2.1. The text of the Basic Law, notably Article 24(2) and 87a(2) GG

The most immediately relevant provisions for military operations are Article 24(2), dating from 1949, and Article 87a GG on armed forces, which in its current form dates from 1968.²⁴ Further relevant constitutional provisions are Article 26 (the ban on a war of aggression)²⁵ and Article 115a (declaration of state of defence).²⁶ Article 24(2) GG runs:

Article 87a(2) GG has so far always been considered as the second-best legal ground, as a residual constitutional basis for military operations abroad that cannot be called ‘collective’ in the sense of Article 24(2) GG. In fact, except for two evacuation operations (in Albania in 1997 and in Libya in 2011), Germany has, as yet, never acted outside a multilateral scheme – very broadly conceived as acting alongside the UN and/or NATO, or as a minimum in a coalition of the willing. The government regularly cites Article 24(2) GG as the constitutional basis for German participation in these operations.

In the lead judgment of 1994 (which will be discussed in section 2.2), the Court defined a system of ‘mutual collective security’²⁹ as one

The Court settled that the constitutional concept covers not only the UN but NATO also.³¹ It is notably irrelevant whether the intention of the treaty scheme is to guarantee peace among members (as with the UN) or whether it obliges members to furnish support in case of attack from the outside (as with NATO).³²

The Court also found that the WEU qualifies,³³ whereas the post-Lisbon EU ‘does not yet take the step towards a system of mutual collective security’, despite the TEU’s collective defence obligation exactly mirroring NATO’s.³⁴ A mere coalition of the willing without any link to the UN or NATO would not qualify as a system in terms of Article 24(2) GG.³⁵ Lacking a treaty basis and possessing no institutions, it could not be called a ‘system’. A bilateral treaty, for example between Germany and Iraq, would not qualify either.

Next, Article 24(2) GG forms not only the basis of German membership to the system but also constitutionally covers the individual deployments ‘insofar as these occur within and pursuant to the rules of such a system’.³⁶ This condition is easily satisfied by UN peacekeeping operations.³⁷ Article 24(2) GG also covers peace-enforcement actions, namely military operations authorised by the Security Council under Chapter VII of the UN Charter.³⁸ The constitutional clause further covers operations conducted within NATO (Article 5 and non-Article 5 operations³⁹) and finally NATO actions implementing UN enforcement decisions.⁴⁰

Before the 1994 Constitutional Court’s seminal judgment, scholarship struggled to bring into line the facially restrictive constitution – notably the seemingly clear wording of Article 87a GG – with the emerging practice of military activity abroad (such as airspace monitoring and humanitarian aid), and attempted to declare constitutionally admissible German participation in peace and collective defence missions.

Interpretative strategies ranged from either construing the notion of ‘defence’ in Article 87a GG very broadly so as to include, for example, rescue operations for German nationals abroad; reading the notion of employment very narrowly,⁴¹ for example by distinguishing military from police operations; or by qualifying small-scale activities as a mere ‘usage’ (Verwendung) of the army as opposed to employment (Einsatz).

It was also pointed out that the original intent of Article 87a GG⁴² was chiefly or even exclusively concerned with the deployment of the Bundeswehr domestically, and therefore no obstacle to military non-defensive engagement abroad. However, the plain wording of Article 87a(2) GG does not distinguish between domestic and foreign deployments and thus stands against limiting the applicability of the constitutional rule to purely internal deployments.⁴³ To conclude, the facial constitutional prohibition of any non-defensive military action until the early 1990s furnished a convenient explanation for not participating in UN peace missions, as these were not expressly permitted by the Basic Law.

2.2. The lead judgment of 1994: the invention of the parliamentary prerogative

In the eminently important judgment of 1994,⁴⁴ the Constitutional Court found a way out of the impasse. It clarified the key parameters both for the admissibility of military deployment (and the substantive requirements flowing from the choice of the legal basis) and the respective powers of government and Parliament when deciding on deployments.

This judgment was rendered in a dispute between constitutional organs,⁴⁵ upon requests by two parliamentary factions and their members, and joined together four proceedings concerning the German government’s decisions to contribute to various military operations.⁴⁶ All operations were authorised by the UN Security Council (partly mediated by implementation decisions of NATO and WEU) and were located in two different settings: Yugoslavia and Somalia. Germany contributed planes, ships, and troops. For example, German soldiers participated in an integrated NATO unit in AWACS planes (Airborne Early Warning and Control System) to monitor the no-fly zone over Bosnia and Hercegovina, German ships patrolled the Mediterranean Sea to enforce an embargo against the then Federation of Serbia and Montenegro, and German supply and transport battalions distributed humanitarian aid under UNOSOM II. Hence, the judgment dealt exclusively with military operations in the framework of international organisations proper, as opposed to unilateral action or coalitions of the willing.

As regards the constitutional admissibility of extraterritorial military activity and their legal basis, the Court made four points: first, that NATO is a ‘system of mutual collective security’ in the sense of Article 24(2) GG, although the drafters had the UN in mind; second, the parliamentary statute under Article 59(2) GG, which approved of German accession to NATO in 1955,⁴⁷ also covers the incorporation of military staff into integrated units and their participation in military action conducted by NATO and under NATO command to the extent that such integration or participation has already been pitched in the founding treaty;⁴⁸ third, in a kind of implied powers argumentation, the Court held that Article 24(2) GG, which expressly allows the German Federation to ‘enter’ (einordnen) into such a system of mutual collective security, must likewise implicitly allow the country to assume those tasks that are typically connected to membership – importantly, this means that Article 24(2) GG is also the constitutional basis for the use of German armed forces in operations ‘insofar as these occur within and pursuant to the rules of such a system’;⁴⁹ and fourth, Article 87a GG does not bar such operations.⁵⁰

