Bundesverfassungsgericht - Pressestelle -
Press Release 26/2003 of 25 March 2003
about the Order of 25 March 2003 - 2 BvQ 18/03 -
Federal Constitutional Court:
On the Participation of German Soldiers in
NATO's AWACS Operation in Turkey
With its order of 25 March 2003, the Second Senate of the Federal
Constitutional Court (Bundesverfassungsgericht) rejected the motion
for a temporary injunction against the Federal government lodged by
the FDP parliamentary group in the German Bundestag (the lower
house of the German parliament).
Facts of the Case:
By way of its motion, the FDP parliamentary group wanted to achieve
that the Federal government immediately submits the issue to the German
Bundestag in order to bring about a decision about the participation of
German soldiers in the AWACS operation. The FDP parliamentary group
argued that the participation of German soldiers in NATO's AWACS
operation in Turkish airspace was no "routine measure" but rather, a
military operation that required the German Bundestag's approval. In
the opinion of the FDP parliamentary group, it was unrealistic to
assume that the operation of AWACS aircraft for the protection of
Turkey could be kept strictly separated from the operation of other
aircraft in Iraqi airspace.
The Senate gave, in essence, the following grounds for its decision:
Pursuant to the factual situation as it is known to date, the motion is
unsuccessful.
When reviewing the requirements in temporary injunction proceedings,
the Federal Constitutional Court employs, in principle, strict
standards. The prerequisites are even stricter when, as in the present
case, the measure concerned has implications in the fields of
international law or foreign policy.
1. Parts of NATO's AWACS unit, which is made up, inter alia, of a
considerable number of German soldiers, have been deployed to Turkey.
In the present geopolitical situation, it cannot be excluded that this
is an operation that requires the Bundestag's approval.
Proceedings in the main action, which are not pending as yet, will have
to ascertain the extent of the requirement of the Bundestag's
constitutive approval set forth in the part of constitutional law that
concerns defence. Under the current political conditions in which wars
are no longer formally declared, a gradual involvement in armed
conflicts is equivalent to an official entry into war. Therefore, in
principle, any participation of German armed forces in armed operations
is subject to parliament's constitutive participation. Apart from this,
it must be ascertained at what point in time it can be assumed that a
"participation of armed forces in armed operations" takes place, in
particular, at what point German soldiers are "involved in armed
operations". In the present case, the question must be answered to what
extent the participation in operations in integrated NATO units becomes
a participation in armed operations, which will trigger the requirement
of parliamentary approval, if such units survey the airspace of an
Alliance member whose state territory directly borders on a territory
that is involved in war, or if surveillance, apart from this, extends
to the territory of a state that is involved in war.
According to the Senate's present state of knowledge, the factual
development of the situation does not provide any evidence of a direct
involvement in combat action. Therefore the motion is not patently
well-founded.
2. When weighing the consequences that would arise in the event that
the temporary injunction is not issued but the underlying application
were eventually successful against the negative effects that would
arise if the requested temporary injunction is granted but the
underlying application were later unsuccessful, the Federal
Constitutional Court found against the applicant, whose motion is
therefore rejected.
On behalf of the Bundestag, the applicant invoked the requirement of
the Bundestag's constitutive approval. The Bundestag's right to
participate in the decision-making process is very important because
the Bundeswehr is a so-called parliamentary army (Parlamentsheer). The
Bundeswehr is thus integrated in the democratic constitutional system
of a state under the rule of law. Therefore the involvement of German
soldiers in armed operations without the Bundestag's approval is, in
principle, a serious encroachment upon parliament's rights.
On the other hand, there is, on the side of the executive, the
responsibility for foreign politics, for which the executive has its
own core area of discretion. To the extent that the requirement of
parliament's approval does not apply, it is solely for the Federal
government to take the foreign policy decision to what extent the
Federal Republic of Germany will participate in the implementation of
NATO's Defence Planning Committee resolution of 19 February 2003. If
the required temporary injunction were issued, this would, for the
Federal government, result in the constraint of having to seek the
Bundestag's political approval in an emergency situation with regard to
foreign policy, or, if this is supposed to be avoided, of withdrawing
the German soldiers from the integrated NATO units concerned; such
constraint would constitute a considerable encroachment upon the core
area of the Federal government's responsibility in the fields of
foreign and security policy if the outcome of the proceedings in the
main action were to show that in the specific case, the Bundestag has
no right to participate in the decision-making process.
The Senate could not establish a considerable predominance of the
rights of the Bundestag, which would have been necessary for issuing
the temporary injunction. In the weighing of interests, the Federal
government's undiminished capacity to act is of special importance also
in the interest, of the state as a whole, in Germany's reliability in
the fields of foreign and security policy. This interest is at least of
equal importance as the Bundestag's threatened legal position.
Order of 25 March 2003 - Reference: 2 BvQ 18/03 -
Karlsruhe, 25 March 2003
This press release is also available in german.
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