The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 2)

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Editor’s Note:  This is the second of two posts discussing the ‘Rescue Operation Pegasus’ Judgment of the German Federal Constitutional Court.

4. Assessment

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.

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Paulina Starski says

October 22, 2015

Just to add some thoughts on Anne Peters’ excellent and comprehensive analysis of the Federal Constitutional Court’s recent judgment on “Rescue Operation Pegasus”:

1. By clarifying that the government is not obliged to seek an ex post approval for completed armed operations which were ordered by the government in view of an “imminent threat” the Court stressed the self-responsibility of the “Bundestag” as the main legislative body. The parliament is free to direct questions to the government, to pass resolutions on governmental conduct or in extreme cases even to express its lack of confidence in the chancellor thereby bringing the whole government to fall (Art. 67 GG). It will, however, only be able to exercise its control instruments effectively if it is well informed in the aftermath of external missions. This makes the “parliamentary entitlement” to information that the Federal Constitutional Court underlines (para. 102) so crucial. Unfortunately, it did not have to examine whether the government fulfilled its obligation to inform in the case at hand (para. 119 et seq.). I expect that the issue of information will likely become the essential object of future disputes between parliament and government in light of emergency operations.

2. And two sidenotes on the “parliamentarization” of the deployment of armed forces in the German constitutional setting:

First of all, it is important to pay attention to the peculiarities of the German constitutional debate: It has been disputed for years whether, and if so, on which constitutional basis forces of the German Federal Army could be deployed outside of German territory at all. The Basic Law’s ambiguousness in that regard obviously roots in history and Germany’s role as aggressor in two world wars. Art. 87a(1) GG allows the establishment of an army only for purposes of defence, its para. 2 limits an employment of armed forces beyond that to cases expressly permitted by the constitution. However, Art. 24(2) GG allows the federation to enter into systems of mutual collective security like the NATO or the United Nations. The Federal Constitutional Court made clear in its “Out of Area” Judgment (BVerfGE 90, 286) that Art. 24 (2) not only legitimizes membership in but also military operations outside German territory within such collective security systems. Art. 87a(1) does not exclude this option. Being highly political in nature accession treaties to systems of mutual collective security have to be approved by the legislative bodies according to Art. 59(2) GG. However, NATO operations have departed in the course of time from its original objective – namely the establishment of a collective self-defence mechanism – and extended to peace enforcement in a broader sense. Unsurprisingly, it became questionable whether the initial approval of NATO’s founding treaty by the German parliament covered the participation of German armed forces in such extended activities or whether the North Atlantic Treaty was actually amended and required a new parliamentary approval. Since doubts remained the Federal Constitutional Court came up with a compromise: It regarded the dynamic evolvement of NATO as covered by its founding treaty and its initial approval by the German legislative bodies. This led to a shift of competences from parliament to government. The Court counterbalanced this shift by establishing the requirement to seek prior parliamentary approval before specific deployment decisions. The notion of the "Bundeswehr" as “army of the parliament” (“Parlamentsheer”) was hence a strategic move to compensate the lack of parliamentary participation in the dynamic development within collective security systems. The constellation at hand is different, since the evacuation in Libya was merely a unilateral operation outside of international security systems. But still it is crucial to keep in mind that the process of “parliamentarization” of the deployment of armed forces in Germany started with a changed self-conception of organizations like NATO and an increased engagement of Germany within UN mandated peace missions.

Secondly, the deployment of armed forces is potentially connected with sacrificing lives. The trend to “parliamentarization” is not only a sign for the public reluctance to expose German soldiers to such a danger, but it also emanates from the very logic of basic rights. State acts which interfere with basic rights require a justifying legislative basis. The more a state action affects a protected right, the more it has to be the legislator as the representative of the people, the ultimate sovereign, who decides to act and determines the details of an action.

Joachim Sanden says

November 15, 2015

NEO burning Barfura? The results of the Pegasus judgment of the German Federal Constitutional Court seen from the international law perspective

