG01/002/479/278/RUG01-002479278_2018_0001_AC.pdf, pp. 79-82. Back
¹²⁵ Parliamentary inquiry tasked with investigating the Brussels Attacks of 22 March 2016, Chamber, 2016-17, DOC 54 No. 1752/008, 15 June 2017, p. 146. Back
¹²⁶ Parliamentary inquiry tasked with investigating the Brussels Attacks of 22 March 2016, supra note 125, p. 157. Back
¹²⁷ Art. 3.1, section 1 and 2 PA, 15 March 2015. Back
¹²⁸ Note FP-DOD, 16 January 2015. Back
¹²⁹ Addendum to the Notes FP-DOD of 16 January 2015 and 18 March 2016, 24 March 2016. Back
¹³⁰ Court of Cassation 19 March 2002, Vigiles 2002, p. 100 and P. Arnou, ‘Fouilleren’, in A. Vandeplas, P. Arnou & S. Van Overbeke (eds.) Strafrecht en strafvordering. Artikelsgewijze commentaar met overzicht van rechtspraak en rechtsleer, (Antwerp, Kluwer), pp. 50-51. Back
¹³¹ Act of 2 March 1954 "tot voorkoming en beteugeling der aanslagen op de vrije uitoefening van de door de Grondwet ingestelde souvereine machten", BS 19 March 1954 and Act of 6 July 2017 "tot wijziging van de wet van 2 maart 1954 tot voorkoming en beteugeling der aanslagen op de vrije uitoefening van de door de Grondwet ingestelde souvereine machten", BS 30 August 2017; Art. 24 of the Act of 30 November 1998 "houdende regeling van de inlichtingen en veiligheidsdiensten", BS 18 December 1998 and J. Claerman, supra note 60, pp. 65-68. Back

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practice by referring to a judgement of the Court of Cassation, ¹³² which states that "any investigation into the composition or contents of an object, freely handed over during a police intervention, does not constitute a search in the eyes of the law." ¹³³ As the soldiers were to ask permission before performing these visual checks, this practice seemed to fall within the scope of this judgement. Yet, the question of moral coercion remains largely unanswered. How freely can one give his or her consent to a soldier, dressed in full battle dress and armed with a FNC or SCAR assault rifle, who asks you to open your backpack or purse? Both police officers ¹³⁴ and soldiers must uphold a high standard of integrity because they personify the strong arm of the State. The effect that their appearance and position of authority has on citizens must not be underestimated. It is unrealistic to assume that many citizens know of their right to refuse these “visual checks” by soldiers. Thus, this begs the conclusion that the visuals checks are indeed searches, which soldiers cannot legally perform. ¹³⁵ This discussion is but a part of a more general question on the adequacy of the military’s legal competences to properly execute this operation. As there is no comprehensive, dedicated statute detailing those competences, soldiers must perform their tasks making use of just their rights as citizens. This initially created a lot of uncertainty amongst the soldiers participating in the operation: what actions were they allowed to take when they witnessed a crime, and in what circumstances were they allowed to resort to (deadly) force? These questions lost their theoretical character when soldiers had to use deadly force twice in the summer of 2017. On 21 June, an attempted bombing took place at Brussel-Centraal train station. After the detonation of the explosives failed, soldiers who were present in the station closed in on the perpetrator to arrest him. The suspect did not comply and rushed the soldiers, upon which they shot and killed him. On 25 August, a knife-wielding assailant directly targeted soldiers patrolling in Brussels, forcing a deadly use of force by the victims. The federal prosecutor investigated both these instances because both were determined to be acts of terrorism. The investigations showed that the involved members of the armed forces committed no crimes.

