Memorandum by Eileen Denza, University
College London
General Criteria
1. Alternative constitutional controls on
deployment of United Kingdom armed forces or on the use of military
force should be assessed primarily in terms of how they might
better contribute to the objectives of modern British foreign
policy. The three fundamental objectives of the foreign policy
of a modern State are, first, the defence of the physical and
political integrity of the State; secondly, spreading more widely
the political and other fundamental values of the State, and thirdly,
the promotion or defence of a stable world order. There is some
overlap between these objectives, particularly the second and
third. More rigid domestic legal controls on the deployment or
use of military resources are unlikely to contribute to the first
of the three objectives. The greater degree of openness and accountability
which they would entail might however be advantageous in terms
of the second and third.
Practice of Other States
2. The constitutional constraints and practice
of other democratic States are relevant and useful, but they must
be evaluated against the wider historical, constitutional and
political background within each State. Many western democracies
have national constraints on deployment of their military forces
abroad beyond those imposed by international law—for example
Germany, Japan, Denmark, Austria, Ireland, Sweden and Finland.
These constraints derive for the most part from historical experiences
not shared by the United Kingdom.
3. By way of illustration both of the historical
background to constitutional controls imposed in other democratic
States and of the legal difficulties which they entail, I am annexing
a Note on parliamentary control over the armed forces in Germany
which was prepared by Aurel Sari, one of my doctoral students.
German constitutional law requires the advance approval of the
Lower House of Parliament (the Bundestag) for deployment of German
armed forces abroad where use of military force is likely. The
Federal Constitution was adopted in 1949, shortly after the end
of the Second World War and at a time when there were no German
armed forces so that West Germany was dependent for its military
security on its foreign Allies. Given the variety of circumstances
in which armed forces of a powerful Western State may nowadays
be deployed abroad, the requirement for advance approval has given
rise to a number of areas of legal uncertainty, some of them clarified
by the Federal Constitutional Court. Although Parliamentary control
is clearly perceived in Germany as reflecting the democratic nature
of the State's potential use of military force, it has also been
perceived abroad—particularly within the framework of the
recent development of European Union defence policy—as a
serious handicap to Germany's powers of independent action.
4. Under the Constitution of the United
States of America Congress is given the right to declare war,
to raise and support armies and to provide and maintain a navy,
while the President is appointed Commander-in-Chief of the armed
forces. Case law makes clear that Congress does not have an exclusive
right to determine whether or not the United States will embark
on armed conflict, and the form of any approval of the use of
military force is left to Congress. The War Powers Resolution
of 1973 (Public Law 93-148) imposes on the President a requirement
to consult with Congress prior to the start of, and throughout
the duration of hostilities. The Resolution was adopted over the
veto of President Nixon and there are continuing doubts as to
its constitutionality. On every occasion since the adoption of
the Resolution the President has requested and received authorisation
(either advance or retrospective) for the use of force and has
made reports "consistent with the War Powers Resolution".
The original purpose of the Resolution was to check the power
of the President to commit the United States to military action,
but in practice deference of Congress to the Executive has made
the control of limited value.
5. In the two most recent cases the congressional
authority granted to the President has been very wide. One week
after the attacks of September 11, 2001, Congress passed a Joint
Resolution (Authorization for Use of Military Force, 115 Stat.
224) which authorized the President to "use all necessary
and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided
the terrorist attacks" or "harboured such organizations
or persons in order to prevent any future acts of international
terrorism against the United States by such nations, organizations
or persons". The President relied on this authority to embark
on military action against al Qaeda and against the Taliban regime.
In October 2002 Congress adopted a Joint Resolution to Authorize
the Use of United States Armed Forces Against Iraq. This set out
the political, diplomatic and legal background in some detail
and authorized the use of US Armed Forces for two purposes—to
defend the national security of the United States and to enforce
all relevant United Nations Security Council Resolutions regarding
Iraq. It imposed requirements for the President to report back
to Congress. A case was brought before a US federal district court
arguing that Congress had unconstitutionally delegated to the
President the power to use force against Iraq, but the court declined
to intervene and dismissed the case in February 2003, one month
before military operations against Iraq began.
