Abstract
ABSTRACTThe German regime on the use of military force provides an important reference point for legal comparison. In a seminal judgment of 1994, the Constitutional Court identified a constitution-based requirement for each military deployment to have parliamentary approval. The formalities of the involvement of the Bundestag were, in 2005, codified in a statute. Recent German participation in coalitions of the willing have raised the question whether such operations are still covered by the constitutional bases, and participation in anti-Islamic State action in Syria is currently under review by the Constitutional Court. The article concludes that the tension between the need to effectively integrate military forces into multinational operations, democratic accountability, and judicial oversight has been uniquely resolved in the German constitution and statutory and case law. It illustrates the feasibility of upholding standards of democracy and the rule of law in foreign and military affairs.
Highlights
The German regime on the use of military force provides an important reference point for legal comparison
The article concludes that the tension between the need to effectively integrate military forces into multinational operations, democratic accountability, and judicial oversight has been uniquely resolved in the German constitution and statutory and case law
In 1956, it amended its constitution, the Basic Law of 1949, in order to allow the state to contribute to the integrated forces of NATO for defending Western Europe against a possible communist aggression
Summary
German history has produced a unique and complicated constitutional regime on the deployment of the German military abroad. The end of the global East–West split went hand in hand with German reunification and the formal international recognition of the state’s national sovereignty in 1990,1 enabling the UN Security Council to overcome its prior paralysis and to authorise military action against threats to the peace This contributed to a ‘fundamental reorientation’: both from the side of Germany’s allies and in some quarters from inside the country, the expectation arose that Germany would actively engage its military towards achieving world peace and security. It remained impossible to amend formally the constitutional text so as to explicitly allow for and regulate such military action In this political deadlock, the German constitutional court issued in 1994 a truly law-making judgment.. Nationen (Springer-Verlag, 1990) 29. 6BVerfGE [Decisions of the Federal Constitutional Court] 90, 286, judgment of 12 July 1994 – 2 BvE 3/92 –, – 2 BvE 5/93 –, – 2 BvE 7/93 –, – 2 BvE 8/93 –
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