Federal Constitutional Court - Press office -
Press release no. 52/2008 of 7 May 2008
Judgment of 7 May 2008 – 2 BvE 1/03 –
Deployment of German soldiers in AWACS aircraft over Turkey required
the approval of the Bundestag
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.
This press release is also available in the original german version.
|
