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On the Scope of the Requirement of Parliamentary Approval for Deployments of the Armed Forces in Cases of Imminent Danger [2 BvE 6/11]

Judgment of 23 September 2015

In a decision pronounced today, the Second Senate of the Federal Constitutional Court further specified the constitutional standards applying to the Bundestag’s right to participate in decision-making concerning deployments of armed German forces abroad. All deployments of armed military forces require parliamentary approval; there is no additional requirement that the deployment be of a certain military importance. In cases of imminent danger, the Federal Government may, by way of exception and for the time being, decide upon deployments alone. However, it is under the obligation to seek the Bundestag’s approval for continuing the deployment as soon as possible. Should the deployment in question already be over, the Federal Government must inform the Bundestag promptly and in a qualified manner of the reasons for its decision and the details of the deployment; yet, it is not obliged to seek retrospective approval by the Bundestag.

Therefore, the application for Organstreit (dispute between federal organs) proceedings lodged by the parliamentary group of ALLIANCE 90 / THE GREENS (BÜNDNIS 90 / DIE GRÜNEN) is unsuccessful. The evacuation of German citizens from Libya on 26 February 2011 constituted a deployment of armed military forces, which required parliamentary approval but was over before Parliament could be called upon.

Facts of the Case:

The Organstreit proceedings concern the issue of whether the Federal Government violated the rights of the Bundestag by not seeking its retrospective approval for deploying Bundeswehr (German armed forces) soldiers to evacuate German citizens from Libya on 26 February 2011. For further details concerning the facts of the case please see press release no. 105/2014 of 25 November 2014 (translator’s note: This press release is available only in German).

Key Considerations of the Senate:

  1. a) The requirement of parliamentary approval for deployments of armed military forces (Parlamentsvorbehalt), which applies directly by virtue of the Constitution, gives the Bundestag the right to participate in decision-making concerning such deployments. In principle, parliamentary approval must be obtained before the deployment commences. The requirement of parliamentary involvement is not limited to deployments of armed military forces within systems of collective security but applies to all deployments of armed German forces abroad.
  2. b) Considering its function and importance, the requirement of parliamentary approval enshrined in the Constitution’s provisions on armed forces must be interpreted in favour of Parliament. In particular, the issue of whether parliamentary approval is necessary cannot depend on the political or military evaluations and prognoses of the Federal Government – this holds true even in cases of imminent danger. Where the Constitution assigns a competence to the Bundestag in the form of a right to participate in decision-making in military matters, there is no room for independent decisions of the Federal Government.
  3. a) According to the jurisprudence of the Federal Constitutional Court, Parliament must be involved in cases concerning “deployments of armed military forces”. Deployments fall within this definition if German soldiers are involved in armed activities. For making this determination, it is irrelevant whether there already is armed combat. What is decisive is whether there is a specific expectation that German soldiers will become involved in armed hostilities. Such a specific expectation must be based on tangible factual circumstances indicating that a deployment, taking into account its purpose, the particular political and military situation as well as the powers of the deployed forces, may lead to the use of armed force. Furthermore, the situation has to be such that involvement of German soldiers in armed hostilities is to be expected immediately. This can also be the case if the operational planning and the powers of the deployed forces indicate that due to the overall situation involvement of German soldiers in armed combat is probable and only depends on coincidences within the chain of factual events. The fact that the deployed soldiers are armed and authorised to use their weapons can serve as indicator for an impending involvement of German soldiers in armed hostilities. However, as long as the authorisation to use force is limited to cases of self-defence and the deployment is of a non-military nature, this authorisation alone does not lead to the deployment requiring parliamentary approval.
  4. b) In principle, every deployment of armed German forces requires constitutive parliamentary participation. Even though the requirement of parliamentary approval was conceived having in mind the historic image of entry into a war, it is not limited to actual wars or war-like deployments abroad. The constitutive parliamentary participation provided for by the Constitution does not require that deployments envisaged by the Federal Government fulfil the historic image of entry into a war. Apart from the specific expectation of involvement in armed hostilities, deployments of armed forces do not need to be of particular military importance and do not need to aim at the offensive use of armed force in order to require parliamentary approval; a humanitarian purpose does not per se suspend the requirement of parliamentary approval. In principle, even deployments that evidently are of little importance and scope or of minor political importance may require parliamentary approval under the Constitution.
  5. a) As a rule, the Constitution prohibits deployments of armed military forces without prior parliamentary approval. Thus, the Federal Government and the Bundestag must ensure that, in general, parliamentary approval is obtained before the decision to use armed force is taken and that no such decision is taken before approval proceedings have been completed.
  6. b) In cases of imminent danger, the Federal Government may, by way of exception, preliminarily order armed military forces to be deployed without prior parliamentary approval. In order for a deployment to be continued, however, the Bundestag must approve it as soon as possible. This required immediate involvement of Parliament after a deployment has begun does not have the legal effects of a retrospective approval, namely that if such retrospective approval were denied, the deployment would have been illegal from the beginning on. The Federal Government’s emergency decision rather has the same legal effects as a decision taken in the usual order of things, with prior approval of the Bundestag. Therefore, in cases of deployments initiated by emergency decision of the Federal Government, parliamentary approval is constitutive only for the future. Denial of parliamentary approval obliges the Federal Government to terminate the deployment and to withdraw the forces deployed.
  7. The issues of whether German soldiers were involved in armed activities and whether there was imminent danger are subject to full review by the Federal Constitutional Court. In particular, constitutional review of the criterion of imminent danger does not exceed the judiciary’s functions. Limitations of this kind are acknowledged when it comes to political discretion in the field of foreign policy as well as in defence matters. However, the Federal Government’s factual and legal evaluation in assuming imminent danger is no political decision but a determination of whether a factual situation fulfils the legal requirements of an emergency power that permits the Federal Government to take a preliminary (political) decision on an armed deployment of the Bundeswehr abroad – this determination can be reviewed using objective criteria. The legality of the decision depends on the facts known to the Federal Government at the time.
  8. a) There is no room for constitutive parliamentary approval if Parliament cannot influence a deployment of armed military forces ordered by the Federal Government under its emergency powers for cases of imminent danger because it was over before parliamentary approval could be sought. Despite the subsidiary nature of the Federal Government’s emergency power, the Federal Government’s emergency decision to deploy armed military forces does not require retrospective approval by the Bundestag in order to be effective and legal. Moreover, it does not pertain to the Bundestag to judge the legality of executive actions. Therefore, retrospective decisions by Parliament are of no legal value. Thus, the constitutional requirement of parliamentary approval does not require the Federal Government to seek a Bundestag decision upon completed deployments.
  9. b) However, the Bundestag as well as its committees are tasked with exercising parliamentary oversight over deployments of armed military forces that were initiated by emergency decision of the Federal Government because of imminent danger and that were over before Parliament could be involved. It follows from the constitutional requirement of parliamentary approval that the Federal Government must inform the Bundestag promptly and in a qualified manner about completed deployments of armed forces. This obligation of formal information concerns the relevant factual and legal considerations the Federal Government’s decision to deploy armed military forces is based on as well as the details and the outcome of this deployment. The Bundestag must be informed of all relevant matters. The amount of detail required depends on the deployment’s military and political importance. Furthermore, the information must be provided as soon as possible. Moreover, the Federal Government must inform Parliament in an effective way. In principle, the information must be provided to the Bundestag as a whole in order to enable all of its members to access the information. As a rule, information must be provided in writing. This requirement ensures that the information provided to the members of the Bundestag is clear, complete and can be easily reproduced.
  10. According to these standards, the evacuation of German citizens from the Libyan town of Nafurah conducted by Bundeswehr soldiers on 26 February 2011 constituted a deployment of armed military forces within the meaning of the constitutional requirement of parliamentary approval. However, the respondent was not obliged to retrospectively seek the Bundestag’s legally non-binding political approval of the completed operation. The Organstreit proceedings at hand do not concern a possible violation of the parliamentary right to promptly receive qualified information on the completed deployment of armed military forces. Even though an application aimed at establishing a violation of competences may also include an application of smaller scope aimed at establishing a violation of a right to information that is linked to the competence in question, the applicant has neither in its application nor in the reasons provided expressly claimed a violation of the Federal Government’s duty to inform. Nor does the application’s true purpose, which must be determined by way of interpretation, give reason to believe that the applicant desired such a violation to be established.

 


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