Having clarified that the German constitution allows extraterritorial operations, the next set of findings concerns the constitutional powers of the executive and legislative branch in this matter: first, the out-of-area action under NATO’s new strategy of 1991 did not require a parliamentary statute under Article 59(2) GG because this new strategy did not constitute a treaty amendment.⁵¹ However, the bench (Senat) was split on this point. It has already been the case that in the 1994 judgment, four of the eight judges opined that the powers of Parliament were undermined by the purely executivist development of NATO.⁵² In order to accommodate this concern, and to avoid that the executive branch could have decided alone on military deployment, the Court ruled that ‘The Basic Law requires a constitutive parliamentary approval for any military deployment of armed forces.’⁵³ This requirement corresponded to constitutional tradition since 1918, the Court said.⁵⁴ Secondly, the Court described in detail which types of military action demanded parliamentary assent in each concrete case. Thirdly, it asked the legislature to draw up a statute, which was finally adopted a decade later in 2005.⁵⁵

Any assessment of the judgment must note that the parliamentary prerogative⁵⁶ was unknown in the constitutional landscape until its invention by the Constitutional Court.⁵⁷ It was a stretch to extrapolate from Parliament’s ‘classic’ right to declare (defensive) war⁵⁸ the requirement of parliamentary approval for every single military action. But this extrapolation facilitates military engagement to protect peace and security, which was in principle favoured already by the original constitution even though the founders did not anticipate when and how Germany would become part of this collective endeavour. Hence, the creative reading adapted the constitution to totally new circumstances after 1990, something that had not been foreseen in 1949. The requirement of parliamentary approval was not the only possible answer to the global change, but it was an admissible progressive interpretation of the Basic Law (probably transgressing the blurry boundary with judicial law-making) in line with the constitutional spirit.

2.3. The AWACS II judgment of 2008: when is parliamentary approval required?

The second key judgment was rendered in 2008,⁵⁹ four years after the adoption of the Statute on Participation.⁶⁰ It was, again, issued in a proceeding of a dispute between constitutional organs. It related, again, to a German contribution to airspace monitoring by AWACS, this time over Turkey in the spring of 2003. The context was the Iraq war waged by the US and its allies. Turkey feared that Iraq might target its territory and had requested consultations under Article 4 of NATO. Airspace surveillance with German planes was thus seen (including by the Court) as preparing for possibly needed collective self-defence under Article 5 of NATO.⁶¹ In March 2003 the German Chancellor, Gerhard Schröder, explained to Parliament that the German military’s exclusive duty was strictly defensive aerial surveillance of Turkish airspace and did not extend to providing any support for deployment in or against Iraq. There was ‘a strict dividing line’ between the NATO-led AWACS aircraft, under the command of NATO’s Supreme Allied Commander Europe (SACEUR), and the US command. The geographical separation and the difference in mandates was, the Chancellor said, the reason why there was no need for an approval by the Bundestag.⁶²

The applicant, a faction of the liberal Opposition party Freie Demokratische Partei, (FDP), successfully complained against the government for bypassing Parliament.⁶³ The Court found that German involvement in the aerial surveillance of Turkish airspace was a deployment of armed forces. Even if no actual combat took place, German forces were involved in armed operations and this would have required parliamentary approval.⁶⁴

The first and major contribution of this judgment was to flesh out in more detail when exactly a parliamentary approval was needed. Doctrinally, this hinges on the question of when a ‘deployment’ is present. ‘Deployment’ is the key term of the 2005 statute, but it is a constitutional (and not merely a statutory) concept which goes back to the 1994 judgment.⁶⁵

Second, the judgment offered a new rationale for the involvement of Parliament. It moved away from the bookish constitutional tradition on armed forces and placed the approval squarely into the context of democracy and the separation of powers.⁶⁶ This judgment had the consequence of further strengthening the Bundestag.

2.4. The Lisbon treaty judgment of 2009: red line for EU operations?

The judgment on the Treaty of Lisbon examined the newly designed European scheme for a Common Security and Defence Policy (Article 42–46 TEU) and whether a German ratification of the EU reform treaties of 2007 would be compatible with the Basic Law.⁶⁷ Article 42(1) TEU allows for ‘missions outside the Union for peacekeeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter’. The undertakings are further detailed in Article 43(1) TEU which, inter alia, mentions the ‘tasks of combat forces’. The concrete missions and measures must be decided by the Council (Article 43(2) in conjunction with Article 42(2) sentence 1 TEU). The actual performance then falls on the member states.⁶⁸ Article 42(7) TEU contains an ‘obligation of aid and assistance’, which explicitly refers both to Article 51 of the UN Charter and to ‘commitments under NATO’. The principle of voluntariness governs: only willing and able member states will be entrusted and must agree among themselves and in association with the High Representative of the Union for Foreign Affairs and Security Policy on the management of the tasks.⁶⁹

The Court examined – detached from any concrete case – the treaty’s compatibility with the Basic Law’s provision⁷⁰ on collective security.⁷¹ The scheme manifests, according to the Court, the EU member states’ ‘intention to retain the sovereign decision on the deployment of their armed forces which is rooted in the last instance in their constitutions’.⁷²

Under the TEU, any common defence operation would have to be unanimously decided by the European Council.⁷³ This decision would only have the legal force of a recommendation, and would need to be implemented by the EU member states ‘in accordance with their respective constitutional requirements’.⁷⁴ Should some member states propose an amendment of the EU Treaty to abolish the requirement of unanimity for a Council decision on this matter, then ‘[t]he Federal Republic of Germany would be constitutionally prohibited to take part in such a treaty amendment’, the Court said.⁷⁵ In other words, majority voting in the European Council on a common defence operation could only be introduced after a German constitutional amendment.⁷⁶

The Court notably interpreted Article 42(7) sentence 2 TEU (‘This shall not prejudice the specific character of the security and defence policy of certain Member States’) as catering for the German requirement of parliamentary approval to deployment decisions.⁷⁷ Moreover, ‘the constitutive requirement of parliamentary approval for the deployment of the Bundeswehr abroad is not open to integration’.⁷⁸ This means that any concrete deployment decision – also within an EU operation – will always require a specific approval by the Bundestag. This principle cannot be overturned by any (potential) supranationalisation of collective security and by the primacy of EU law over German law as allowed by Article 23 GG.⁷⁹ The requirement of parliamentary approval may not be circumvented by secondary EU law either.⁸⁰

The judgment stated obiter dictum (possibly by mistake) that deployments abroad, if outside a system of mutual collective security, are constitutionally permitted only ‘in case of national [territorial] defense [Verteidigungsfall]’.⁸¹ This seems to preclude other types of operations that may be permitted by international law.⁸² The best view is that, rather than outlawing these forms of military force, the Court simply left them aside as negligible for the purposes of this judgment, which concerned the EU and European integration.⁸³ In sum, it is doubtful whether the judgment really drew a ‘red line’⁸⁴ for military supranationalisation; in any case it created legal confusion.