Advance or Immediate Approval by Parliament
6. There are strong arguments against imposing
a legal requirement for UK Parliamentary authorisation in advance
of or immediately following overseas deployment of military forces
or authorisation of force. The existing system of ministerial
accountability permits immediacy of response by Parliament to
situations which are complex, unpredictable and highly varied
in their nature. Devising rules for Parliamentary control would
give rise to difficulty in distinguishing between a unilateral
decision to deploy or use UK military forces, the provision of
support facilities such as military bases to another friendly
State intending to deploy or use its own forces, deployment of
force within the framework of the Common Foreign and Security
Policy of the European Union or under United Nations authority,
and the assumption of commitments to another States or States
requiring immediate response (such as the commitment under Article
5 of the North Atlantic Charter). To give Parliament control over
a decision to deploy military force or authorise the use of force
abroad would raise the question of whether there should also be
parliamentary control over a decision by the Government not
to deploy or to use military force. Such decisions may also be
controversial both in political and in legal terms.
7. To obtain from Parliament a meaningful
consent to the deployment or use of military forces by the Government
would pose immense problems in terms of the supply of information
and analysis and the system of whipping of the votes of Party
members. A situation which leads to a decision by Ministers to
deploy or use forces will almost always have a long and complex
political, diplomatic and legal background. Many of the relevant
documents will be protected from disclosure by international rules
of law and practice requiring confidentiality of diplomatic negotiations
and secrecy of military information—which cannot be disregarded
on a unilateral basis by the United Kingdom. The practical need
and the legal justification for any use of force, and the degree
of force which may be regarded as necessary and proportionate
will have been under continuous assessment by Ministers and by
political, diplomatic, military and legal experts within Government
for some time against a changing factual background. It would
not normally be possible to provide sufficient information as
well as legal and military analysis to allow individual Members
of Parliament to exercise independent critical judgment within
the sort of time-frame which is suggested. If the Government of
the day did not provide a free vote on the question, any resolution
adopted by Parliament would fail to provide additional political
or moral authority.
8. The decision to authorise the deployment
of military forces authorised to use force abroad is essentially
an executive one. It must be taken in a broad context of national
constraints and objectives and in a long-term perspective of the
national interest. While the government which has taken it should
be required to explain and justify its decision to Parliament
and to the people, the decision itself should not be dictated
by the immediate views and reactions of Parliament or of the people.
As in other areas of foreign policy there may be a need to educate
and sometimes to resist popular feelings.
Provision of Legal Justification to Parliament
9. A much stronger case can be made for
requiring the Government formally to explain the legal justification
(including questions of necessity and proportionality) for deployment
of armed forces authorised to use force outside the United Kingdom.
A framework could be provided by statute under which the Government
would outline the factual and diplomatic background, its objective
in authorising force and the grounds on which it is satisfied
that its actions are justified under international law. Such a
document would be laid formally before Parliament and would necessarily
have been approved by the Law Officers—but would not
contain the totality of the advice tendered by the Law Officers
which should remain confidential. The Government already supplies
under short time constraints memoranda to Parliament on European
Union documents and on treaties subject to United Kingdom ratification,
as well as oral and written statements involving questions of
international law, so such a framework would merely extend and
formalise what has already become established practice. Following
the decision to use force in Iraq in March 2003, the Government
explained its position publicly through the answer of the Attorney-General
to a question on the legality of that decision in the House of
Lords, together with a Paper by the Foreign and Commonwealth Office
setting out the justification for the use of force in greater
detail which was sent to the Chairman of the House of Commons
Foreign Affairs Committee.
