Legal Rules For Armaments Quality And Alternative Procurement Ways For EU And NATO States

Legal Rules For Armaments Quality And Alternative Procurement Ways For EU And NATO States Presented by: Dr. Gimmler Date: 7 March 2024 Content - 1. Setting the Scene - 2. Armament quality and constitutional law - 3. Conventional and alternative procurement channels- new ways to glory Setting the Scene - Tour d' horizon to war – history and contemporary history • - Or: how to win a war and survive Vulnerability comparison in AFG: • Leo 2 A 6 versus US Stryker - assault gun Causes for exchange decision of the Canadian Army - Assault gun Stryker before… • … and after RPG-7-hit Quote from German Lt. Gen (ret.) • Willmann:  "Lightly in, dead out." - - - Superiority leads to success in war and to survival of the fighters: • Gulf War (different figures): • Ratio of losses of battle tanks: • 1:500 to 1:1,000 = Casualty ratio: 1 - 4 dead to 2,000 - 4,000 killed World War 2 (Sherman versus Tiger and Panther): • Shooting ratio 1:5 to 10 = • Kill ratio: 4 to 20 – 40 Leo instead of Stryker in AFG (Canada): • - No injuries against numerous dead and wounded. Superiority means survival! - - "Eternal" military experience facts: • Tactical and strategic surprise lead to victory • Superiority in key dimensions, especially better armaments leads to victory • Inferiority in key dimensions leads to defeat and death • Optimized active and protective armor is dynamic in time - it becomes obsolete. Disrespecting these facts is wrong, not justifiable and not in discretion of the politicians (see critical rationalism as philosophy of science) - - Exponential, non-linear effect of so-called disruptive developments, e.g.: • Blitzkrieg warfare, • Military drones, • GPS, • Dreadnought battleships 1904/1905 • Shaped charge bazooka against steel armor. Specific consequences for armament and equipment decisions for troops in the field: • Modern equipment, in particular the "best" protection and effective technology based on the state of the art in science and technology, is clearly the measure that minimizes risk on the basis of scientific findings and concrete operational experience. Armament Quality And Constitutional Law Taking Germany as an example - an overview: - Article 87 a GG: • - Article 26 GG: • - Prohibition of aggressive war Article 12a GG: • - "The federal government deploys armed forces for defense." Compulsory military service as a basic duty of male citizens Articles 35, 91 GG, • Deployment of the Bundeswehr within the country, especially in the event of an internal emergency - Article 115 a ff., 80 a GG • Regulations for cases of defense and tension with emergency legislation - Indirect reference: • - Budgetary regulations: Articles 109, 114 GG: • Economic efficiency - No special constitutional regulations on armament quality and Protection: - Jurisdiction: • No direct jurisdiction of the ECJ or Constitutional Courts on armaments and deployment issues • However, UK Supreme Court decision of 19.06.2013: State liability for death of soldiers due to poor equipment (lack of IFF-system) - Fundamental right under Article 2 para. 2 sentence 1 GG (basic law) as a historically evolved catch-all provision: • Article 2 para. 2 GG:  “(2) Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable..."  (Similar regulation in Art. 2 ECHR and Art. 2 and 3 EU fundamental rights charter) • Applicability to soldiers undisputed  Article 2 para. 2 sentence 1 of the Basic Law applies to soldiers despite the special duties under Section 7 of the Soldiers Act (SG; duty of bravery). - Summary of the legal situation: • Article 2 para. 2 sentence 1 GG / ECHR Article 2 para. 1  Subjective right of the soldier for protection and corresponding duty of the state to protect, also against unlawful attacks by third parties. • Whereas military missions of NATO and EU are legal, especially regarding the typical mission of “defense against an aggressor", Article 51 UNO- Charter, the actions of the aggressor are ex definition illegal. • The more intensive the possible encroachment on fundamental rights, especially in the case of the risk of death, the greater the duty to protect. • - War as a huge risk situation. Conclusion: • The state has to protect his soldiers from dangers, especially because he requires to bear the risks Conventional And Alternative Procurement Channels - New Ways To Glory - Purchasing the armament - The conventional solution: • Property-oriented conventional view (= the army buys an armament item or produces a logistical service itself)  The usually extremely durable large-scale combat equipment (Leopard, Eurofighter, etc.) is purchased and is subject to the „law of obsolescence" from the very first moment.  The purchase method is de facto an obstacle to modern armor or equipment, since the necessary high amounts are often not available, example: German BW white fleet. - Paradigm shift: Use-oriented consideration • Example: The military equipment is rented for e.g. 20 years (= "life-cycle contract" as Best Practice long- duration contract) - The rent is determined according to the formula - Depreciation + financing + profit - Rent/Leasing - State leasing/state rent: • One state provides armaments to another for a specific time and purpose  Example: Canada leased 20 Leo2A6 for AFG • Rental/leasing from defense contractors:  Rental of the Heron drone by the Bundeswehr  Hungary leases Saab Gripen from Sweden  UK procures in-flight refueling aircraft on a leasing basis  Norway procures submarines on a leasing basis - Especially Privatization models/PPP • Privatization through state-owned companies (e.g. German BW white fleet) - Genuine privatization through private contracting companies for certain services - And suddenly VAT is relevant for European defense: - Some calculations: - Roughly simplified alternative calculation: • Purchase consideration: € 10 million purchase price for an armament item + 20% = € 12 million, as a burden on the MOD budget • Consideration of rental procurement: Assumed annual rental amount of € 550,000 + VAT (calculation assumptions: € 500,000 depreciation with a normal useful life of 20 years, 5% interest, 5% profit) + 20% VAT = € 660,000 as a burden on the budget. Regarding the first year: Instead of 12 Mio. € for one tank we can get for the same amount more than 18 tanks (12 Mio. €: 660.000 = ca. 18) - Advantages of renting/leasing: • Multiplier effect, the leverage effect: a high utility value is achieved with a small annual sum, and high armament quality is achieved through rapid availability. - Apparent disadvantage: • "We are bound for a long time". • The same situation in a purchase solution.