Editor’s Note: This is the first of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.
In the middle of the civil war in Libya in 2011 (before the start of the UN authorised military operation), the German Chancellor, following the proposals made by the Ministers of Foreign Affairs and of Defence, decided to evacuate 132 persons (German and other civilians) from an industrial camp in Nafurah, 400 km south of Benghazi. The operation – dubbed “Operation Pegasus” – succeeded without any combat action.
Subsequently, a group of members of the German Bundestag seized the German Federal Constitutional Court and argued that the constitutional and statutory division of powers among the Executive and the Legislative branch when it comes to deciding about military action not only demands parliamentary ex ante approval but also, in those urgent cases where the Executive is allowed to decide on its own, requires a formal ex post approval. This claim was rejected by the Court (judgment of the Second Senate, 23 September 2015, No. 2 BvE 6/11).
1. The legal framework and background
Germany is probably the state with the most detailed legal regime on parliamentary involvement in decisions on the use of military force abroad. The allocation and division of the “war powers” in constitutional democracies between the Executive branch and Parliament reflects a tension between the need for swiftness, expertise, external unity, steadiness, and secrecy on the one hand, and a desire for democracy, accountability, and transparency on the other hand. In a simplified way, one could call this a tension between effectiveness and legitimacy. In state practice, the “war power” has traditionally been largely reserved to the executive branch. But concerns of democratic accountability and publicity have continuously gained weight, and have led – in democratic states – to an involvement of Parliaments (being the bodies enjoying the strongest democratic legitimacy) in that decision. Constitutional law is the basis of such parliamentary powers, for example, in the United States (Art. I sec. 8 of the US Constitution); in Art. 35(3) of the French Constitution, as inserted in 2008, and in Art. 102 lit. d) of the Russian Constitution.
The German Constitution (Basic Law (Grundgesetz, GG)) contains two pertinent provisions, Art. 24(2) and Art. 87a GG, which do not mention Parliament. But a constitutional requirement to seek authorisation of the first chamber, the Bundestag, was defined by the Federal Constitutional Court’s “Out of area” Judgment (BVerfGE 90, 286 of 12 July 1994), and in a second Judgment (“AWACS” − BVerfGE 121, 135, of 7 May 2008).
The German Statute on Parliamentary Participation (Parlamentsbeteiligungsgesetz of 18 March 2005, BGBl. 2005 I, 775) is seen as codifying the prior constitutional case law. This means that the parliamentary “prerogative” is considered to flow directly from the Basic Law. And the constitution is what the Judges say it is.
This Statute requires approval of the first chamber (Bundestag) in form of a simple parliamentary resolution, adopted by simple majority for any “deployment of German armed forces outside the scope of the Basic Law” (Paragraph 1(2) Parlamentsbeteiligungsgesetz). Paragraph 2(1) of the Statute explains in more detail what “deployment of armed forces” means: “A deployment of armed forces is present when soldiers of the German army are involved in armed undertakings or when the involvement in an armed undertaking is to be expected.” In the AWACS decision, the German Federal Court specified that the expectation of involvement must be “concrete”. Paragraph 2(2) of the Parlamentsbeteiligungsgesetz defines which activities do not qualify as deployment. These are: (1) preparatory measures and planning; and (2) humanitarian aid with arms carried only for self-defence if there is no (concrete) expectation of involvement in armed undertakings.
As in other states, the legal regime on parliamentary involvement foresees special procedures for situations of urgency or emergency. Under Paragraph 5 of the Parlamentsbeteiligungsgesetz, Government may decide without Parliament in cases of imminent danger (“Gefahr im Verzug”), but needs to get approval later. Approval must be sought “promptly” (“unverzüglich”).
Finally, there is a simplified procedure for “deployments of low intensity and scale” which requires involvement of two parliamentary committees – the Foreign Affairs Committee and the Defence Committee (Paragraph 4 of the Parlamentsbeteiligungsgesetz).
In 2014, a parliamentary committee was set up to explore amendments to the pertinent Statute in order to flexibilize the procedures. But the resulting Rühe report of 16 June 2015 (BT Drs. 18-5000) was rather in favour of strengthening parliamentary powers.
2. Facts and proceedings
For safety reasons, the evacuation of February 2011 was performed with military means and under military protection. Because the area in the Eastern part of Libya was already in the hands of the opposition’s armed forces with whom no diplomatic contacts existed, 22 Germans and 110 citizens of other states were flown out in two military transportation airplanes (Transall C-160), staffed with 21 soldiers, equipped with pistols and machine guns.