2. Legality: subsidiarity and proportionality

While the above-described methods of deployment have their specificities, the same principles govern both methods: the subsidiary nature of military public order maintenance to its civilian counterpart and the required proportionality of such a deployment. The European Commission for Democracy through Law (Venice Commission) elaborated on the content of these principles in its report on the democratic control of the armed forces. ¹³⁶ “Proportionality” means that the way the military is used should be commensurate with the security needs. “Subsidiarity” implies that the armed forces should only be deployed when the means of the civilian authorities are insufficient to deal with a (likely) disturbance of public order, that they should be confined to supporting the civilian authorities, and that they should be subordinated to local or national civil authorities. Additionally, this also means that this sort of deployment should be a temporary one. While not all of these prerequisites have a statutory basis, their flagrant disregard could be a danger to democracy and the rule of law. By examining the

¹³² P. Degezelle, supra note 79. Back
¹³³ Court of Cassation 19 March 2002, supra note 130, own emphasis added. Back
¹³⁴ Art. 130 of the Act of 7 December 1998 "tot organisatie van een geïntegreerde politiedienst, gestructureerd op twee niveaus." Back
¹³⁵ M. Bockstaele, W. Bruggeman, J. Bryssinckx, J. Dewinne, Y. Geyskens, A. Liners, L. Mares, D. Meert, I. Supeene & K. Van Dijck, De zoeking onderzocht (Antwerpen, Maklu, 2009), pp. 139-140. Back
¹³⁶ Venice Commission, supra note 14, p. 26. Back

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motivation and execution of the operation set out in the preceding paragraphs, we can come to an assessment of whether OVG is still a subsidiary and proportional operation.

For a start, there are two questions of particular importance. First, are the current circumstances still that extraordinarily threatening? Second, are the means of the police still insufficient to cope with the heightened terrorist threat, making a military deployment necessary and proportionate? Eurostat statistics show that in 2017 the country had 1.873 less police officers than back in 2009, when Islamic State (as the source of the current terror threat) had not yet gained global prominence. When looking specifically at the period of OVG, we see that police manpower has remained relatively stable. ¹³⁷ However, this does not take into account the greater demands on the police services due to the terror threat. While it is without question that pressure on the police increased from 2014 onward, did this make it impossible for the police to meet the demands? This is a highly debatable and subjective issue, as there is no legal standard determining when the means of the police have reached the threshold of inadequacy. However, Belgium’s precarious budgetary situation has not ameliorated over the past years, and as indicated above the impact of this on the police service’s manpower is unmistakable. This allows for the conclusion that, at the beginning of 2015, the means of the police were (and remain) insufficient.

Whether the circumstances since late 2014 have remained sufficiently extraordinary might be even more debatable, as how a person or group of persons, in casu the Belgian federal cabinet, perceives a threat is very subjective and might lead to either underestimation or overreaction. The cabinet's way of attempting to objectify this issue was by making military deployment dependent on an elevated terror threat level. According to the framework set out in the PAs, deploying the military is possible in case of general threat level 3 or, in case of a lower general threat level combined with exceptional circumstances, to specific sites determined to be at threat level 3. ¹³⁸ As this level is determined by experts and not politicians, it succeeds in somewhat objectifying the security situation of the nation, hence indicating whether it is proportional to deploy the armed forces. There is, however, no statutory obligation to make military deployment dependent on the terror threat level; it just appears to be the most convenient way of objectively demonstrating the proportionality of the deployment. Over the years, changes on the international stage (e.g. the “downfall” of IS) have had an impact on Belgium’s security. On 22 January 2018, the NSC decided to lower the general threat level to level 2 (i.e. improbable), which has been standard since 9/11. Several locations remain under level 3, to allow for military protection. However, as the threat analyses by CUTA are classified, it is impossible to prove that the threat to Belgian security has now sufficiently subsided to make military deployment disproportionate. The extremely complex and secretive nature of the threat and risk analyses makes decisions to maintain military presence in the streets practically unchallengeable. Reports from other authorities nevertheless indicate that the threat Europe faces remains substantial. ¹³⁹ This explains the duration ¹⁴⁰ of the operation. Notwithstanding that OVG was presented as a temporary measure, ¹⁴¹ it celebrated its fifth birthday in January 2020. There is no principal objection from the political parties