2.5. The Pegasus judgment of 2015 on rescue operations and the obligation to inform

A 2015 judgment concerned Operation Pegasus, a rescue mission in 2011 in which 22 German nationals and 110 citizens of other states had been evacuated from Nafurah in Libya during the country’s civil war.⁸⁵ The question was whether the approval of the Bundestag is constitutionally required for urgent military actions once they are completed. Under the statute of 2005, the government is empowered to decide alone on a deployment in the case of ‘imminent danger’ and ‘for the rescue of humans from specific danger when their lives would be endangered by the public involvement of the Bundestag’.⁸⁶ The statute says the Bundestag must be informed before and in the course of action. It also says that the government must ‘immediately raise the request for approval. If the Bundestag rejects the request, deployment must be terminated’.⁸⁷

Most commentary had opined that the obligation to ask for approval would also govern deployments that are completed.⁸⁸ But the Court followed the opposing scholarly view⁸⁹ and held that in this scenario the Constitution does not oblige the government to seek an ex post approval, but only to furnish timely, complete, detailed, and written information to the Bundestag as a whole. In this judgment, the Court for the first time defined the legal effects of a parliamentary approval and clarified, and maybe slightly modified, the rationale of the parliamentary prerogative. It also sharpened the concept of ‘deployment’, which triggers the need for parliamentary approval, denied a political or military margin of appreciation of the government, and for the first time spelt out the parameters of the constitutional obligation to inform.

The doctrinal explanation was that the government’s lawful use of its urgency powers has the same legal effect as the exercise of the combined governmental and parliamentary power⁹⁰ in normal situations. It is an ‘auxiliary’ stand-alone power which ‘modifies’ the principle of parliamentary co-decision in situations where – for purely factual reasons – Parliament cannot exercise its competence.⁹¹ If an operation is ongoing, parliamentary approval or disapproval has only an ex nunc effect. In the words of the official translation of the judgment: ‘The required immediate involvement of Parliament after a deployment has begun […] does not have the legal effects of a retrospective decision, namely that if such retrospective approval were denied, the deployment would have been illegal from the beginning.’⁹²

The rationale and effect of parliamentary involvement as identified by the Court points against the need for an ex post approval of operations that are already terminated. Normally, the purpose of the parliamentary prerogative is that Parliament decides jointly with the executive and influences the concrete shape of the operation. Once the operation is over, this function can no longer be fulfilled.⁹³ By contrast, the purpose of parliamentary approval is not to assess authoritatively (verbindlich) the legality of an operation; this is incumbent upon the Court.⁹⁴ Political control by Parliament can be exercised through other types of instruments, for example parliamentary resolutions or even a motion of censure against the government.⁹⁵

Importantly, the Court for the first time ruled that parliamentary approval is needed for all deployments of German armed military forces abroad (‘war-like’ or not), and for deployments outside a system of collective security;⁹⁶ indeed approval is needed for ‘every unilateral deployment’⁹⁷ – irrespective of its military or political relevance – including, notably, purely humanitarian operations.⁹⁸ The legal threshold, namely at what point a ‘deployment’ calls for parliamentary involvement, is identical in all cases; it is a ‘uniform threshold’.⁹⁹ The executive branch does not enjoy a margin of purely military and political appreciation that would be beyond the reach of Parliament and of the Constitutional Court. Such leeway does not exist, not even in situations of emergency.¹⁰⁰ The key concept of ‘imminent danger’ is a legal concept, too; it is fully reviewable by the Court and does not leave space for political assessment by the government.¹⁰¹

Applying these principles as a benchmark, the Court found that the rescue operation in Nafurah was indeed a ‘deployment’ in the sense of the Basic Law and the relevant statute of 2005, not least because ‘at the time of the executive’s decision on the deployment the likelihood of having to use armed force was particularly high’.¹⁰² The non-occurrence of actual combat activity did not alter the fact that there had been a concrete expectation that German soldiers would be involved in combat during the evacuation.¹⁰³

The core contribution of the judgment is the new constitution-based obligation to inform. In order to allow Parliament to exercise the various forms of political control, it is the duty of the government to inform it in detail about military operations. Parliament enjoys an ‘entitlement to information’¹⁰⁴: the government ‘must inform the Bundestag promptly and in a qualified manner about the deployment of armed forces’.¹⁰⁵ Furthermore, it must present the factual and legal considerations on which the government based its decision, and details regarding the operation (with the level of detail depending on its political and military importance) and its outcome. This must happen as soon as possible, to the Bundestag as a whole, and normally in writing. The information must be ‘clear, complete’ and such that it ‘can be easily reproduced’.¹⁰⁶

The 2015 Pegasus judgment has been criticised on the grounds that the Court without sufficient justification cut back both the parliamentary prerogative¹⁰⁷ and also failed to do justice to the democratic and rule of law rationale of the requirement.¹⁰⁸ The critique is that even after completion of a deployment, a parliamentary approval could still deploy the legally relevant function of assuming ‘democratic’ co-responsibility for the entire operation.¹⁰⁹ The government would factor into its urgent decision-making the necessity to ask Parliament afterwards, and this prospect alone – foreseeable deliberation in the Bundestag – would influence government decisions. The control of legality by the Constitutional Court cannot fully replace scrutiny by Parliament because the scope of review is limited.¹¹⁰

Against this criticism, this author would argue that a backward-looking political responsibility seems quite empty, and that a more extended legal control beyond the review of the Constitutional Court is not necessary. Intensified information to the Bundestag, as required by the judgment, is feasible and satisfies democratic and the rule of law principles.¹¹¹ With its clear statements against any executive leeway, the judgment does not mark a turn towards de-parliamentarisation.

