Bundesverfassungsgericht

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Deployment of German soldiers in AWACS aircraft over Turkey required the approval of the Bundestag

Press release No. 52/2008 of 07 May 2008

Order of 07 May 2008
2 BvE 1/03

The Federal Government should have obtained the approval of the German Bundestag to the deployment of German soldiers in NATO AWACS aircraft for aerial surveillance above the sovereign territory of Turkey in spring 2003. This was decided by the Second Senate of the Federal Constitutional Court in a judgment of 7 May 2008. There is a requirement of parliamentary approval under the provisions of the Basic Law (Grundgesetz - GG) which concern defence for the deployment of armed forces if the context of a specific deployment and the individual legal and factual circumstances indicate that there is a concrete expectation that German soldiers will be involved in armed conflicts. These conditions were fulfilled in the present case. By carrying out aerial surveillance of Turkey in NATO AWACS aircraft, German soldiers took part in a military deployment in which there was tangible actual evidence of imminent involvement in armed operations.

Facts of the case:

In February 2003, Turkey applied for consultations between the members of NATO under Article 4 of the NATO Treaty. On the basis of the consultations and planning carried out after this, the NATO Defence Planning Committee on 19 February 2003 authorised the NATO military authorities to station NATO AWACS aircraft and systems to protect against missile attacks and attacks with chemical and biological weapons in Turkey. Thereupon, first two and approximately three weeks later a further two NATO AWACS aircraft were moved from their home base in Geilenkirchen to Konya Air Base in Turkey. In the period from 26 February 2003 or 18 March 2003 to 17 April 2003, the four aircraft were deployed in Turkish airspace for surveillance purposes. The AWACS aircraft deployed constitute an Airborne Warning and Control System to give early warning of aircraft or other flying objects. The system has control and command functions and serves to direct fighter aircraft; the AWACS aircraft themselves do not carry weapons. The crews consist of members of the forces of twelve NATO member states. Approximately one-third of the crew members are soldiers of the Bundeswehr (German Federal Armed Forces).

In March 2003, the Chairman of the parliamentary group of the Freie Demokratische Partei (FDP) informed the Federal Chancellor that in the opinion of the FDP parliamentary group the Federal Government had an obligation to apply for the approval of the German Bundestag of the participation of German soldiers in the AWACS deployments over Turkey. At least, he wrote, the Federal Government must, in the case of armed conflict, be prepared to pass without delay a resolution on such an application and submit it to the German Bundestag for votes to be taken. The Federal Government refused to apply for the approval of the German Bundestag. As grounds, it stated that the NATO AWACS aircraft over Turkish territory conducted only routine flights. Their sole duty was strictly defensive aerial surveillance over Turkey. It stated that they provided no support whatsoever to deployments in or against Iraq.

After the armed conflict had begun in Iraq in the early morning hours of 20 March 2003, FDP Bundestag members and the FDP parliamentary group introduced a motion for a resolution in the session of the German Bundestag on the same day. By this motion, the German Bundestag was to call on the Federal Government to fulfil its duty under the Basic Law and apply without delay for the approval of the German Bundestag, which was essential, of the participation of German soldiers in the AWACS deployments over Turkey. The motion failed to receive the necessary majority.

The FDP parliamentary group filed an application for a temporary injunction to the effect that German participation in the AWACS deployments in Turkey might be maintained only on the basis of a resolution of the Bundestag; the Second Senate of the Federal Constitutional Court rejected this application by an order of 25 March 2003.

In its application in the main action, the applicant petitioned the court to find that the Federal Government had violated the rights of the German Bundestag by failing to obtain its approval for the deployment of German soldiers in measures of aerial surveillance for the protection of Turkey. It submitted that this was a deployment that required parliamentary approval. The deployment of the AWACS aircraft in Turkey, it stated, was by no means a pure routine measure, unlike the surveillance of a border in peacetime. On the contrary, Turkey's request for NATO protective measures proved that this deployment was of military significance in an armed conflict and was to provide protection against a concrete military threat. A decision that is as essential for the state as the display of military power by use of or threatening with armed force may not be entrusted to the executive alone. This also followed from the requirement to guarantee legal certainty for the German soldiers involved and give them political support, the applicant submitted.