10. The provision of a formal legal justification
for any decision to authorise the use of military force abroad
would offer a number of advantages in the longer term. It would
ensure that the Government as a whole were clear about the legal
basis for the decision. It would help to ensure consistency in
the deployment of legal doctrines of international law. It would
of course open the justification to political debate and perhaps
to legal challenge, but it should help to ensure that assessment
of international legality took place against the situation as
known and explained at the time of the original decision rather
than against the background of later discoveries and of later
events. Much of the public discussion relating to the use of force
in controversial circumstances is carried out against the background
of facts and consequences which were not and could not have been
known when the original decision was taken. It is also coloured
by perception of whether the military operation was successful
in achieving its objective and by whether it was carried out in
a proportionate manner and in accordance with the rules of international
law relating to the conduct of armed conflict. All of these are
of course legitimate subjects for public and parliamentary scrutiny,
but they should be separated from the issue of the justification
for the original authorisation by the Government to use military
force.
11. Such a framework if implemented in good
faith would help to persuade the British public and international
opinion that the decision to use military force abroad had been
taken in good faith and with the greatest attention to international
law, that the use of force was necessary and proportionate and
that the operation would be explained and defended with the greatest
possible degree of transparency. Such confidence would not only
assist the actual conduct of any operation but would in the longer
term be advantageous in terms of the spread of fundamental British
values and in terms of promotion of a more stable world order.
Judicial Review
12. If a duty for the Government to make
a formal declaration of legal justification were accepted, careful
thought would have to be given to the role of United Kingdom courts.
Any declaration would consist of a mixture of facts (some of them
peculiarly within the knowledge of the Secretaries of State for
Foreign and Commonwealth Affairs and for Defence), analysis and
law. While it has been usual, and is set out in many statutes
relevant to the conduct of foreign affairs, that the Secretary
of State may issue certificates on specific matters of fact peculiarly
within his knowledge, and such certificates are conclusive in
legal proceedings, the declaration would not be limited to questions
of fact and it would not be appropriate for its terms to be conclusive.
In the United Kingdom questions of law are not addressed in any
certificate issued to a court or to parties to legal proceedings,
and the court must decide questions of law—whether UK law
or international law—for itself.
13. One precedent which could be useful
in considering whether the courts would be entitled to review
the opinion of the Secretary of State on material questions of
international law is section 2 of the Diplomatic and Consular
Premises Act 1987 which provides that the Secretary of State may
exercise the power to terminate acceptance of land as diplomatic
or consular premises only "if he is satisfied that to do
so is permissible under international law." A specific exercise
of this power was challenged in the courts in the case R. v.
Secretary of State for Foreign and Commonwealth Affairs ex parte
Samuel[1]
The Court of Appeal held that the decision of the Secretary of
State would be reviewed only if it was unreasonable or taken in
bad faith. The grounds for the decision were fully explained in
a statement to the Court on behalf of the Foreign and Commonwealth
Office, and the Court concluded that the decision was lawful and
effective.
14. For wider constitutional reasons it
would be inappropriate for any statutory rules to displace the
doctrine of non-justiciability or judicial restraint whereby in
rare cases United Kingdom courts decline to adjudicate on an issue
within their jurisdiction on the grounds that they would be "in
a judicial no-man's land",[2]
or "entering a field in which we are simply not competent
to adjudicate".[3]
United Kingdom courts will determine an issue of customary international
law in many cases where it is relevant to a question of domestic
law before them. [4]But
they are clear that they are not an international court. The doctrine
has been very sparingly applied and attempts to extend it have
been resisted. It rests less on deference to the executive on
matters of foreign policy and the need for the State to speak
on international questions with a single voice than on the view
that issues which are the subject of international dispute between
sovereign States—some or all of whom may not be before the
court—should be resolved at an international level and not
by a national court.
15. The way in which United Kingdom courts
are prepared to scrutinise the lawfulness of the possible or actual
use of force by the United Kingdom Government under the limits
of the doctrine of non-justiciability is well illustrated by the
CND Case. [5]The
Campaign for Nuclear Disarmament asked the Court for a Declaration
that action against Iraq would, in the absence of a further UN
Resolution, be unlawful under customary international law. The
Court held for a variety of reasons that they could not address
the merits of the arguments under international law, but of particular
relevance to the present context is the view expressed by Simon
Brown LJ (as he then was) that an assumption of competence by
a UK court to determine this issue would be regarded in other
States as "an exorbitant arrogation of adjudicative power".