2.6. The operations against the Islamic State in Syria and Iraq since 2015 and the stretch of ‘collective security’

Since 2015¹¹² the German military has participated in OIR against Islamic State (IS) in Iraq and Syria, deploying not only around 500 troops but a number of Tornado and aerial refuelling aircrafts, as well as one frigate. Action includes the training of Peshmerga combatants in Northern Iraq, aerial refuelling and surveillance, reconnaissance, the exchange of information, and evacuation. The Bundestag was properly involved and provided a mandate for up to 1200 troops, which has so far been extended until 31 October 2018.¹¹³ In its formal request to the Bundestag, the German government relied on both traditional justifications in the law of nations for using military force. It stated that the international legal basis for the deployment decision was ‘Art. 51 of the UN Charter in conjunction with Art. 42(7) TEU as well as resolutions 2170 (2014), 2199 (2015), 2249 (2015) of the Security Council’.¹¹⁴ From the perspective of international law, neither justification works easily for the military action in and over Syria,¹¹⁵ and this has an impact on their constitutionality, as will be shown in section 3.

Members and factions of the parliamentary Opposition filed a complaint before the Constitutional Court against the deployment decisions in the context of OIR.¹¹⁶ It is unlikely that the Constitutional Court will reach the merits of the case.¹¹⁷ Should this happen, the Court might scrutinise the constitutional basis of the deployment and then would have to pronounce itself incidentally on its international lawfulness as well.

3.1. Overview

The German constitution specifically hooks onto and refers to the international law of peace. It contains a ‘constitutional command of peace’¹¹⁸ and a constitutional principle of ‘friendliness towards international law’.¹¹⁹ Moreover, Article 25 GG says that the ‘general rules of international law shall be an integral part of federal law’. This clause thus transports the international law-based prohibition on the use of force into domestic law.¹²⁰ A breach of the ban on force as a ‘general rule’ of international law will, however, not automatically lead to a violation of the constitution, because the ‘general rules’, while taking precedence over federal laws, still rank below the Basic Law.

Finally, the constitutional prohibition of a war of aggression¹²¹ is ‘tied to the concept in international law’.¹²² The constitutional concept follows the definition of aggression as spelt out in the UN GA resolution of 1974 and in Article 8bis ICC-Statute after the amendments of Kampala. Any activity that evidently constitutes an aggression in the sense of international law is at the same time unconstitutional.¹²³

The result of the combination of these constitutional provisions is that any manifest violation of the relevant rules of international law in the area of the use of force¹²⁴ will normally also violate the German constitution. This means that German constitutional law cannot, as a rule, be more permissive towards the use of force than international law.

The more difficult question is whether the constitution sets a higher bar and is more pacifist than international law. As a historical matter, this assumption was and is widespread as a lesson to learn from Germany’s past as an aggressor state. Because the Basic Law mentions only defence and collective security, there is no obvious constitutional basis for other types of military action.¹²⁵

Also, the relationship between the two explicit constitutional bases among each other is not fully clear. Under international law, self-defence (Article 51 of the UN Charter) and Chapter VII of the Charter are two distinct tracks. Under German constitutional law, these two modes are not mutually exclusive; there is ‘no strict antagonism between collective security and collective defense’, as the Constitutional Court put it (referring to Article 24(2) and Article 87a GG).¹²⁶ Finally, the constitutional bases are not fully congruent to international law. Article 24(2) GG is broader than Chapter VII, while Article 87a GG has been understood by some constitutional lawyers to be narrower than Article 51 of the UN Charter. Because of a traditionally narrow reading of ‘defence’ under Article 87a GG, the alternative constitutional basis – collective security¹²⁷ – has during the history of German military deployments been continuously expanded.

3.2. ‘Collective security’ under Article 24(2) GG

3.3. ‘Defence’ under Article 87a GG

Article 87a GG only covers operations ‘for purposes of defence’.¹⁵⁰ The interpretative question is what ‘defence’ means here. The constitutional notion of ‘defence’ is a concept of domestic law and as such autonomous from international law. On its face, the constitutional principle of friendliness towards international law would seem to require that the interpretation of the constitutional term should follow the evolution of international law. Indeed, both the German Federal Administrative Court¹⁵¹ and prevailing commentary assumes that the constitutional term ‘defence’ in Article 87a GG is fully congruent with the international law of self-defence,¹⁵² and therefore would seem to obey the same yardstick of legality.

This discussion has involved two questions. Who may be defended? And against whom? Both questions have emerged simultaneously and have been merged, because all controversial German contributions to collective action outside the framework of Article 5 of NATO or Chapter VII of the UN Charter (after 2011 in Afghanistan and after 2014/2015 in Syria) took place far away from German soil and were directed against terrorist attacks.

3.4. Constitutional law is more restrictive than the international law on the use of force

Other types of military action that are under some conditions allowed under international law, notably rescue operations of own nationals, intervention by invitation, humanitarian interventions in the framework of the responsibility to protect, and anti-terror and anti-piracy operations, are more difficult to justify under the Basic Law. Subsuming all these actions under Article 24(2) GG or, as recently suggested, under Article 87a GG is a stretch.

Firstly, and contrary to a scholarly suggestion, Article 87a GG should not be seen to cover the ‘defence of nationals’¹⁶⁹ (twinning territorial defence), that is, operations to evacuate and rescue nationals abroad. So far Germany has twice conducted such operations, but the Constitutional Court itself did not pronounce on their constitutional basis.¹⁷⁰

Unilateral ‘Blitz-type’ rescue operations, especially non-combat evacuation operations, such as the aforementioned Operation Pegasus in Libya, are mostly (and rightly) considered to be permitted under the law of nations, although opinion is divided as to the legal explanation. Many scholars allow such action under the heading of self-defence. This qualification opens the door to Article 87a GG. If, however, the international lawfulness is sought elsewhere (notably in an independent rule of customary law), Article 87a GG would not be available. Then, a constitutional basis found either in Article 32 GG (conduct of foreign affairs),¹⁷¹ in the right to life (Article 2(2) GG),¹⁷² or in Article 25 GG (general rules of international law as part of the law of the land) would seem to work only on the premise (not shared in this article) that unilateral non-defensive action is allowed by the Basic Law, and not barred by Article 87a GG.¹⁷³ The issue illustrates the tensions arising from the mismatch between the international legal bases and the constitutional grounds for military action abroad.

