Maksymilian Dura: Is the intention to appoint in time of peace one candidate for the Commander-in-Chief of the Armed Forces and later preparing such person for the role of CCAF with transferring powers to affect the documents related to the defence not a clear indication who should be chosen by the President after time of war is declared?
Stanisław Koziej, head of the NSB: To begin with, let me point to the erroneous thesis included in the question. The so-called candidate for the Commander-in-Chief of the Armed Forces (CCAF), in the framework of the proposed law, does not have any sovereign powers. Including the opportunity to affect directly the documents related to the defence. However, such person is under the obligation to participate in the main preparatory measures for the national defence, i.e. strategic games and exercises, planning the use of Armed Forces and preparing the wartime command system. Law does not regulate the way of participation in such preparatory actions. This will be determined by the Council of Ministers, but – obviously – in its ordinance the Council may not assign any powers to the candidate that go beyond the level imposed by the Act.
However, the essence of indicating the so-called candidate for the CCAF and providing such person with the opportunity to prepare for that future role, is to provide the political decision makers (Prime Minister and President) with criteria for taking the final decision regarding the appointment of CCAF in time of war. But this law cannot go beyond the constitutional regulations and cannot, in advance, determine who is going to be appointed by the Prime Minister and President when a war breaks out. It may only be assumed that there is a good chance (close to certainty) that as a result of rational decision-making process and with the proposed provisions, the indicated person will be the one that has been intentionally prepared in advance for the role of the Commander-in-Chief.
However, it should be emphasized that as long as the current constitutional provision is applicable, it will not be legally possible, before time of war is declared, to appoint the CCAF or to decide definitively who is going to be appointed. Such law only increases the probability of substantively appropriate choice, optimises this process under the applicable regulation of the Constitution, but it does not impose any decision in advance.
Formerly, in the framework of the constitutional provisions, the President commanded the national defence in the scope of using the Armed Forces with the help of the Commander-in-Chief of the Armed Forces. At present, accordingly to the NSB’s proposal: “The President of the Republic of Poland commands the national defence in the scope of using the Armed Forces with the help of the Chief of the General Staff of the Polish Army”. Following this logic – in the President’s entourage it is precisely the Chief of the General Staff of the Polish Armed Force who will be the most competent person for commanding the defence of the State. What is the scope, according to the NSB, of influence of the President of the Republic of Poland (and thus the Chief of the General Staff of the Polish Army) on the CCAF’s activity (e.g. by accepting the action plans, approving the orders, determining the forces, etc.)? How is it to be conducted technically: through technical means of communication (e.g. channel: President of the Republic of Poland – Council of Ministers - CCAF), through joint command centre, through briefings, etc.?
Unfortunately, once again I need to begin with the correction of erroneous thesis included in the question that affects its further content. Well, the Constitution does not mention anything about the process of commanding the national defence by the President. Thereby it also does not say that the President conducts such process with the help of the CCAF. What is more, the Constitution explicitly states that the CCAF’s powers and rules of his subordination to the constitutional bodies of the Republic of Poland are to be determined by an Act of Law.
Proposed regulations do not change the existing rule of commanding the national defence. The President still commands the defence in cooperation with the Council of Ministers. The only clarification is that the President begins his commanding upon the appointment of the CCAF, who reports directly to him and who implements his decisions regarding the operational use of the Armed Forces within the framework of national defence.
Like every decision maker, the President must also have the assisting authority. Such military authority from the division, through all levels of command, to the highest national level, was, is and perhaps will be the General Staff. So far, for the needs of the President, on his command post, the additional command structure character has been planned to be established in time of war. At present – after the implementation of command system reform – this is no longer necessary. The General Staff may perform such role. Like no other Chief of Staff in the history of military (besides the Prussian episode of Moltke’s term), so as our Chief of the General Staff will not be in command, but he will act as the right-hand of a political decision maker, that is the President regarding the national defence in the matters of operational use of the Armed Forces. He will, e.g. provide opinions and recommendations concerning the President’s decisions in relation to proposals and requests submitted to him by the CCAF for the approval. In this sense, the Chief of the General Staff, in time of peace as in time of war, will be – by advising and assisting strategically the highest authorities - substantively and procedurally the most significant military authority that will be expected to have the highest strategic competences.
As far as the technical, procedural sides, Staff work organisation on the command posts are concerned – this Act does not deal with regulation of these issues. It is determined in other documents.