The command to start the operation was given by the Minister of Defence on the evening of 25 February 2011. The Minister of Foreign Affairs had, during the day, informed by telephone the chairpersons of the political factions sitting in the Bundestag, asking them to keep strict confidentiality. On the next evening, he again informed those MPs about the successful outcome of the operation.
Because no armed force was actually used, the public international law question whether Blitz-type military operations to rescue nationals form an exception to the general prohibition of the use of force under Article 2(4) of the UN Charter (maybe as a type of self-defence) did not arise.
In March 2011, some members of the Bundestag unsuccessfully tried to bring about a formal parliamentary resolution in which the Chamber would have formally requested the Government to seek ex post authorisation for the military operation. The Bundestag did not adopt such a resolution.
In August 2011, the political group “Bündnis 90/Die Grünen” then seized the Constitutional Court in a judicial procedure by which a specific number of members of the Parliament’s First Chamber (the Bundestag) can claim infringements of the legal status of that organ (“Organstreit” under Art. 93 No. 1 Basic Law; § 13 and §§ 63 et seq. of the Law on the Federal Constitutional Court). The rationale of this proceeding is to protect the minority in Parliament by allowing that minority to vindicate parliamentary powers against the Executive branch, even when the majority in Parliament does not want to invoke these powers.
The German Federal Constitutional Court ruled that the German Constitution, the Basic Law (Grundgesetz), does not require that Parliament gives an ex post assent to a military rescue operation which is already terminated. However, the Executive branch must swiftly and fully inform Parliament.
The technical explanation for this eminently practical and commonsensical holding is that the Government’s lawful use of its urgency powers, while interfering with the prerogative of Parliament, has the same legal effect as a joint deployment decision of both institutions taken in normal situations. The governmental decision does not need a retroactive authorisation by Parliament but can stand alone.
While Parliament must be immediately informed, this type of involvement is no “authorisation” with any concrete legal effect. Any other understanding would lead to the legal consequence that – if Parliament ex post refuses to grant authorisation for such an urgent operation − the deployment would have to be qualified as having been unlawful from the beginning (para. 87). And, because this cannot be, the Court construes the governmental power to make urgent decisions as an (“auxiliary”) stand-alone power (para. 88) which “modifies” the principle of parliamentary co-decision in situations where – for purely factual reasons – Parliament cannot exercise its powers (para. 100).
The rationale of Parliament involvement as identified by the Court points against an ex post approval of operations which are already finished. The purpose of the parliamentary prerogative is that Parliament decides jointly with the Executive, and assumes co-responsibility. Once the situation is over, this function cannot be fulfilled anymore (para. 99). By contrast, the purpose of parliamentary approval is not to assess authoritatively the legality of an operation; this is incumbent upon the Court (para. 99). Political control by Parliament can be exercised through other types of instruments, e.g. parliamentary resolutions or even a motion of censure against Government (para. 101).
In order to allow Parliament to exercise these forms of political control, it is the duty of the Government to inform it in detail about the military operation. Parliament enjoys an “entitlement to information” (para. 104).
Applying these principles as a benchmark, the Court found that the rescue operation in Nafulah was indeed a “deployment” in the sense of the Basic Law and the relevant Act of 2005. Despite its minimal character, the operation held the “potential for military entanglement” (para. 114). The non-occurrence of actual combat activity did not alter the fact that there had been indeed a concrete expectation that German soldiers would be − during the evacuation − involved in an armed conflict (paras 105−117).
Normally, this situation would have triggered the Government’s obligation to seek parliamentary approval. However, it was undisputed that there was in fact a situation of imminent danger which entitled the Government to decide on deployment without waiting for the Bundestag.
The legal question here was only whether, when the parliamentary decision on the concrete deployment is no longer possible for factual reasons, the constitutional parliamentary prerogative requires the Government to seek ex post facto approval by Parliament. And this the Court answered in the negative: there is no such obligation. The Government’s refusal to seek ex post authorisation by the Bundestag was thus not unconstitutional.
(And because the MPs had not claimed that Government had, in the case of Nafurah, not properly informed Parliament about the operation, the legal details of the governmental obligation of “immediate and comprehensive information” to Parliament was not examined on substance by the Court).