16. It is submitted that to disapply by
statute the doctrine of judicial restraint so as in effect to
confer on UK courts a power to determine what are likely to be
controversial and difficult questions of international law would
be to disregard the question of what is the most appropriate forum
for such questions. While there are strong arguments for questions
of the legality of the use of force being determined more widely
by the International Court of Justice (and indeed for a wider
jurisdiction by the European Court of Justice over the Common
Foreign and Security Policy of the European Union, which increasingly
forms the basis for military operations), the discretion exercised
by UK courts should be left unaltered by any possible rules to
control the exercise of prerogative powers regarding the use of
military force.
Summary
Any parliamentary controls on deployment of
UK military forces abroad or on the use of military force should
be assessed in terms of their contribution to the objectives of
British foreign policy.
The constraints imposed in other democratic
States are relevant and instructive, but must be evaluated against
the constitutional background in each State.
A requirement for advance or immediate approval
by the UK Parliament would give rise to major problems of determining
when it applied, of supplying Parliament with adequate information
and of deciding whether there should be a free vote. The decision
to deploy forces abroad or to authorise the use of force is an
executive one to be taken in a long-term perspective of the national
interest.
A requirement on the Government formally to
explain the background, objectives and legal justification for
any deployment of forces authorised to use force would on the
other hand offer longer term advantages in terms of consistency
and transparency.
If provision were made for a formal declaration
by the Government of legal justification, judicial review should
not be excluded, but the courts should be left to apply the common
law doctrine of non-justiciability or judicial restraint. Whether
a particular use of military force is justified will normally
be a question which should be determined in an international forum
and not in UK courts.
25 October 2005
PARLIAMENTARY CONTROL OVER THE ARMED FORCES
IN GERMANY
1. The rules governing the deployment of
the German Armed Forces (Bundeswehr), as well as the rules
concerning Parliamentary control over such deployments, derive
from three principal sources: the German Basic Law (Grundgesetz),
the case-law of the German Constitutional Court (Bundesverfassungsgericht),
and, since 18 March 2005, the Bundestag Participation Act (Parlamentsbeteiligungsgesetz).
In addition, the practice of the German Parliament (Bundestag)
over the past decade or so in applying the pertinent rules is
also relevant.
I. THE
BASIC LAW
2. Several provisions of the Basic Law deal
with or refer to the Armed Forces. The central provision is Article
87a, which reads as follows (unofficial translation):
Article 87a [Establishment and powers of the
Armed Forces]
(1) The Federation shall establish Armed
Forces for the purposes of defence. Their numerical strength and
general organisational structure must be shown in the budget.
(2) Apart from defence, the Armed Forces
may be employed only to the extent expressly permitted by this
Basic Law.
(3) During a state of defence or a state
of tension the Armed Forces shall have the power to protect civilian
property and to perform traffic control functions to the extent
necessary to accomplish their defence mission. Moreover, during
a state of defence or a state of tension, the Armed Forces may
also be authorised to support police measures for the protection
of civilian property; in this event the Armed Forces shall cooperate
with the competent authorities.
(4) In order to avert an imminent danger
to the existence or free democratic basic order of the Federation
or of a Land, the Federal Government, if the conditions referred
to in paragraph (2) of Article 91 obtain and the police forces
and the Federal Border Police prove inadequate, may employ the
Armed Forces to support the police and the Federal Border Police
in protecting civilian property and in combating organised armed
insurgents. Any such employment of the Armed Forces shall be discontinued
if the Bundestag or the Bundesrat so demands.
3. Apart from the third and fourth paragraph
of Article 87a, only Article 35 of the Basic Law does expressly
permit the use of the Armed Forces for purposes other than defence.