Secondly, a military strike upon invitation (such as the request by Iraq in 2014¹⁷⁴) may only be conducted if covered by either of the two constitutional provisions as discussed previously. Thirdly, current international law does not recognise an independent allowance to undertake humanitarian intervention. Any military delivery of the responsibility to protect may only happen in the framework of Chapter VII of the UN Charter,¹⁷⁵ and this would then also be covered by Article 24(2) GG.

Overall, the constitutional situation for Germany is that the state may not undertake all forms of military operations that are allowed under international law, except if multilaterally embedded. This is fully in line with the constitution’s wording and intent, based on Germany’s historic legacy. In terms of legal policy, Germany should avoid hiding behind a sham ‘collective security’ that is no more than several states acting in parallel and should likewise avoid pursuing a ‘defence interventionism’.¹⁷⁶

4.1. The trigger concept of ‘deployment’

The term around which the parliamentary approval turns is ‘deployment’. The provision of § 2(1) of the statute defines this as: ‘A deployment of armed forces is present when soldiers of the German army are involved in armed undertakings or when the involvement in an armed undertaking is to be expected.’¹⁸³ The provision of § 2(2) defines which activities are not to be considered as a ‘deployment’. These are, firstly, ‘preparatory measures and planning’ and, secondly, ‘humanitarian aid service and auxiliary action [humanitäre Hilfsdienste und Hilfsleistungen]’ with arms carried only for self-defence ‘when it is not to be expected that soldiers will be involved in armed undertakings’.¹⁸⁴

In 2008, the Federal Court fleshed out in more detail the concept of deployment. It also established a legal presumption for the requirement of parliamentary approval.¹⁸⁵ ‘Deployment’ can be distinguished from law enforcement activities by looking at the ‘genuinely military’ character of an operation and at the belligerence of the context.¹⁸⁶ The qualification as a ‘deployment’ is independent of the constitutional and international legal basis of the military operation. This also means that putative illegality under national or international law is irrelevant to the requirement of the Bundestag’s approval.

The need for secrecy is no reason in itself to forego Parliament¹⁸⁷ but might justify the delegation to parliamentary committees whose sessions are not public and which can be committed to strict confidentiality, for example the committee on defence.¹⁸⁸

4.2. Concrete expectation of combat is sufficient

Most importantly, the 2008 judgment of the Constitutional Court clarified that it is irrelevant whether an armed conflict or combat was already happening. The ‘concrete expectation that German soldiers will be involved in armed conflicts [bewaffnete Auseinandersetzungen] suffices’, says the Court.¹⁸⁹ The statute uses the term armed undertakings (bewaffnete Unternehmungen).¹⁹⁰ What is meant here is combat activity, not the existence of an armed conflict in terms of IHL.

The Court spelt out the statute and cut back the parliamentary prerogative slightly: if combat is only a remote and abstract ‘mere possibility’, then the action does not yet require approval by the Bundestag.¹⁹¹ The expectation of combat must be ‘concrete’ and ‘well-founded’, with ‘sufficient tangible actual evidence that a deployment […] may lead to the use of armed force’ and a ‘particular proximity to the use of armed force’.¹⁹² Involvement in armed conflicts, in the sense of actually using arms, ‘must be expected immediately’.¹⁹³ The assessment of probability must examine the ‘aggregation of factual circumstances’.¹⁹⁴ In integrated NATO operations, the participation of German soldiers, for example in the aerial surveillance of an adjacent country, can quasi ‘automatically’ lead to their use of armed force, because once the soldiers are dispatched, Germany can no longer influence the course of events.¹⁹⁵ It is irrelevant whether combat actually takes place; what counts is the ex-ante assessment of factual and temporal proximity.¹⁹⁶

It is neither necessary nor sufficient that the deployed personnel carry arms themselves. The threshold to deployment can be reached even if members of the military only supply combat-relevant information, perform reconnaissance, or give orders for the use of arms.¹⁹⁷

In order to assess when Parliament needs to be involved, the most difficult line to draw is probably between the ‘preparatory measures’ and the point where deployment begins. Borderline activities are the movement of troops to the territory of an ally, the delivery of arms, training, surveillance, and the furnishing of information. Training missions, which are in practical terms highly relevant, will normally qualify as ‘deployment’ only if they take place in a dangerous environment (such as those in Afghanistan¹⁹⁸). Another example of a borderline case is Germany’s participation in the EU ‘Sea Guardian’ operation in the Mediterranean. The ‘multifunctional mandate’ comprises surveillance, capacity building, and combatting terrorism and weapons smuggling. Government and Parliament treated this as a ‘deployment’ not least because it was in political terms controversial (due to its scope).¹⁹⁹

In the aftermath of 9/11, logistical activities – such as air transports of other nations’ peacekeeping soldiers and of materials, as well as the dislocation of AWACS airplanes in October 2001 to the US – were considered to be below the threshold. In contrast, the dispatch of German soldiers and the transfer of AWACS aircrafts from their home base in Germany to a Turkish base with a view to monitoring the airspace over Turkey in 2003 was determined to be a deployment by the Court because of the fear of a spill-over from the Iraq war.²⁰⁰

An important question, linked to the definition of the threshold, is the timing of parliamentary approval. If approval is sought late it risks ratifying a fait accompli.²⁰¹ But when exactly does an operation reach the point that the Bundestag must approve it? Under the statute, the request by government must be ‘in time [rechtzeitig] before the beginning of the deployment’.²⁰² An example is the training of Kurdish Peshmerga forces. The German government decided on 31 August 2014 to support training in Northern Iraq by furnishing military equipment, weapons and ammunition to the Peshmerga. Earlier in August, six German soldiers had been dispatched in Northern Iraq. In September 2014, further ‘non-lethal’ equipment was delivered and more soldiers stationed. In parallel, Iraqi Peshmerga combatants were trained in Germany.²⁰³ The government requested approval by the Bundestag only in December 2014, specifically for the ‘training mission in the Kurdistan-Iraq region’. Approval was then granted by the Bundestag in January 2015.²⁰⁴

At the opposite end of the spectrum, approval sought and given very early would risk becoming a blanket authorisation. So only the right timing will allow the Bundestag to embrace responsibility in a meaningful way.