¹³⁷ Eurostat, Police officers, EU-28, 2009-2017, https://ec.europa.eu/eurostat/statistics-explained/index.php?title=File:Police_2009-2017.png. Back
¹³⁸ Art. 2, section 1 PA 13 March 2015. Back
¹³⁹ Europol, Terrorism Situation and Trend Report 2019, https://www.europol.europa.eu/activities-services/main-reports/terrorism-situation-and-trend-report-2019-te-sat, p. 4. Back
¹⁴⁰ J. Clarenne et al., supra note 14, p. 464. Back
¹⁴¹ Art. 2, section40 4 PA 13 March 2015. Back

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to withdrawing the military, ¹⁴² but the practical hurdle of insufficient police manpower remains a significant factor obstructing withdrawal. Moreover, as post-election negotiations drag on in true Belgian fashion, there currently does not yet appear to be an end in sight for OVG.

Based on all the limitations to an extensive interpretation of the military’s public order mission (see supra), one can only conclude that it is impossible for the armed forces to be assigned a “general mission to safeguard public space” ¹⁴³ without violating the subsidiary and proportionality principles. This nevertheless means that it is possible to assign a specific mission to safeguard public space to the armed forces. Does the way OVG is currently executed make it a general or a specific mission? According to Lagasse, cautiously followed by Clarenne, El Berhoumi and Moonen, ¹⁴⁴ OVG is a general security mission and the way it is executed manifestly violates the legal framework and more specifically articles 37 and 105 of the Constitution and articles 2 and 3 of the European Convention of Human Rights. ¹⁴⁵ Yet, the motivation proposed by this author of why the operation's scope is too general seems lacking. Current practice seems to conform to the prerequisite (“punctual and limited to a specific objective or a restricted perimeter”) set out by Lagasse. The soldiers, after all, can only protect a limited set of locations which, after analysis by CUTA, are determined to under increased threat of a terror attack (threat level 3 out of 4). The shift from stationary to dynamic security (i.e. patrols) after the attacks of 22 March 2016, can however be seen as an enlargement of the operation, as any area between at-risk locations, which in itself might not have been subject to a higher threat level, now also might be under the protection of the military. A statement from then Land Component Commander major-general Thys seems to confirm this practice. ¹⁴⁶ As the list of locations under threat level 3 and the patrol routes remain undisclosed, it nevertheless remains impossible to determine how widespread this violation of the PA is. In case of minimal and exceptional incursions into areas under threat level 2, because of security and logistical considerations, ¹⁴⁷ it would be harsh to label the operation as illegal. Additionally, this article has argued above that allowing the soldiers to perform visual checks might in fact constitute searches, despite the court ruling upon which the visual checks were based saying they are not. This practice was however halted several years ago and has not be re-established. In relation to other competences (or lack thereof), not much can be said. The competences of the soldiers have remained limited throughout the deployment, essentially making them but the eyes and ears of the police. ¹⁴⁸ Almost all interventions are based on the soldiers’ rights as citizens. At the time of writing, there have been several reports of military misconduct. ¹⁴⁹ However, extensive data on

¹⁴² During the 2019 election cycle, the Vrije Universiteit Brussel, the Institute for European Studies and the social media initiative Belgian Military Interests organized The Belgian Defence Debate. The author of this article submitted a question on OVG (59m08s). From the statements of the party representatives, one can conclude that no party is principally opposed to domestic military deployment, but that all considered it time to withdraw the military from the streets. For the full debate see: https://www.youtube.com/watch?v=0i35Wzeitkk. Back
¹⁴³ N. Lagasse, supra note 33, p. 83. Back
¹⁴⁴ J. Clarenne et al., supra note 14, p. 465. Back
¹⁴⁵ N. Lagasse, supra note 33, pp. 75-76 and 89. Back
¹⁴⁶ M. Thys, Rechtszekerheid is een recht, 19 April 2019, https://news.landforces.be/commander-blog/rechtszekerheid-is-een-recht/. Back
¹⁴⁷ France made a similar analysis concerning its Opération Sentinelle. See: Commission de la Défense supra note 99, p. 11. Back
¹⁴⁸ J. Clarenne et al., supra note 14, p. 465. Back
¹⁴⁹ Human Rights Watch, Reden tot bezorgdheid: de Belgische terrorismebestrijdingsmaatregelen na de aanslagen in Parijs en Brussel (s.l., Human Rights Watch, 2016), https://www.hrw.org/sites/default/files/report_pdf/belgium1116dutch_web.pdf, pp. 28-29; O. Leherte, Militaires en rue: des plaintes déposées pour abus d’autorité, 1 June 2016, RTBF, https://www.rtbf.be/info/societe/detail_militaires-en-rue-des-plaintes-deposees-%20pour-abus-d-autorite?id=9313421 and X, 19 klachten over militairen op straat, 2 September 2016, Bruzz, https://www.bruzz.be/samenleving/19-klachten-over-militairen-op-straat-2016-09-02. Back