How to reconcile the situation in which the President commands the national defence and the decision of Minister of National Defence determines the forces that may be used by the Commander-in-Chief?
The Constitution that establishes two executive authorities – the Council of Ministers and President – presupposes the necessity of cooperation between them in all matters, also regarding the defensive ones. The Council of Ministers, and Ministry of National Defence on behalf of the Council, in time of peace implement the process of preparing the country and its Armed Forces for functioning during the increased defence readiness and during war. The preparation of the Armed Forces (mobilisation, training, reproducing the abilities to perform combat actions) constitutes one part of such preparatory measures. Therefore, the Ministry of National Defence has full knowledge, which divisions, troops or other organisational units may be, at a given time, subordinated to the CCAF with intention to use them to implement the particular operational tasks within the framework of national defence. It should be emphasised at that point that following the entry into force of the proposed Act, the President will also have impact on that matter by formerly approving the national plans of using the Armed Forces for the purpose of national defence.
The axiom is that the Commander-in-Chief of the Armed Forces commands the Armed Forces. Isn’t it logical that the President who leads (with the help of the Chief of the General Staff of the Polish Army) the activity of the Commander-in-Chief of the Armed Forces commands the Armed Forces as well?
This issue is rather of terminological nature: difference between the terms “leading” and “commanding”. Leading, as I understand it, is a broader concept and commanding refers to the processes of ruling nature within the Armed Forces: the soldiers (of appropriate rank and function) are in command, not the civilians. In other words: commanding is a specific case of leading; some (ruling in nature) processes of leading in the military environment (within the army, implemented by the soldiers-commanders) constitute the commanding.
But obviously there may be other interpretations of these terms. It is a matter of consent, as everything in terminology.
With regard to the proposed earlier preparation of candidate for the Commander-in-Chief of the Armed Forces, will such candidate have a full-time position? How many persons will be cooperating with him (secretary’s office, adjutancy, rooms, company vehicles, budget – e.g. for travel and subsistence expenses) during the period of preparation for the role of the CCAF in time of peace? Will the candidate for the CCAF have influence on the staffing, which will be possibly later on used when establishing his own command post?
The Act does not require establishing a special position and even more to establish any service structure for the person projected to be appointed the CCAF, the so-called candidate for the CCAF. There is no such need. It will be one of the post holders in the Armed Forces and such person does not need to hold any separate position, which additionally could duplicate in any way the existing structures of command in time of peace. The preparatory procedure will be conducted by various entities determined by the Council of Ministers, which are included in the system of leading the defence and commanding the Armed Forces, according to their characteristics.
The candidate for the CCAF does not have any ruling powers, so his influence on any decisions (HR, organisational, planning, etc.) may only be indirect. That is why it is so important that the candidate is a person that has already in time of peace competences in matters of war. At present, it is the Operational Commander, who is responsible for the preparation in time of peace the command post for the CCAF in time of war. He is the most natural candidate for the CCAF. However, if the decision of the Prime Minister and President would be different, which is obviously legally (constitutionally) possible, then the Operational Commander would be naturally the Chief of Staff of the selected Commander. In other words he will be the right hand of the CCAF. This way, the new command system guarantees, regardless of the political decisions, the continuity of the operational commanding in time of peace, crisis and war.
What are the requirements for the candidate for the CCAF (knowledge of languages, experience in commanding, level of education, etc.)?
The legal regulations regarding the candidate must be equivalent to the requirements for the appointment of the Commander-in-Chief of the Armed Forces. The Constitution does not determine any formal requirements for the CCAF, thus the ordinary Act of Law cannot determine them in relations to the candidate.
How to reconcile the “double” duties of the Chief of the General Staff of Polish Armed Forces, who in time of peace has to assist the Minister of National Defence in leading the activity of the Ministry of National Defence and the Armed Forces, and in time of war, as envisaged in the Act, has to assist the President of Poland in leading the national defence? What will happen during this time to the Ministry of National Defence (who will assist there?), which – within the framework of the Council of Ministers – is to cooperate with the President in leading the national defence?
