Unsuccessful application in Organstreit proceedings challenging “Operation Counter Daesh”

Press Release No. 65/2019 of 10 October 2019

Order of 17 September 2019
2 BvE 2/16

In an order published today, the Second Senate of the Federal Constitutional Court dismissed as inadmissible an application in Organstreit proceedings brought by the parliamentary group in the German Bundestag DIE LINKE. In its application, DIE LINKE sought a declaration that, by approving the deployment of German armed forces (Bundeswehr) to prevent and suppress terrorist acts committed by the so-called “Islamic State” (ISIL), the Federal Government and the Bundestag had violated the Bundestag’s rights under Art. 24(2) in conjunction with Art. 59(2) first sentence of the Basic Law (Grundgesetz – GG). In its reasons, the Court stated that the applicant failed to sufficiently substantiate a violation of rights. Based on the facts of the case submitted by the applicant, the asserted violation can be ruled out from the outset.

Facts of the case:

Following the terrorist attacks in Paris on 13 November 2015, the Member States of the European Union expressed solidarity with France. When France invoked the mutual defence clause of Art. 42(7) of the Treaty on European Union (TEU) at a meeting of the Council of the European Union, the EU Member States unanimously pledged their aid and assistance to France by all the means in their power. In Resolution 2249 (2015) of 20 November 2015, the United Nations Security Council condemned the terrorist attacks and categorised ISIL as “a global and unprecedented threat to international peace and security”. It called upon UN Member States that have the capacity to do so to take all necessary measures, in compliance with international law, in particular with the United Nations Charter, as well as international human rights, refugee and humanitarian law, on the territory under the control of ISIL in Syria and Iraq, to redouble and coordinate their efforts to prevent and suppress terrorist acts and to eradicate the safe haven ISIL has established over significant parts of Iraq and Syria. The Federal Government declared its willingness to participate in a mission in Syria and Iraq on condition that Germany did not participate in direct combat action. On 1 December 2015, the Federal Government authorised the deployment of up to 1,200 soldiers of the German armed forces to prevent and suppress terrorist acts committed by the terrorist organisation ISIL, initially until 31 December 2016. It invoked Art. 24(2) GG, the right of collective self-defence under Art. 51 UN Charter, Security Council Resolution 2249 (2015) of 20 November 2015 and the mutual defence clause enshrined in Art. 42(7) TEU as well as Iraq’s consent as the legal bases for the deployment. The German Bundestag approved the deployment in its decision of 4 December 2015. The Bundeswehr deployment, named “Operation Counter Daesh”, began on 6 December 2015 with the German Navy providing protection for the French aircraft carrier Charles de Gaulle. In addition, the Bundeswehr provided Tornado reconnaissance aircraft, aircraft for air-to-air refuelling of fighter jets of the international alliance “Operation Inherent Resolve” and personnel in command posts and headquarters as well as on board NATO’s AWACS surveillance aircraft. The mission has been extended to include the training of high-ranking officers in the central Iraqi army by Bundeswehr soldiers. The mandate for the deployment was last extended by the Bundestag decision of 18 October 2018 until 31 October 2019. By letter of 10 December 2015, the Federal Republic of Germany notified the President of the Security Council that it exercised its right of self-defence against ISIL under Art. 51 UN Charter and specified that the actions were not directed against Syria. With its application in Organstreit proceedings, the parliamentary group in the German Bundestag DIE LINKE seeks a declaration that, by approving the deployment of German armed forces, the Federal Government and the Bundestag violated the Bundestag’s rights under Art. 24(2) in conjunction with Art. 59(2) first sentence GG.

Key considerations of the Senate:

The application is inadmissible because the applicant lacks standing to assert a violation of rights in this matter. The asserted violation of the Bundestag’s constitutional rights invoked by vicarious standing can be ruled out from the outset.

1. Pursuant to § 64(1) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), an application in Organstreit proceedings is only admissible if the applicant asserts that an act or omission on the part of the respondent violated, or directly threatened to violate, the rights and obligations conferred on the applicant or on the organ to which the applicant belongs by the Basic Law. Organstreit proceedings constitute an adversarial dispute between parties: they primarily serve to delineate the competences between constitutional organs or their constituent parts in a relationship governed by constitutional law. However, the purpose of Organstreit proceedings is not to review the objective constitutionality of an organ’s specific action. Rather, their main purpose, in respect of an applicant’s position, is the enforcement of rights. Thus, in Organstreit proceedings, an act or omission cannot be challenged solely on grounds of objective unconstitutionality. There is no scope in Organstreit proceedings for a general or comprehensive abstract review of the constitutionality of a challenged act, independent of the applicant’s own rights. The applicant cannot use Organstreit proceedings to enforce other (constitutional) norms; the proceedings only serve to protect the rights of state organs in relation to each other, rather than providing general constitutional oversight. No right of the German Bundestag can be derived from the Basic Law that would compel the Federal Government to refrain from any act that is substantively or formally unconstitutional. Organstreit proceedings also do not give rise to a general right of scrutiny of foreign and defence policy measures taken by the Federal Government. Thus, as regards the relation between the Bundestag and the Federal Government, Organstreit proceedings will mainly bear upon legislative powers and other participation rights of the Bundestag. Legislative competences of the Bundestag might be infringed upon not only through the appropriation of such competences, but also through acts that are of legal significance but lack statutory authorisation, where such authorisation is required under constitutional law.