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how the soldiers act on the streets is lacking, hence it remains difficult to deduce any clear pattern in military behaviour. As it is impossible to discern whether these incidents are mere outliers, or rather a structural problem, one cannot reasonably conclude that the way soldiers perform their tasks manifestly violates the legal framework. This begs for the general conclusion that any decision on the legality of the operation as a whole remains highly debatable because of the blurry legal framework.

IV. Conclusion: (legal) lessons learned

Since 17 January 2015 and for the first time in 30 years, the military is back as a significant actor in domestic public order. This raises a host of legal, political and sociological questions, of which this article has tried to answer some through historical and legal analysis. It has shown that, while domestic military deployment for public order purposes has become a rare occasion, OVG has not sparked overwhelming academic interest.

Historically, the Belgian military has had an important role in maintaining public order. The often brutal repression by their hand and the development of the gendarmerie and police services refocused the role of the military after the Great War. The exact role of the military in maintaining public order changed over time, from quashing riots and unrest of a socio-economic nature, to being banned from coming anywhere near these sorts of events. Their mission evolved from a role in maintaining/restoring public order sensu stricto to more generally preventing/mitigating dangerous situations for people or goods, which is the part of “public order” termed “public safety”.

While the role of the military in public order changed drastically over the decades, the legal methods allowing for a domestic deployment have not. There are two methods: a requisition, done by a lower government that normally does not have authority over the armed forces, and a deployment ordered by the King as the Commander-in-Chief of the armed forces. Unlike the requisition, the possibility of the King to order a deployment of the armed forces was contested for a long time. However, today it is accepted that the King can deploy the military. Mid-January 2015, the military was initially requisitioned by the Commissioner-General of the Federal Police, through a note with a rather indecisive choice of words. The federal cabinet did not want to seem weak on terrorism and decided to order the military to the streets, thereby supplanting the requisition and commencing OVG. The PA concluded between the Minister of Defence and the Minister of the Interior, laid down the ground rules of the deployment and made it very clear that the cabinet is in charge of the military deployment and its duration.

When we look at the legal framework of both methods of deployment, we see that they have their own peculiarities, ambiguities and issues. The law grants power to requisition the armed forces to only a few governments, most notably the mayor, the governor and the Commissioner-General of the Federal Police. All these governments can call upon the military for public order purposes, yet the provisions granting these powers are all worded differently for no apparent reason, thereby allowing for unnecessary discussion on the exact interpretation and modalities of the power of these governments. For what concerns the framework of the deployment by the King, the issues become more problematic. As the Constitution states that the King is at the head of the armed forces, and that powers are exercised in the manner laid down by the Constitution, acts and royal decrees should state that “the King” decides on a deployment. Nonetheless, the Royal Decree of 1994 expresses an unconstitutional tradition that developed after World War II, as it allows the cabinet (or the Council of Ministers) to deploy the armed forces without formal royal “approval”. In the case of OVG, the Council of Ministers decided to deploy the military, and continues to decide on the prolongation of the operation. According to some legal literature and jurisprudence, the sole, not formalized decision of the Council of Ministers is not an administrative act that can be brought before the Council of State,

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thereby making judicial review impossible. This outcome is however unacceptable in a democratic nation that respects the rule of law.