4.3. Formalities

Normally, deployments are authorised for one year. The government starts to prepare the decision for prolongation several months before the lapse of this time period. The governmental request must contain information on the mandate, the territory, the international and constitutional legal basis, the maximum number of troops, the capacities, the planned duration, and expected costs and financing. The government diligently complies with this and even goes beyond it, for example by explaining the political context.²⁰⁵

The governmental requests are treated like parliamentary bills except that the second and third reading in the plenary are joined.²⁰⁶ Four committees (foreign affairs, defence, budget, and legal affairs) are usually involved in the preparation.

Practice shows that lengthiness in Parliament is no real problem. Normally, the processing of a request by the government runs over several weeks. But the rules of procedure of the Bundestag allow for accelerated treatment under certain conditions.²⁰⁷ For example, the approval of OIR took only four days.²⁰⁸ The decision in the Bundestag must be taken by a simple majority.²⁰⁹

The statute foresees a simplified procedure for ‘deployments with low intensity and moderate consequences’,²¹⁰ which requires involvement of two parliamentary committees, the foreign affairs committee and the defence committee. This has very rarely been used for prolongations of peace missions²¹¹ and has not become particularly practical.²¹²

The Bundestag can make an explicit reservation or formulate a condition, and thus tie its approval to specific factual or legal circumstances. Indeed, the government has occasionally asked for approval explicitly conditioned on the persistence or renewal of a Security Council mandate, for example for participation in peace missions in Sudan and Lebanon.²¹³ This means that the approval would expire should the Security Council not renew its authorisation. Otherwise, the approval will expire eo ipso only when circumstances have manifestly changed: an easy eo ipso expiration would create legal insecurity and thus compel the government to constantly seek renewal.²¹⁴

Also, in less obvious situations of change, expiration is unnecessary because Parliament can always make use of its right to recall;²¹⁵ the Bundestag remains the ‘master of its assent’.²¹⁶ Recall is a matter of political discretion (within the limits of the law) and may become relevant after elections. If Parliament recalls, then the government is obliged to withdraw as quickly as possible. The remote risk of incurring state responsibility, for example for failure to honour commitments under international law, is inherent in the constitutional division of competences.

The clause of § 5 of the Parlamentsbeteiligungsgesetz allows deployment without prior approval of the Bundestag in two scenarios: imminent danger²¹⁷ or rescue operations, when public involvement of the Bundestag would endanger the lives of those to be rescued.²¹⁸ In these two cases, government must inform the Bundestag,²¹⁹ and must promptly ask for subsequent approval for the operation. If the Bundestag refuses, the operation must be terminated.²²⁰ This statutory scheme implies that the urgent or rescue operation is still ongoing and not yet completed when the approval is sought. The Constitutional Court’s Pegasus judgment of 2015 clarified the legal situation, notably the obligation to inform, for completed rescue operations.²²¹

To conclude, the practice of parliamentary approval leans towards the extensive involvement of Parliament. Government reckons with the fact that the parliamentary Opposition will reclaim the prerogative, and therefore readily ask for approval in order to avoid a complaint before the Federal Constitutional Court. Practice also shows serious and engaged debates which have not become ritualised. The only routine are mandates on the basis of Security Council resolutions (Chapter VII-authorisations or peacekeeping).²²²

4.4. The aborted statutory reform

Against the background of the intensification of military engagement, the need for rapid action (for example within the NATO response force), and the prospects of pooling military capacities (such as foreseen by the Permanent Structured Cooperation (PeSCo) of the EU),²²³ and constant worries about Parliament obstructing the reliability of Germany as a military ally, a reform of the 2005 statute was ventilated but ultimately abandoned. The reform bill of 2016,²²⁴ based on a parliamentary committee report of 2015,²²⁵ sought to define operations below the threshold of deployment that would not need parliamentary approval. The bill also sought to codify the Pegasus judgment by prescribing the ex post information of Parliament on urgent rescue operations. Finally, it foresaw an ex post evaluation of deployments, reporting about secret operations, and annual reporting about ‘multilateral military alliance capacities’. The reform agenda had been from the outset criticised by Die Linke and Die Grünen (the Green Party) as a manoeuvre to undermine parliamentary power. Parliament could not and should not surrender its political responsibility for each and every single deployment by adopting a statute which would make government more of a gatekeeper.²²⁶ The reform petered out in 2017, not least because constitutional law experts doubted its compatibility with the nuanced constitutional case-law. The possible gain in legal security would have been lost through the risk of judicial proceedings (Organstreit) before the Constitutional Court.

5.1. Separation of powers

In Germany, as in other democratic states, foreign affairs have traditionally been viewed as the domain of the executive. The perceived needs for secrecy, swiftness, uniformity (speaking with one voice), and the demands of military alliances (Bündnisfähigkeit)²²⁸ stand in tension with parliamentary debate, which is open, slow, and a cacophony of many voices.

