Tribune. Recently, on two occasions, the President of the Republic reacted spontaneously to security threats through armed force: by sending two Rafale fighters and two vessels of the national navy in the eastern Mediterranean in August 2020 following of the unexpected exploration of a Turkish ship, and by deploying 4,000 additional soldiers on the national territory after the Nice attack, so that it seems natural that the Head of State has the military tool at his disposal. depending on the circumstances. If the imperative of national defense requires it, constitutional experts should not, however, remain apathetic in the face of this prerogative.
Since the end of the Second World War, all French military operations, whether external or internal, have been conducted without a declaration of war. Scabrous, politically harmful and carrying heavy legal consequences, the notion of war has been unanimously banned from the lexical field of armed interventions. Contrary to the loyal frontier between war and peace, our century is experiencing an ambiguous state of successive crises and permanent military protection, which singularly confers on the French army chief an unparalleled flexibility of use of the army.
Authorization “ad vitam aeternam”
Without a declared war, and without a decreed state of siege, the army can be freely mobilized inside the territory by the simple means of a legal requisition, which moreover constitutes the legal basis of the “Sentinel” operation. whole since 2015. Nevertheless, although this operation passes for a banal public service mission, the soldiers, durably requisitioned, can quite be called upon to develop seriously a war operation on the territory without state of siege – which envisages Article L. 1321-2 of the defense code. In this case, it is highly probable that the political decision to deploy the troops will not become subject to appeal under the administrative jurisprudence of acts of war.
Outside the country, too, the army chief has hardly any hands tied. Admittedly, the constitutional law of January 23, 2008 generously granted Parliament the right to discuss the advisability of the operation, but, specifies the new article 35 of the Constitution, this debate “Is not followed by any vote”. Moreover, Parliament’s authorization to continue operations after four months is not a seriously restrictive condition: not only is it valid ad vitam aeternam, but article 35 also adds that in the event of disagreement between the two Chambers, the Senate may be refused the last word in favor of the National Assembly, held a priori by the majority. As for the judge, he remains faithful to the principle according to which sending troops abroad is by nature not subject to appeal.
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