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Organstreit proceedings brought by the Left parliamentary group on the Bundeswehr deployment in Kosovo unsuccessful
Press Release No. 122/2009 of 23 October 2009
Order of 13 October 2009
2 BvR 4/08
Since 1999, the Bundeswehr (German Federal Armed Forces) has been participating in the international KFOR mission in Kosovo, which, on the basis of a UN mandate, seeks to prevent the violent confrontations between Serbs and Kosovo Albanians from flaring up again. In February 2008, Kosovo unilaterally declared its independence, breaking away from Serbia, and has since been recognised by a large number of states, among them the Federal Republic of Germany. After the declaration of independence, the Federal Government continued the Bundeswehr's ongoing military commitment. The Organstreit proceedings (proceedings on a dispute between supreme constitutional bodies) brought by the Left Party parliamentary group are directed against this. The Left Party parliamentary group is of the opinion that Kosovo's declaration of independence has essentially changed factual and legal circumstances, and it applies to find that a new approval would have had to be obtained from the German Bundestag before continuing the KFOR deployment of the Bundeswehr.
By its order of 13 October 2009, the Second Senate of the Federal Constitutional Court rejected the application directed against the Federal Government pursuant to § 24 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz - BVerfGG). According to this provision, applications may be rejected by a unanimous order of the Court if they are inadmissible or clearly unfounded. The Senate does not object to the Bundeswehr deployment having been continued after Kosovo's declaration of independence. It held that the Federal Government was not constitutionally obliged to obtain a new approval from the German Bundestag without delay.
The Federal Constitutional Court's case-law has clarified that the Bundeswehr is a parliamentary army. Every deployment of armed forces therefore requires the essential approval of the German Bundestag, which in principle must be obtained in advance. It follows from this principle, which is known as the requirement of parliamentary approval (Parlamentsvorbehalt), that the Federal Government must obtain the German Bundestag's approval of a deployment of armed forces anew if factual or legal circumstances have ceased to exist which have been mentioned as necessary preconditions for a deployment in the resolution of approval. With regard to the question of when a new resolution of approval by the German Bundestag will be necessary, aspects of legal certainty and legal clarity are decisive, and must therefore be taken into account, in the present case. Accordingly, a parliamentary resolution of approval cannot lose its effect if the continued existence of the circumstances on which the Bundestag based its approval merely becomes doubtful. Instead, the requirement of parliamentary approval demands that in cases of doubt, the Bundestag itself assume responsibility of the final assessment of the circumstances in question. As the master of its own decision on approval, the Bundestag has the possibility under constitutional law to itself disperse doubts about the continued validity of its approval. If necessary, it can exercise its right to call back the troops, i.e. it can formally end a deployment of armed forces. Such a resolution to call back the troops can only be dispensed with - in the sense that approval is automatically rendered ineffective - if the circumstances to which the approval relates have obviously ceased to exist. This standard of evidence is constitutionally required because otherwise, the Basic Law would place the Federal Government in a dilemma: It would have to obtain new Bundestag approvals as purely precautionary measures with every contentious change of the factual or legal circumstances, so as to avoid exposing itself to the reproach of a violation of the constitution by omission.
Even after Kosovo's declaration of independence, the Bundeswehr deployment was allowed to be continued on the basis of the parliamentary approval granted previously. What is decisive for the dispensability of a new decision by the German Bundestag is that the unilateral breaking away from Serbia has not evidently dispensed with the mandate of deployment under international law on which the Bundestag had made contingent its previous approval. On the contrary, the UN mandate has neither been eliminated to date, nor has it been replaced by a new resolution. It remains in force for an unlimited period of time. If the required standard of evidence is applied, the Senate does not have to review whether the UN mandate continues to exist only formally but not substantively, as has been argued by the applicant. The objective of Organstreit proceedings is to protect the rights of the state bodies in their relations with one another; not a general supervision under the constitution or even under international law. Moreover, the German Bundestag has not formulated any essential preconditions for approval apart from the continued applicability of the UN mandate. The Bundestag could have easily expressed a possible will to approve the Bundeswehr deployment in Kosovo only on the proviso of certain external circumstances. It has, however, not done so.