In her comment, Anne Peters (The (Non-)Judicialisation of War: German Constitutional Court Judgment on Rescue Operation Pegasus in Libya of 23 September 2015 (Part 2), Blog of the European Journal of International Law, 22 October 2015, stated that „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.“
Many observers may agree with this position. However, what would have been the consequences of a divergent judgment by the German Federal Constitutional Court (FCC)? Are the results of the FCC´s judgment practical (acceptable)?
• If the FCC had underlined a duty for a parliamentary agreement before the non-combatant evacuation operation (NEO), Germany would have been shifted to inactivity: The benefit of commando actions to rescue own citizens is worthless if long-lasting procedures take place before the action starts.
• Regarding the alternative that the FCCC would have given the directive that a parliamentary agreement is required after the action, the discretion of the government would be in fact eliminated. The risk that the Parliament denies the approval is significant enough that the government would probably try to avoid the situation.
• If the FCC had demanded a definite consensus with the state (No. 110, 114), in which the military action should take place (“intervention by invitation”), such a rescue action would have been hindered as well. In the Pegasus case, there was more or less a passive consent by Libyan governmental representatives. This consent in a state which is broken down in a civil war seems to be sufficient to take justification for violating sovereignty for granted, see the International Court of Justice, Reports of Judgments, Advisory opinions and orders case concerning armed activities on the territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005,, No. 95. Therefore, the FCC was not urged to discuss the complex question if the forceful self-help to protect its own citizens abroad can be justified with a wide understanding of self-defense within the meaning of Article 51 UN-Charta , a customary law exception to the prohibition of force or a restriction of the prohibition of force caused by the humanitarian purpose (see Dieter Wiefelspütz, Die Bundeswehr in Libyen – Operation Pegasus aus Sicht des Völker- und Staatsrechts, Humanitäres Völkerrecht – Informationsschriften / Journal of International Law of Peace and Armed Conflict 2/2012, 56; Torsten Stein/Christian von Butlar, Völkerrecht, 13nd. ed., 2012, Munich: Vahlen, No. 805; Matthias Herdegen, Völkerrecht, 2015, Munich: C.H. Beck, § 34, 31).
The second topic we have to analyse is if the German judgment gives now the robust mandate for further military rescue missions, the German Armed Forces need. The long-lasting discussion on the legitimacy of such activities (see Eric Yong Joong Lee, Military rescue operation for the hostages taken by Somali pirates: Was the Korean navy's "daybreak in the Gulf of Aden" legitimate? Journal of East Asia and International Law 5 (2012), 37 – 60; Natalino Ronzitti, Rescuing nationals abroad through military coercion and intervention on grounds of humanity, Dordrecht: Nijhoff 1985) can now refer to another central judgement of a national constitutional court, clearing the way. However, some questions are remaining: In the Pegasus case, different from the famous historical case of rescuing British paras in 1944, the activity was coined to save (among others) German citizens (civilians). In Nafura/East Libya, two transport airplanes of the German Airforce rescued 2011 almost 132 persons, among others 22 German nationals. In so far, the situation was the same like in the first rescue operation, the German Armed Forces implemented in 1997 in Tirana (Operation Libelle). Can the German Army feel free to join in or to start such a rescue action if no Germans are in the group of endangered persons or maybe none? What is the correct solution if it is not clear which nationality the endangered persons do have? Is it sufficient to support this rescue operation in furtherance of German national security interests? The FCC did not tackle the question. We should see this in the context of “multilateral composite military capabilities”, where a lead country needs the support of an allied partner country (EU, NATO etc.) to act (e.g. transport aircraft capacity or air surveillance). As it is stressed in the so-called Rühe report of the German Parliament (Unterrichtung durch die Kommission zur Überprüfung und Sicherung der Parlamentsrechte bei der Mandatierung von Auslandseinsätzen der Bundeswehr − Abschlussbericht der Kommission, Printed Matter 18/5000 of 16.06.2015) that today this capability is one of the essential circumstances to understand modern defence. Integration into the alliance (Grundsatz der Bündnisintegration) is of eminent relevance (see Robert A. P. Glawe, Quo vadis, Bündnispartner Deutschland?, NVwZ 2011, 1051, 1052).
We should realise that the Pegasus judgement is obviously important for another reason: The “evacuation in Libya was merely a unilateral operation outside of international security systems”, Paulina Starski pointed out in her comment for her MPI-colleague ( The FCC accepts that engagement without further consideration. In previous judgments, the FCC has always underlined that military activities can be realised in systems of collective security only (see Manuel Brunner, ZRP 2011, 207). This new broader understanding gives power to the German government to act in single cases efficiently when citizens are endangered somewhere in the world. Nevertheless, the FCC did not take the chance to declare − maybe in an obiter dictum − his opinion on the recent debate on “responsibility to protect” (R2P) (see in general Louise Riis Andersen, Responsibility to Protect, in: Paul Jackson, Handbook of International Security and Development, Cheltenham: Edward Elgar 2015, 370 ff.). E.g. for Libya, the UN Security Council has demanded in the resolution 1973 for “all necessary measures to protect civilians and civilian populated areas under threat of attack”. In due course of the not unanimously concluded NATO-led operation in Libya 2011 (the former liberal German Foreign Minister Guido Westerwelle voted abstention concerning the no-fly zone), the message given now by the German FCC will be heard clearly by the partners of the alliance.