Editor’s Note: This is the second of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.
The legal reasoning of the German Federal Constitutional Court in the Rescue Operation Pegasus Judgment is quite obviously inspired by the desire to avoid impractical results. It is somewhat in tension with the Court’s insistence on an otherwise joint and unified power of Government and Parliament (“Entscheidungsverbund”; para. 83).
Still, I find the teleological argument fully convincing: On the premise that Parliament has the war power because it is supposed to co-decide in the face of political and military risk but not to assess the lawfulness of the operation, an ex post “ratification” does not make sense.
Importantly, in the different factual situation of an ongoing operation, parliamentary approval would have to be sought, and its refusal would deploy its effect ex nunc and oblige Government to withdraw troops (para. 87).
It is also worth noting, that – like a counter-point to the actual holding against Parliament − the Court by way of dicta highlighted and strengthened parliamentary powers in numerous respects. For example, it clarified that the constitutional rule of parliamentary approval applies to all forms of military operations abroad, including unilateral ones, regardless of the operation’s legal basis under public international law, and independently of whether the troops are authorized to take enforcement action under Chapter VII of the UN Charter (paras 71 and 81). The constitutional rule thus applies also to operations outside a system of collective security (which had been the matter of the previous Constitutional Court decisions). A parliamentary deliberation is even more needed in operations which have not been discussed with allies (para. 69). The legal threshold, i.e. at what point a “deployment” calls for parliamentary involvement, is identical in all cases (para. 77).
The Court also dismissed all additional defences of the Government. It highlighted that the executive branch does not enjoy a margin of purely military and political appreciation of the Executive branch which would be beyond the reach of Parliament and of the Constitutional Court. Such a margin does not exist, not even in situations of emergency (para. 70). The constitutional requirement of parliamentary approval does not depend on the military or political importance of the operation; the deployment may be minimal and it does not need to come close to a real “war” (paras 77–82). Finally, the Court explained for the first time that the key concept of “imminent danger” is a legal concept, too, which is fully reviewable by the Court and does not leave margin for political assessment to the Government (paras 91–98).
The Judgment is also noteworthy for its implicit rejection of the proposal of an ex post evaluation of deployments forwarded in the mentioned parliamentary committee report of June 2015 (“Rühe report”).
Overall, the Judgment is a typical “German style” judgment, with a sophisticated technical legal reasoning employed to justify an eminently commonsensical outcome. It is also balanced and strategic in that, while denying Parliament power in the concrete instance (so that Parliament “lost” this case), in obiter dicta the Court underscored and maybe expanded parliamentary powers on questions which were not at stake in these proceedings.
5. Outlook: war, democracy, and juristocracy
Since the 1990s, there is a trend (at least in Europe) to expand the involvement of Parliaments in decisions to use military force abroad. In Austria, a law to this effect was adopted in 1997. In Germany, the relevant case law began in 1994. A French constitutional amendment of 2008 grants the Assemblée nationale (the Parliament’s first chamber) a power of approval of the decision to use military force. In the UK, the constitutional reforms, initiated in 2006, stopped short of a codification of parliamentary powers in 2013 (English House of Lords’ Constitution Committee, 2nd Report of Session 2013–14, “Constitutional arrangements for the use of armed force” of 24 July 2013).
The reasons for the parliamentarization of war powers are of course heightened democratic sensibilities. Typically, controversies about parliamentary involvement have begun only once the issue presented itself concretely. In the USA, this was the Vietnam War of 1973; in the UK, it was the Kosovo war of 1999. As a rule, most other Western states only use military force abroad as part of collective security measures, and this happened first in the 1990s (if one discounts the 1950 Korean War). The adoption of statutes (Austria) and the emergence of case law (Germany) thus took place in the 1990s, when the Security Council for the first time authorised the use of military force and adopted economic sanctions which had to be monitored by military airplanes.
The need for a parliamentary decision for the deployment of military force is probably felt because ordinary people today are less ready to “sacrifice” young men and women for a public cause than in previous historic periods. The change of attitudes is exacerbated by the fact that military engagement is nowadays more often about “foreign” problems, not directly and immediately threatening the home state. The reluctance towards sacrifice (especially in foreign lands) has been met by some states with the abolishment or suspension of conscription-based armies and their replacement with professional armies (USA after the Vietnam War; Germany in 2011). All in all, the decision to deploy military force is nowadays perceived to be important and costly enough that it warrants public debate, deliberation and support by the most directly accountable body of a democratic state.