Still in 1984, the Constitutional Court admitted a ‘tendency of parliamentarisation in the formation of foreign affairs objectives’ but nevertheless strictly limited the involvement of Parliament to the approval of specific treaties, as explicitly foreseen in Article 59(2) GG.²²⁹ It denied any further powers of Parliament in the field of foreign relations and rejected the idea of an ‘erroneous all-encompassing parliamentary prerogative’ by pointing to the separation of powers, and it postulated a ‘core field of executivist responsibility’.²³⁰ Ten years later (in 1994), parliamentary involvement was still seen by the Court as an exception to the allocation of foreign affairs to the executive.²³¹ Today, this view has been overcome: both foreign and military affairs are generally regarded as a mixed power.²³²

The German political system is a parliamentary democracy in which the government emerges out of Parliament and mirrors the result of the elections to Parliament. In such a system, the separation between the legislature and the executive does not have great political significance. The parliamentary majority does not need an additional instrument because its political viewpoint is catered for in the government itself. So, politically speaking, parliamentary approval is a tool of the Opposition. This tool enjoys judicial protection because the Opposition possesses standing to instigate an Organklage proceeding claiming the violation of parliamentary power.²³³

5.2. Shifting rationale: from military to democracy

In the course of the almost twenty-five years since the invention of the requirement of parliamentary approval, its justification and rationale has evolved. In 1994, the Constitutional Court originally anchored the requirement in an ostensible German constitutional tradition and framed the requirement as a feature of the constitution of the armed forces (Wehrverfassung²³⁴). The conceptualisation, which prevailed from 1994 to 2008, placed the power to deploy the military outside the area of foreign affairs and thus avoided contradicting the aforementioned traditional view that foreign affairs was the domain of the executive.²³⁵ While this legal pedigree rendered the requirement of approval acceptable to traditionalists, it was more an academic postulate than living constitutional law. The German Parliament had the constitutional power to declare war only during a brief period of the Weimar Republic (1918–1933), though in practice never used it. German constitutional reality was such that the Reichs President held the dominant power over the army. By inventing the ‘parliamentary army’ in 1994,²³⁶ the Federal Constitutional Court belatedly satisfied the nineteenth-century quest for a constitutionalised citizens’ army and elevated a liberal aspiration to constitutional law.²³⁷

In later judgments and decisions, this special doctrinal construct was abandoned. Parliamentary approval was fitted into the pattern of the rule of law and democracy and thus ‘normalised’.²³⁸ In our times of increasing global interdependence and the blurring of the spheres of internal and external political affairs, the need for a thick democratic basis of ‘foreign’ relations is generally acknowledged. The involvement of the Bundestag in military dispatches is no longer an anomaly but in hindsight turns out to be a forerunner²³⁹ of an ongoing parliamentarisation and democratisation of foreign affairs, which is visible, for example, in the publication of traditionally secret treaty negotiations that have come under intense public and parliamentary scrutiny.

5.3. Making good for executivist NATO transformations

The requirement of parliamentary approval is also a corollary and a counterpoint to the government’s monopoly on developing the relevant treaty regimes, notably NATO. Parliament has been kicked out of participation in making the strategic decisions, that is, the successive NATO strategies by which the range of NATO activity has been much expanded. Inversely, it has gained the ultimate say on each single deployment. During the epochal change in the decade following the end of the Cold War, the executive branch’s power in the military sphere was amplified through constitutional interpretation in two ways: firstly by facilitating foreign deployments through a broad reading of Article 24(2) GG,²⁴⁰ and secondly by acknowledging the executive’s power to ‘develop’ international treaties, notably NATO, without the involvement of Parliament on the basis of a narrow reading of Article 59(2) sentence 1 GG. In this context, the function of the prior approval of Parliament on the domestic level is to counterbalance the executive’s power.

Under the Basic Law, important international treaties, namely those ‘that regulate the political relations of the Federation or relate to subjects of federal legislation’, need to be approved by federal statute (Article 59(2) GG). The function of this statute is to make the treaty part of the domestic legal order and to secure the democratic basis of the treaty which was negotiated and concluded by the executive.²⁴¹

While NATO had regularly adopted strategic concepts since its foundation in 1949, it was only after 1989 that ‘new’ strategic concepts led to a pronounced substantive and geographic expansion of the organisation’s activity.²⁴² Thereby, the organisation reacted to the melting away of the military menace posed by the Socialist Block, which had been its raison d’être, by refocusing on the emergence of new threats, notably global terrorism. NATO here gave allowance to ‘non-Article 5 operations’. Because these operations are beyond the substantive and geographical scope of the collective defence against an armed attack under Article 5 and 6 of NATO, they have come to be called ‘out-of-area’ operations.²⁴³

From a democratic perspective, the question is whether these strategic concepts are still covered by the original treaty and thus merely ‘developed’ the treaty-based system of collective security. If not, they would have actually changed the system and thus amounted to (informal) treaty revisions (amending treaties), which, given their political importance, fall under the rule of Article 59(2) sentence 1 GG and would thus have required a consenting statute by the German Parliament. The Constitutional Court had to deal repeatedly with this question.²⁴⁴ It stated that even important strategic documents that are not treaties will not require a parliamentary statute (or any other form of participation by the Bundestag). A statute is needed only for the conclusion of treaties (including amending them).²⁴⁵

From the perspective of the Basic Law, every German military contribution to each specific operation that ‘grows out of the seeds planted in the founding treaty’²⁴⁶ enjoys a democratic basis. The reason is that German participation is covered by the initial parliamentary statute (under Article 59(2) GG) assenting to the founding treaty of the relevant organisation (such as the UN, NATO, and the EU). This also means that an ultra vires operation would not only be outside the particular organisation’s founding treaty but at the same time outside the parliamentary statute that brought that treaty into the domestic legal order and would thus lack constitutional and democratic legitimacy.²⁴⁷

The gist of the newer Constitutional Court decisions on military deployments is that the parliamentary decision on each single military deployment is seen as compensating for the overall strategic decisions lacking parliamentary foundation.²⁴⁸ The AWACS II judgment of 2008 exposes this:

Curiously, the division of labour between the executive and Parliament has been reversed. Normally the legislature sets the general rules and the executive implements them. With regard to foreign military engagement, Parliament has been kept at bay from setting the rules in the form of developing NATO, and instead now decides on concrete cases of deployment.²⁵¹

To sum up, the question of democratic legitimacy has arisen not only with regard to concrete operations but with regard to strategic changes in relating to NATO. The involvement of Parliament has been designed as ‘an essential corrective’, as the Court put it²⁵²: as a counterweight to the executivist grand design. Today, this compensatory function has moved to the background – until another transformation of NATO happens to occur.