However, Article 35 sanctions only the domestic employment of
the Armed Forces: it allows a Land to request the assistance
of the Armed Forces in cases of natural disasters or emergencies
in order to support the police in combating the disaster or emergency,
and permits the Federal Government to deploy the Armed Forces
in order to support the police where natural disasters or emergencies
affect the territory of more than one Land.
4. No provision exists in the Basic Law
which regulates in express terms the deployment of the Armed Forces
abroad for purposes other than defence. However, the Armed Forces
have traditionally carried out purely humanitarian activities
both domestically and abroad on the basis that such activities
do not involve the exercise of governmental authority, and therefore
do not constitute an "employment" or "deployment"
(Einsatz) within the meaning of Article 87a(2). In addition,
the German Constitutional Court has interpreted Article 24 of
the Basic Law to permit the deployment of the Armed Forces abroad
in the context of a "system of mutual collective security".
The relevant part of Article 24 provides as follows (unofficial
translation):
Article 24 [International organisations]
(1) The Federation may by a law transfer
sovereign powers to international organisations. [. . .]
(2) With a view to maintaining peace, the
Federation may enter into a system of mutual collective security;
in doing so it shall consent to such limitations upon its sovereign
powers as will bring about and secure a lasting peace in Europe
and among the nations of the world. [. . .]
II. THE
CASE-LAW
OF THE
CONSTITUTIONAL COURT
5. On 12 July 1994, the German Constitutional
Court delivered a judgement (Bundeswehreinsatz, 90 BVerfGE
286, 106 ILR 320) in a case brought by two Bundestag parties
against the German Government, alleging that the latter violated
the Basic Law by committing German troops to military operations
abroad under the auspices of NATO and the UN. Building on its
earlier case-law, the Constitutional Court interpreted Article
24 of the Basic Law in the light of the legislator's intent and
subsequent developments in state practice. First, it found, on
the one hand, that the expression "system of mutual collective
security" referred to in Article 24(2) of the Basic Law covers
Germany's participation in the collective security systems established
under the UN Charter, the North Atlantic Treaty and the Modified
Brussels Treaty of 1954, and, on the other hand, that the authorisation
granted by Article 24(2) to participate in a "system of mutual
collective security" necessarily implies an authorisation
to deploy the Armed Forces within the framework of such collective
security systems, including their integration into multinational
contingents as well as their use in military operations abroad.
Second, the Constitutional Court also found that, notwithstanding
the general authorisation granted in Article 24(2) to deploy the
Armed Forces in the framework of collective security systems,
"the deployment of armed military forces in principle requires
the prior constitutive consent of the Bundestag" (bedarf
. . . der Einsatz bewaffneter Streitkrafte grundsatzlich
der vorherigen konstitutiven Zustimmung des Bundestages).
6. In the absence of an express rule in
the Basic Law to this effect, the Constitutional Court based this
second finding on the general principle of German constitutional
law whereby the "deployment of armed military forces"
requires the Bundestag's approval. The Court deduced this general
principle (also expressed in the maxim "the German Armed
Forces are a Parliamentary force") from the legislator's
intent in drafting the Basic Law, German constitutional traditions
since 1918, and the system of Parliamentary control over the Armed
Forces and military matters set up under the Basic Law, including
Parliament's role in proclaiming a "state of defence".
Some commentators have strongly criticised this aspect of the
Bundeswehreinsatz judgement, arguing that the Constitutional
Court has ventured far into the field of law-making.
7. The Bundeswehreinsatz case left
unanswered a number of key questions. In particular, the Constitutional
Court did not specify the exact scope of the principle of Parliamentary
consent, nor did it sufficiently clarify the meaning of the expression
"deployment of armed military forces" coined in its
judgement. Consequently, differences arose in academic circles
and elsewhere whether, for example, the Bundestag's consent is
required for every single deployment of the Armed Forces even
where that deployment takes place on the basis of treaty obligations
already approved by Parliament. According to some commentators,
purely humanitarian operations not using military force are not
caught by the principle of Parliamentary consent. A different
view holds that the objectives and nature of the deployment are
altogether irrelevant: as long as the military force is in fact
"armed", the Bundestag's consent to its deployment is
necessary. Another view suggests that the Bundestag's consent
is required only where it is likely that the troops will actually
make use of armed force.