The Chief of the General Staff of the Polish Army in time of peace advises the Minister of National Defence (assists him) in the scope of overall activity of the Armed Forces (scope of the responsibility of the General Commander) and also their operational use (responsibility of the Operational Commander). Leading of the national defence with the use of the Commander-in-Chief of the Armed Forces and the Armed Forces subordinated to him is nothing more than operational use of these forces, in that case for the purpose of national defence. Therefore, there is no need to reconcile the “double” duties of the Chief of the General Staff. He still deals with the same matters, and only that part of tasks that concerns the strategic matters of using the armed forces for the purpose national defence he should realise not on behalf of the Ministry of National Defence (as he does it in time of peace), but directly on behalf of the President. This is due to the fact that the President, together with the appointed CCAF, part of his authority over the Armed Forces (precisely their operational use) exercises directly, without any intervention of the Minister of National Defence. All other, besides the matters of operational use of the armed forces, powers and duties of the chief of the General Staff are still implemented on behalf of the Minister of National Defence, remaining in any case within the structure of the MoD.
In that way, the law guarantees the institutional as well as process continuity of supreme authorities support regarding defence matters in time of peace, crisis and war.
Isn’t the NSB’s assumption that national defence is led by the President, cooperating with the Council of Ministers, as the Constitution does not allow the rule of one authority (even in time of war) unequivocal with the fact that there will be no one-person commanding of the national defence? If so, who will make decisions and using what procedures? What will be the subject of commands and the shape of decision-making processes? Who will make the final decision in any matters of dispute? What will happen, if the President’s decision is not approved by the Council of Ministers?
Another correction of thesis included in the question: the fact that the President leads the national defence in cooperation with the Council of Ministers is not the assumption of the NSB. The need for cooperation arises from the Constitution and the President’s power to lead is legally included in already existing legal regulations. Other incomprehensible formulations can be encountered here. The Council of Ministers does not have any power to approve or disapprove the President’s decision. Simply – until the agreement is reached, such decision is not formal. Another issue: What does it mean to command the defence? Commanding refers to the army, not the process. Is it about the commanding in the military sense? If yes, it is provided, because the commanding of army for the national defence is performed single-handedly by the CCAF. However, if the ambiguous term “command of national defence” refers to the leading by the political authorities, there is, indeed, no one-person leading, as it is not allowed by the law (the President and the Council of Ministers, and in specific cases – the Prime Minister, must cooperate).
At present, there are many various statutory regulations determining the competence dependencies and rules and procedures of cooperation of the President, Council of Ministers, Prime Minister, Minister of National Defence in the scope of national preparation for defence and leading such defence. However it should be agreed that for the specific conditions of wartime, more unambiguous and homogeneous leading system would be more appropriate. It is, among others, one of the issues to be probably considered in the event of making the political decision to amend the Constitution.
Wouldn’t there be problems that may arise in the situation, in which the control over the person that is the best prepared for commanding (CCAF) will be exercised by the Chief of the General Staff of the Polish Army (and precisely the President with his intervention) that in fact will not be as prepared for that role as the Commander-in-Chief of the Armed Forces?
Again, there is an erroneous assumption in the question that equates the staff function with the command function. After all, those are two totally different roles. On every level of command it is clearly visible: the role of chief of staff is one thing and the role of commander is another. They cannot be considered as identical. The Chief of Staff is not in command. The Chief of Staff assists the Commander at his level in commanding the subordinate officers.
At the national level (in the political leading) the chief of the General Staff assists the political decision maker (the Minister of National Defence, government, President)
in leading the subordinate commanders: the General Commander, Operational Commander and in time of war – The Commander-in-Chief. If such basic difference is understood, the question will become pointless. I know that problems with this understanding arise from our specific and unique in history practice of the last two decades. It needs to be emphasised – practices of the temporary, transitional solution – related to the need for mild, evolutionary transition to the system of the so-called civil control over the Armed Forces.
Which organisational units, besides the Armed Forces, are to be subordinated by the Minister of National Defence to the Commander-in-Chief of the Armed Forces? What will happen to those organisational units that are not subordinate to the Ministry of National Defence, but which will be necessary for the implementation of tasks given by the CCAF? (From the „non-military part of the national defence system”)?
Among organisational units possible to be subordinated to the Commander-in-Chief of the Armed Forces may include entities that will be included in time of war to the Ministry of National Defence by provision of an Act of Law or the decision of Council of Ministers. This case may touch militarised units, such as the Polish Air Navigation Services Agency or elements of the military intelligence services. Richer and more complete answer to this question would require information regarding which specific organisational units the author of the question has in mind.