In a parliamentary system of government (such as the one that exists in Germany, but also in the UK), in which the Government emerges from the parliamentary elections, is elected by Parliament and accountable to it, the case for a parliamentary decision on the use of military force is strong. In contrast, in a presidential system such as the one that exists in the United States, the normative case for parliamentary involvement is weaker; the President, who decides on use of military force, enjoys independent democratic legitimacy through his election by the people. For example, US Presidents insist that the war power is incumbent by law on the President alone, but after the Vietnam War Presidents have regularly sought authorisation from Congress in order to bolster democratic legitimacy and effectiveness of the proposed action.
When a Parliament is entitled to participate in the decision to use military force, any disregard or neglect of that entitlement is a violation of the law. It is a different matter whether such violations are justiciable, then, and who has standing to file a complaint (members of Parliament (as in Germany), individual soldiers, or even members of the public?). In some if not most states, in order to avoid decisions on issues such as the “political question” doctrine, courts seem prone to resort to judicial techniques, such as the denial of legal standing and the ripeness doctrine. In Germany, however (and in contrast with France, for example), a seemingly complete “judicialisation” has taken place. The question whether German soldiers have been involved in armed activity (the situation which triggers the requirement of parliamentary approval) is “under full scrutiny of the courts”, with no unreviewable margin of appreciation for the Government (BVerfGE 121, 135, para. 82). The same goes for the determination whether there was an imminent danger which allows the Government to proceed without prior parliamentary approval (BVerfG, 23 Sept. 2015, paras 91–94).
The German Constitutional Court’s recent judgment is just one manifestation of the persisting conundrum of domestic democracy and domestic judicial review in an interconnected but multi-state world. From a global democracy perspective, a decision to wage war (or to abstain from it) made by the Executive alone does not seem to be much less democratic than a parliamentary vote on that very matter in one state. A “true” democratic decision would seem to require the formal representation of the views of other states’ inhabitants, notably of affected states (such as Libya or – currently − Syria). This leads to a quest for involvement of supra-national bodies such as the parliamentary assemblies of international organisations ranging from NATO to OSCE. But, even in these forums, the populations endangered by terror and civil strife have no say.
But does it really make sense to ask for global democratic decision-making, for the consent of those who are (transnationally) affected, for decisions on the use of force – and possibly on other policy issues? The answer is a cautious “rather no”, because the difference between making law (e.g. by concluding an international treaty) and deciding to use military force is that the latter decision is not (only) the expression of a political preference and an attempt to regulate, but an enforcement decision which involves extremely high costs, including sacrificing lives. The normative quest for taking into account global, other states’, and foreign citizens’ interests when making such a decision is less persuasive than in simple law/treaty-making. It is intuitively more acceptable that such a decision primarily concerns “us” and not “them”, and that solidarity with “them” and with “their” problems is only limited. It is true, to stick to the example of Syria, that the Syrian population incurs costs and suffers harm through the non-intervention of third states. But this is a different type of harm than the costs incurred by the acting states. Only if the Syrians were in principle entitled to military aid against their brutal and human rights abuser dictator (which is not the case, not even under a strict reading of R2P), a case for their democratic involvement in any decision on military action (or abstention from such action) in the region could be made.
By contrast, I submit that any decision of the polity which bears the costs of intervening with military means should be taken as democratically and openly as possible – on the domestic level. Such a democratisation does not inevitably lead to a judicialisation of war. And even when courts are involved, they can restrain themselves reasonably, as the recent German decision illustrates.
The stalling-effect of asking the citizens (through their Parliaments) about going to war (as predicted by Immanuel Kant in the Perpetual Peace) has materialised for example on 30 August 2013, when the British House of Commons rejected the British Prime Minister’s motion to deploy military force in Syria after a chemical weapons attack. But a “democratic” decision not to intervene and help may ultimately harm strangers – just as a decision to intervene. Can these tragic consequences be somehow “mitigated” or made more tolerable by the fact that these decisions have been taken in domestic democratic procedures? Not really. The most sustainable but at the same time seemingly far-away remedy would be that the conflict-stricken polities transform themselves into democracies.