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Germany: Court Clarifies Scope of Parliamentary Right to Approve Deployment of Troops

(Oct. 20, 2015) On September 23, 2015, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) ruled that the German government does not need to seek retroactive parliamentary approval for the deployment of troops in cases of imminent danger. The Court reiterated its view that the German government is under a general obligation to seek parliamentary approval from the German Parliament (Deutscher Bundestag) before every deployment of troops. An exception may only be granted in cases of imminent danger, in which the government is obliged to seek approval as soon as possible as to whether to continue the operation. In the event that the deployment has already been concluded, the Parliament has a right to be promptly and comprehensively informed, but no retroactive approval is necessary. (BVerfG, 2 BvE 6/11, Sept. 23, 2015, BVerfG website (in German); Press Release No. 71/2015, BVerfG, On the Scope of the Requirement of Parliamentary Approval for Deployments of the Armed Forces in Cases of Imminent Danger (Sept. 23, 2015).)

Procedural Background and Facts

The parliamentary group Alliance 90/The Greens (Bündnis 90/Die Grünen) brought the case as a dispute between federal constitutional organs (Organstreit), a proceeding that is codified in article 93 of the German Basic Law, in conjunction with sections 63 et seq. of the Federal Constitutional Court Act. (Basic Law for the Federal Republic of Germany [Basic Law] (May 23, 1949), BUNDESGESETZBLATT [BGBl.] I at 1, as amended, GERMAN LAWS ONLINE (unofficial English translation); Bundesverfassungsgerichtsgesetz [BVerfGG] [Federal Constitutional Court Act] (Aug. 11, 1993), BGBl. I at 1473, as amended; GERMAN LAWS ONLINE.) An application in an Organstreit proceeding may be filed if supreme federal organs or other actors vested with equivalent rights of their own by the Basic Law or by the rules of procedure disagree on the scope of their respective rights and obligations under the Basic Law. (Basic Law, art. 93, ¶ 1, no. 1.)

The Organstreit is a way to enforce the separation of powers. Parliamentary groups may assert their own intra-parliamentary rights or the rights of the German Parliament as a whole. (Organstreit Proceedings, BVerfG (last visited Oct. 14, 2015).)

The Case at Hand

Starting in February 2011, the conflict in Libya between the Libyan government and its opponents had escalated into an armed struggle against the regime of Muammar al-Gaddafi. The eastern part of Libya, in particular the city Benghazi, were at the heart of the violent clashes. (BVerfG, 2 BvE 6/11, ¶ 2.) The German Foreign Ministry, together with the German Ministry of Defense, held daily meetings and started preparing for eventual diplomatic and military evacuations of German nationals (Operation “Pegasus”). On February 24, 2011, the German Foreign Ministry and the German Ministry of Defense decided to evacuate the employees of German companies who were stationed in Nafurah, close to an oil field, 400 kilometers south of Benghazi. The next day, the Foreign Minister informed the leader of the parliamentary groups in the German Parliament via phone about the planned operation, and 132 people were evacuated from Nafurah on February 26, 2011, and flown to Chania, Crete. Armed soldiers were present on the planes used for evacuation, and the planes were outfitted with equipment for passive self-protection against radar detection and with anti-aircraft missiles. The evacuation was carried out without problems, and no further evacuation operations were required of the German troops. (Id. ¶¶ 2-14.)

The parliamentary group Alliance 90/The Greens alleged that the German government had infringed on the rights of the German Parliament as a whole by not seeking retroactive approval for the use of the German military to evacuate the German nationals from Libya. The German government opined that no parliamentary approval was needed, because the operation had a humanitarian purpose and no involvement of German troops in armed hostilities was to be expected. (Id. ¶¶ 16, 18, & 19.)

Decision

The Federal Constitutional Court denied the application of the parliamentary group Alliance 90/the Greens. It held that even though the evacuation of German nationals constituted a deployment of troops, the federal government was not obliged to seek retroactive parliamentary approval and therefore did not violate the right of the German Parliament to participate in the decisionmaking on the use of troops. (Id. ¶ 65.)

The Court reiterated its long-established jurisprudence that in general, prior parliamentary approval must be sought before every deployment of German troops abroad. (Id. ¶¶ 67, 68.) According to the Court, a deployment does not need to surpass a certain threshold or be conducted within a system of collective security to trigger the right of the German Parliament to participate in the decisionmaking of the German government. (Id. ¶ 69.) The Court defined “deployment of troops” as cases in which there is a reasonable expectation that German soldiers will become involved in armed hostilities. The authorization for the soldiers to use armed force can serve as an indicator for the determination. (Id. ¶ 72.) However, such an authorization by itself does not automatically trigger the right of participation of the German Parliament, in the opinion of the Court. If the use of armed force is limited to self-defense and the deployment is of a non-military nature, no parliamentary approval is needed. (Id. ¶ 76.)

The Court stated that as an exception to the rule, in cases of imminent danger, the German government may forego the parliamentary approval process momentarily and make a decision about the deployment of German troops on its own. A decision of the German Parliament has to be sought as soon as possible, and the soldiers have to be called back if approval of the deployment is denied. (Id. ¶ 83.) According to the Court, a decision to deny the approval only affects the future constitutionality of the deployment and does not render the deployment retroactively unlawful. (Id. ¶ 87.) Whether or not a case of “imminent danger” existed is not a political question and is subject to full judicial review. (Id. ¶ 94.) The Federal Constitutional Court concluded that, as the deployment in question had already been finished, retroactive parliamentary approval was superfluous. Furthermore, it held that it was not up to the German Parliament to judge the constitutionality of executive actions; that competency was reserved to the Court itself upon application from a party. (Id. ¶ 99.)

In conclusion, the Court stated that in cases of completed deployments, the German government was nevertheless under an obligation to inform the German Parliament promptly and comprehensively, in writing, about the facts and legal considerations that led to the deployment. (Id. ¶¶ 102-104.)