Whatever method of deployment is used, two mostly unwritten, essential, democratic principles have to be respected: proportionality and subsidiarity. Any analysis of the legality of the operation should focus on these principles, through an examination of the facts surrounding the operation and how it is executed. This is not always easy, as the unwritten character of these principles adds to their ambiguity. The decision to deploy the military, despite its unconstitutional form, was legal, in the sense that it respected both major principles. Confronted by a lack of police manpower, limited budgetary capacity and a surge of extra tasks due to a threat created by a heavily armed enemy, the cabinet reasonably concluded that police means were inadequate, and that a deployment of the military was necessary and commensurate with security needs. In this sense, it is logical that OVG should remain a temporary operation. While the threat remains tangible, it has somewhat diminished since peaking in early 2016. Conversely, the past five years have not seen a significant increase in the number of police officers, thereby perpetuating a military presence in the streets. In theory and practice, the military detachment remained subordinate to the police services for the execution of its mission. Given that there are several restrictions in place to limit the scope of the military’s public order mission, the conclusion that the military’s security mission has to be specific and not general in scope, is correct. When we look closer at how the military’s assignments in OVG we see that, despite two debatable changes to the modus operandi over the years, the military’s mission has remained specific. By limiting the military’s area of operations to specific areas and buildings that are more likely to be targeted by terrorists, OVG has also remained limited in a geographical sense. The confirmed incursions of military patrols into areas that are not designated as at risk could be problematic. Yet, as the exact perimeters remain undisclosed, it is difficult to determine whether the military has enlarged, in this way, its mission from a specific to a general one. Any intervention or use of force remains (mostly) ¹⁵⁰ based upon the rights every Belgian citizen has. In this sense, the visual checks of people’s bags that were performed by soldiers at one point, were highly problematic. While these were based upon a court precedent, it remains doubtful that citizens can freely give their consent to a heavily armed soldier. This dubious practice was however halted years ago. While there have been reports of military misconduct during the operation, comprehensive information on this misconduct has not been made publically available. This makes it difficult to confirm or deny a structural problem. This allows for the general conclusion that, due to the incomplete and ambiguous legal framework surrounding military public order deployment and the lack of certain information, any decision on the legality of the operation remains difficult.

Many government actors, from all branches of the trias politica, play a role in overseeing the current military public order deployment. First, it is obvious that the focal point lies with the executive, and more specifically the Council of Ministers, who took the decision to deploy and filled in the vague provisions of the legal framework through a PA. In this agreement, military deployment was coupled with the elevation of terror threat level, thereby granting a vital role to CUTA, the group of experts that determines this threat level. An attempt to mitigate this restriction of the Council of Ministers’ discretionary power, by allowing the more political NSC to increase the threat level, failed. On the practical side of things, it is the Crisis Centre that determines the locations where soldiers will be deployed and the number of soldiers that will be deployed at that location. Secondly, the legislature is responsible for the creation of the legal framework and holding the executive to account. The

¹⁵⁰ Art. 7/5, 37 and 38 of the Act of 5 August 1992 “op het politieambt”. Back

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framework, however, is characterized by unconstitutionalities, caveats and ambiguities. By allowing the King to determine the forms of operational deployment of the military, parliament reinforced the executive’s control over the armed forces and allowed it to confirm an unconstitutional practice, thereby disregarding the Council of State’s repeated critique. Finally, the judiciary also has a role to play in domestic military deployment, most notably the administrative litigation section of the Council of State. While some argue that the sole, informal decision of the Council of Ministers cannot be brought before this administrative court, this would be contrary to the essence of the rule of law. It is possible by being recorded in the minutes of the Council of Ministers the decision has legal existence. This would allow judicial review and a possible review of the unconstitutional deployment practice. However, since the beginning of the operation, no attempt has been made to bring this decision to deploy the military before the court. Additionally, the civilian courts and prosecutor have jurisdiction over crimes committed by the soldiers participating in OVG. However, no soldiers appear to have been prosecuted so far for incidents in the context of OVG.