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On the Participation of German Soldiers in NATO's AWACS Operation in Turkey

Press Release No. 26/2003 of 25 March 2003

Order of 25 March 2003
2 BvQ 18/03

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