5.4. Non-delegation à l’allemande: ‘Wesentlichkeitstheorie’

The German conception of democracy requires important, or ‘essential’ (wesentlich), political decisions to have a parliamentary basis. The jurisprudential ‘rule of essential matters’ (Wesentlichkeitstheorie) is the functional equivalent to non-delegation doctrines. It was developed with a view to restrictions of fundamental rights and has more recently been applied to the projection of military force abroad. The Lisbon treaty judgment of 2009 uses the term ‘wesentlich’ by stating that ‘[t]he deployment of armed forces is of paramount importance for the individual legal standing of soldiers and of others affected by military action and involves danger of far-reaching implication’.²⁵³ It is not difficult to see that a military deployment is indeed an important decision, for foreign politics, for the lives of soldiers and their licence to kill in armed conflict, and their ensuing obligations under international humanitarian law.

Now neither the German constitution nor the 2005 statute offer much guidance for deployments. This indeterminacy of the legal basis is normally problematic under Wesentlichkeitstheorie. The requirement of parliamentary approval is apt to compensate for the weak substantive legal limits on foreign deployments by furnishing fine-tuned deliberative and public procedures for taking decisions.²⁵⁴ By endorsing the government’s request, the Bundestag does not give a one-off assent but ‘assumes an ongoing co-responsibility’.²⁵⁵ Political (democratic) accountability is thus supplied. The essentiality rationale notably explains why parliamentary approval is needed for all deployments independent of NATO (purely within the UN framework), including potential defensive action under Article 87a(2) GG. In those cases, executivist treaty development requiring a parliamentary ‘corrective’ is no issue. But because deployment is always essential, Parliament must be involved.

6.1. Abstract control of norms?

It has been suggested²⁵⁷ that the Bundestag’s approval (not the government’s request) of a deployment should be challengeable in a judicial proceeding called ‘(abstract) control of norms’.²⁵⁸ The chamber’s approval decisions belong to the body of federal law, but they are not ‘norms’ in a technical sense.²⁵⁹

The argument in favour of subjecting these acts to judicial proceedings is that they function like parliamentary acts: as ‘quasi-statutes’.²⁶⁰ Opening this type of proceeding could fill a gap in judicial protection because the benchmark here would be the entire constitution (and not only the competences of the Bundestag). Finally, the standing of the governments of the Länder in this judicial proceeding might compensate for the lack of involvement of the Parliament’s second chamber (which represents the Länder) in the deployment decision.

On the other hand, the qualification of the Bundestag’s decisions as statute-like is unpersuasive not least because the chamber cannot modify the government’s request and can only take it or leave it.²⁶¹ This does not have a law-making quality but rather amounts to ‘military micromanagement’ by Parliament.²⁶² The norm control proceeding does not fit and has so far never been tried. This situation is widely perceived to constitute a gap in the rule of law.

Against this background, and in response to the Bundestag’s approval of the first anti-IS mandate in December 2015, Die Grünen suggested introducing (through amendment of the statute on the Constitutional Court (Bundesverfassungsgerichtsgesetz)) a new type of procedure before the Constitutional Court, specifically to review the conformity of deployment decisions with the constitution (and indirectly with international law), with standing for three quarters of the Opposition in the Bundestag.²⁶³ But the proposal was defeated, and instead the Left faction tried an Organstreit against the anti-IS mandate, which will be explained in the next section.

6.2. Organstreit proceedings

The Organstreitverfahren (‘dispute between constitutional organs’)²⁶⁴ is a weapon in the hands of the Opposition. It looms over every government and motivates careful legal assessment both in the formal written request for authorisation of a military deployment by the executive and in parliamentary debates. The double legal scrutiny performed by both branches of government is then often complemented or rectified by the third layer of limited legal scrutiny by the Court. This has so far happened to more than ten cases on foreign deployments since the early 1990s, sometimes accompanied by provisional measures.

6.3. No constitutional complaints of soldiers

It has occasionally been argued that an individual soldier could file a constitutional complaint (Verfassungsbeschwerde)²⁹¹ with the argument that a military command ordering his participation in a specific operation violates his fundamental rights.²⁹²

On the level of statutory law, the Statute on Soldiers regulates the military duties of obedience. A soldier may refuse to obey only when an order runs against human dignity, and he must refuse to obey when the order asks for the commission of a crime.²⁹³ Orders of this kind are nonbinding. So far, no one has claimed that these statutory provisions are not in conformity with the constitution. The statute as such lawfully restrains the soldiers' fundamental right to personal liberty.²⁹⁴ A war of aggression is a felony under the German statute on international crimes,²⁹⁵ so that an order to participate in such a war would be nonbinding. Beyond this, most commentary opines that orders that request manifest grave violations of international law are nonbinding as well.

Against this legal background, it is unlikely that a constitutional complaint could be admissible let alone successful on the merits because the soldiers would (and could) first of all have to attack the commands by reference to the statutory law. In contrast, in a constitutional complaint, the Federal Constitutional Court only examines violations of fundamental rights, and the scrutiny is limited specifically to constitutional law. International law cannot become a benchmark for the Court simply via Article 25 or 26 GG. It is conceivable that a soldier’s freedom of conscience²⁹⁶ is affected by a military command to obey an unlawful (and potentially even nonbinding) order, to the extent that the soldier bases his personal moral convictions on the presumed illegality.²⁹⁷ In this way, requesting obedience or sanctioning disobedience might be seen as a disproportionate curtailment of the soldier’s freedom of conscience. In contrast, it is not self-evident that a soldier’s right to life²⁹⁸ encompasses protection specifically against the illegality of an operation. Factually, the risk of life and limb is not increased by legal flaws in the military commands the soldier receives. Nevertheless, but a proceduralised reading of the right to life might give rise to an entitlement not to be subjected to unlawful risks. Finally, the soldier’s general liberty²⁹⁹ could be breached by an unlawful command or by a military sanction in response to a refusal to obey an unlawful or even nonbinding military order.

However, the Federal Constitutional Court’s scrutiny upon a constitutional complaint would be limited to the question of whether the decisions of lower courts were arbitrary when denying that a command manifestly asked for a grave breach of international law.