In essence, the decision is based on the following considerations:

1. In its judgment of 12 July 1994, the Federal Constitutional Court considered the totality of provisions of the Basic Law which concern defence and derived from the Basic Law, against the background of German constitutional tradition, a general principle that every deployment of armed forces requires the essential prior approval of the German Bundestag. Under this principle, the authorisation contained in Article 24.2 GG to join a system of mutual collective security is the constitutional basis for the participation of the Bundeswehr in deployments outside the federal territory, insofar as these occur within and pursuant to the rules of such a system. Article 59.2 sentence 1 GG provides that the German Bundestag must approve the treaty basis of a system of mutual collective security. In contrast, the concretisation of the treaty and filling out the details of the integration programme contained in it is the duty of the Federal Government. German participation in the overall strategic direction of NATO and in decision-making as to specific deployments of the alliance is quite predominantly in the hands of the Federal Government.

2. But the freedom of the Federal Government to structure its alliance policy does not include the decision as to who, on the domestic level, is to determine whether soldiers of the Bundeswehr will take part in a specific deployment that is decided in the alliance. By reason of the political dynamics of an alliance system, it is all the more important that the increased responsibility for the deployment of armed forces should lie in the hand of the body that represents the people. The requirement of parliamentary approval under the provisions of the Basic Law which concern defence is therefore an essential corrective to the limits on parliament's responsibility in the area of foreign security policy. The German Bundestag is competent to make the fundamental and essential decision as to the deployment of armed forces; it bears the responsibility for the armed deployment of the Bundeswehr abroad. In view of the function and importance of the requirement of parliamentary approval under the provisions of the Basic Law which concern defence, its scope may not be defined restrictively. Instead, the requirement of parliamentary approval must in case of doubt be interpreted in favour of parliament. If and to the extent that competence of the German Bundestag in the form of a right of participation in decisions under the provisions of the Basic Law which concern defence can be derived from the Basic Law, there is necessarily no freedom for the Federal Government to decide on its own authority. The requirement of parliamentary approval is part of the structural principle of the separation of powers, not a mechanism to break down the barriers between them.

3. If German soldiers are involved in armed operations, this is a deployment of armed forces which under the Basic Law is permissible only on the basis of the essential approval of the German Bundestag. It is not relevant for the requirement of parliamentary approval under the provisions of the Basic Law which concern defence whether armed conflicts in the sense of combat have already taken place, but whether, in view of the specific context of the deployment and the individual legal and factual circumstances, the involvement of German soldiers in armed conflicts is concretely to be expected. The mere possibility that there may be armed conflicts during a deployment is not sufficient for this. It is only the well-founded expectation of involvement in armed conflicts that subjects a foreign deployment of German soldiers to the requirement of parliamentary approval. There must firstly be sufficient tangible actual evidence that a deployment, by reason of its purpose, the concrete political and military circumstances and the deployment powers, may lead to the use of force of arms. Secondly, there must be particular proximity to the use of force of arms. For this to apply, the involvement must be expected immediately. There is an indication that German soldiers may be involved in armed conflicts if they are carrying arms abroad and are authorised to use them.

The question as to whether there is involvement of German soldiers in armed operations is subject to full judicial review. The Federal Government is not granted latitude for assessment or prognosis that cannot be verified, or that can be verified only to a limited extent, by the Federal Constitutional Court.

4. By this standard, the involvement of German soldiers in the aerial surveillance of Turkey by NATO from 26 February to 17 April 2003 was a deployment of armed forces which under the requirement of parliamentary approval under the provisions of the Basic Law which concern defence required the approval of the German Bundestag. By carrying out aerial surveillance of Turkey in NATO AWACS aircraft, German soldiers took part in a military deployment in which there was tangible actual evidence of imminent involvement in armed operations. The AWACS aircraft deployed were part of a system of concrete military protective measures against a feared attack on the NATO area. The monitoring of Turkish airspace from the outset had a specific connection to a military conflict with Iraq, which was considered possible by reason of concrete circumstances. At the latest from 18 March 2003 on, NATO had seriously prepared for such a conflict, because the beginning of combat operations in Iraq was generally expected. It was clear now that there was more than a merely abstract possibility of armed conflicts. There was tangible actual evidence that the involvement of NATO in a military conflict was to be expected.

An involvement of German soldiers in armed operations was also immediately to be expected. At the latest when the rules of engagement that had been extended because of the deterioration of the situation were introduced, the involvement of German soldiers in armed operations depended only on whether and when Iraq would launch an attack on Turkey.