According to the Constitution of the Republic of Poland “For the time of war, the President of the Republic of Poland, at the request of the President of the Council of Ministers, appoints the Commander-in-Chief of the Armed Forces”. For most observers such provision indicates that the Commander-in-Chief is designated – thus the person commanding all the personnel in the Armed Forces (there is no equal commander, as it is reflected by the adjective “in-Chief” and it also indicates the fact that he commands all Armed Forces, and not just a part of it. How is the above-mentioned constitutional provision interpreted by the NSB?
For reasons of clarity regarding this question it should be added that the Constitution explicitly states that an Act of Law determines the CCAF’s competences and rules of his subordination to the constitutional bodies of the Republic of Poland. Thus, there is no need for the intuitive, colloquial or grammatical understanding of the CCAF’s powers. They simply have to be defined in an Act of Law, as it is required by the Constitution. Nothing more. It is also understandable that they should be determined logically and according to the needs of optimal leading and commanding of the Armed Forces, with providing, in particular, the best conditions for continuity of this command in time of peace, crisis and war.
The logic and practical conditions indicate that if the President has powers to lead the national defence in time of war, then the powers of authority subordinated to him, in this case the CCAF, must be within the President’s powers. They cannot be broader in its substantive scope. Therefore, the CCAF may command those forces that are allocated to conduct the operations within the framework of national defence. He cannot have competences that go beyond these tasks. He cannot, in particular, take from the Ministry of National Defence power over all Armed Forces, that is become kind of Minister of National Defence of „W-time”. With such competencies the CCAF could not be subordinate to the President, as it would have to mean taking by the President from the Ministry of National Defence full power over the armed forces. The current Constitution makes no provision for such solution (“presidential ministry”).
Is the provision of the new Act that states „the Commander-in-Chief of the Armed Forces commands the Armed Forces” correct, if the premise is that the CCAF commands only those military units that were allocated to him by the Minister of National Defence?
Again, let’s clarify the initial thesis: the Act proposes the inclusion of provision stating that the CCAF commands the Armed Forces subordinated to him pursuant to the decision of Minister of National Defence in accordance with the needs of national defence. Depending on the needs, determined by the scale of war, different size of the Armed Forces may be involved in the defence effort, theoretically even the entire force. Therefore, the legislative solution must be valid for every possibility. Contrary to some opinions, the Constitution does not suggest at all that the CCAF must command the whole of Armed Forces. If that intention would be so plain, we would use the term “Commander-in-Chief of the Armed Forces of the Republic of Poland”. In this case the Constitution does not mention the whole Armed Forces of the Republic of Poland, which is by all means rational, as it gives the possibility to clarify these issues in the Acts of Law, to which the reference should be made as reasonably suggested in the Constitution.
According to the explanatory memorandum accompanying the new law: “The task of the Commander-in-Chief of the Armed Forces subordinate directly to the President of the Republic of Poland is to conduct the defence operation in order to counter the military aggression exclusively in the territory of the Republic of Poland. Therefore, only those Armed Forces and organisational units that are required for the conduct of activities of such character should remain subordinate to the Commander”. Who will then supervise the forces that will be used for the defence of territories of other invaded NATO countries (e.g. Baltic states), in a situation when later on in Poland the state of war is announced? Will the appointed CCAF also have in his custody the forces sent there or will he delegate the control over them to NATO (problem of replenishment of forces, sending, reinforcement, ammunition – not everything can be replaced by the NATO, evacuation of the casualties, etc.)?
Obviously many such specific situations may be generated and various questions may be formulated, but they will not be answered or settled at the level of an Act of Law. This is the matter of practice, doctrine, political and organisational decisions, agreed rules of cooperation, standards in NATO, etc. As far as the use of our Armed Forces within the framework of NATO operations is concerned, the situation is clear from the beginning and the Act in question does not change anything. Such forces are allocated to be operationally subordinate to the relevant allied commands and they implement their operational decisions, just as (in other situations) they are allocated to be subordinate to our Operational Commander or (in time of war) to the Commander-in-Chief. The pattern of procedure is the same, which by the way guarantees homogeneity of activities in various conditions and situations. The determination of relationship between the CCAF and NATO commands falls within the competence of the Polish authorities and may be decided upon in the process of consultation, arrangement and finally joint decisions depending on the needs.