2. The applicant did not sufficiently substantiate the assertion that the deployment challenged in the proceedings violated the rights conferred on the German Bundestag by the Basic Law (§ 64(1) BVerfGG). Based on the facts of the case submitted by the applicant, the asserted violation of the Bundestag’s legislative rights under Art. 24(2) in conjunction with Art. 59(2) first sentence GG can be ruled out from the outset.

a) The applicant’s main argument is that Art. 24(2) in conjunction with Art. 59(2) first sentence GG was violated given that the deployment challenged in the proceedings was not based on a recognised system of mutual collective security and given that the Bundestag would have had to approve the establishment of such a system. Essentially, the applicant thereby asserts that a system as set out in Art. 24(2) GG is required but does not exist in respect of the deployment challenged in the proceedings. This submission is not sufficient for asserting a violation of the Bundestag’s rights in the present Organstreit proceedings because the applicant hereby attempts to establish that the rights of the Bundestag as a constitutional organ are affected solely by referring to the Bundestag’s status as a legislature (in treaty matters), regardless of whether a treaty was actually concluded or executed by the Federal Government. However, this status on its own does not confer on the Bundestag a right within the meaning of § 64(1) BVerfGG given that such a right would otherwise make it possible to carry out an abstract review in Organstreit proceedings of the constitutionality of executive action.

To the extent that the applicant asserts a violation of the rights of the Bundestag following from Art. 59(2) first sentence in conjunction with Art. 24(2) GG and related to its status as a constitutional organ on the grounds that there is an act of legal significance which lacks the statutory authorisation required by constitutional law, it disregards that such a violation of rights could only be found if the Federal Government had concluded a (new) treaty within the meaning of Art. 59(2) GG or if it had exceeded the limits of an act of approval to a treaty within the meaning of Art. 59(2) GG relating to an existing system of mutual collective security pursuant to Art. 24(2) GG. The applicant asserts neither of these scenarios in its main submission.

b) The applicant sets out the need for a broader design of Organstreit proceedings on the grounds that adherence to the constitutional requirements regarding the deployment of armed forces would otherwise be the sole and unchallengeable responsibility of the executive. However, this submission, too, is not capable of establishing the applicant’s standing to assert a violation of rights in this matter. It is not the executive, but rather the German Bundestag as the organ representing the people that is entrusted with deciding on deployments abroad, given the constitutional requirement of parliamentary approval of these matters. Moreover, the constitutional significance of a measure does not justify establishing new types of proceedings or extending existing types of proceedings before the Federal Constitutional Court; this would run counter to the principle of enumeration enshrined in the Basic Law. It is for the constitutional legislature rather than for the Federal Constitutional Court to create new types of proceedings in order to address conflicting value decisions.

3. By way of subsidiary submission, the applicant asserts that the deployment exceeded the limits of integration set by the Act of Accession of the Federal Republic of Germany to the Charter of the United Nations (Federal Law Gazette, Bundesgesetzblatt – BGBl II 1973 p. 430) and that this amounted to a violation of the rights of the Bundestag under Art. 24(2) in conjunction with Art. 59(2) first sentence GG. However, this can also be ruled out.

Based on the facts of the case submitted by the applicant, it is not ascertainable that the deployment challenged in the proceedings or the underlying decisions by the respondents contravene the purposes, structure or fundamental principles of the United Nations, let alone its objective of maintaining peace. It is irrelevant in this respect whether the Federal Constitutional Court agrees with the respondents’ understanding of international law, upon which the respondents’ actions are based. In principle, the review is limited to finding whether this understanding exceeds tenable limits. It is the task of the Federal Government to provide a tenable interpretation of its rights and obligations in a system under Art. 24(2) GG and to act within such a system, also in response to new security challenges; this is generally within the scope of the authorisation granted by the act of approval to a treaty. The applicant asserts that the limits of the Act of Accession to the UN Charter were exceeded given that the respondents provided an untenably broad interpretation of Art. 51 UN Charter. However, such an untenable interpretation cannot be ascertained. Neither the wording nor the object and purpose of Art. 51 UN Charter preclude the application of the right of self-defence to attacks committed by non-state actors operating on the territory of a third country. The case-law of the International Court of Justice (ICJ) does not preclude such an application; the decisions of the ICJ provide factual guidance beyond the particular case decided, serve as a source of international law pursuant to Art. 38(1) lit. d of the ICJ Statute and must be taken into account by German courts based on the Constitution’s openness to international law.

It can also be ruled out that the limits to integration of the Act of Approval to the Treaty of Lisbon of 13 December 2008 were exceeded. Contrary to the applicant’s view, the case-law of the Federal Constitutional Court is not to be interpreted to the effect that the European Union can generally not be considered as a system within the meaning of Art. 24(2) GG. Rather, it is at least tenable to regard the European Union as a system of mutual collective security. In principle, the deployment of armed forces based on the mutual defence clause enshrined in Art. 42(7) TEU is not ruled out under constitutional law. Given that the mutual defence clause refers to the right of self-defence set out in the UN Charter, the assumption that the conditions of Art. 42(7) TEU are also met appears tenable. When the Act of Approval to the Treaty on European Union was adopted in 2007, the international community was already acutely aware of the potential threats posed by non-state actors owing to the 9/11 attacks. It was thus foreseeable at the time that a terrorist attack might one day be held to fit the conditions of the mutual defence clause of Art. 42(7) TEU, as in the present case. With regard to the legal consequences, it cannot be ascertained that the deployment challenged in these proceedings exceeded the limits of what was to be expected in a mutual defence scenario under Art. 42(7) TEU, given that the Member States are under the obligation, in the wording of Art. 42(7) TEU, to provide aid and assistance to the attacked Member State by all the means in their power.