8. The Constitutional Court has attempted
to clarify some of these questions in its judgement of 25 March
2003 (AWACS, 108 BVerfGE 34). In that case, a Bundestag
party petitioned the Court to issue a preliminary injunction to
the effect that the deployment in Turkey of German crews manning
AWACS aircraft pursuant to a decision of the North Atlantic Council
was unconstitutional without the Bundestag's consent to the deployment.
The Constitutional Court stated that it had to balance the principle
of Parliamentary control over the Armed Forces against the executive's
responsibility for the conduct of foreign and security policy.
Since it could not be established that the Bundestag's rights
clearly outweighed those of the Government under the present circumstances,
the Court denied the petition. In doing so the Court declared,
referring to its 1994 judgement in the Bundeswehreinsatz
case, that the principle of Parliamentary consent to the "deployment
of armed military forces" is premised on the historical concept
of a state of war. However, in the light of the current political
conditions where wars are no longer formally declared, the progressive
entanglement in an armed confrontation must be deemed to be identical
with a formal entry into war. Therefore, according to the Court,
every deployment of armed German military forces is, in principle,
subject to Parliamentary approval.
9. The Constitutional Court's judgement
in the AWACS case has been understood to mean that the
consent of the Bundestag is required for all those deployments
where the Armed Forces are directly and actively involved in hostile
confrontations or armed conflicts, or where it can be anticipated
that they may be so involved during a particular operation. In
its judgement, the Constitutional Court held that since it could
not be anticipated from the facts known at the time that the German
AWACS crews deployed to Turkey were likely to be directly involved
in hostile activities, the petition for a preliminary injunction
was not manifestly well-founded. Clearly, the abstract possibility
that German soldiers could be the subject of an armed attack does
not, as such, turn an operation into one which requires the consent
of the Bundestag: the possibility of an armed attack against the
State's military may be said to exist at all times. However, exactly
what factors should be taken into account in anticipating whether
a given operation may be involved in hostile engagements abroad
is an open question. For some commentators the nature of the operation
and its geographical proximity to ongoing hostilities is decisive,
while for others only a decision by the competent German authorities
to participate in military confrontation triggers the need for
the consent of the Bundestag.
10. Leaving aside these questions, it is
generally accepted that, in line with the case-law of the Constitutional
Court, the guarding of foreign military installations by armed
German troops, the participation in manoeuvres and military exercises,
the regular contribution of seconded German staff to the work
of multinational military contingents and bodies within NATO,
including participation in AWACS missions, are not subject to
the principle of Parliamentary consent. It has been suggested
that military liaison activities, humanitarian assistance missions
armed for self-defence but lacking a robust mandate, and participation
in fact-finding missions or military exchange programmes likewise
do not require the consent of the Bundestag.
III. PARLIAMENTARY
PRACTICE
11. Between 1994 and 2003, the Bundestag
approved the deployment of the German Armed Forces in 29 instances.
More than half of these deployments took place in the period after
1999. In accordance with the Constitutional Court's decision in
the Bundeswehreinsatz case, the Bundestag's control over
the decision to deploy armed military forces is limited to the
approval or rejection of a Government request. The Bundestag cannot
introduce modifications to such requests. However, in recent practice
the Bundestag has tied its consent to the insertion of a time-limit
in its authorisation to deploy German forces abroad. Thus, its
consent had to be renewed, where appropriate, at least every 12
months.
IV. THE
BUNDESTAG PARTICIPATION
ACT OF
2005
12. As early as 1994, the Constitutional
Court declared in the Bundeswehreinsatz case that it was
the legislator's task to determine the manner and extent of the
Bundestag's participation in decisions to deploy armed German
military forces abroad. This task was eventually taken up by the
main political parties in 2003. Although the parties were agreed
on the need to regulate the Bundestag's participation in these
matters by way of legislation, considerable differences arose
as to how the principle of Parliamentary consent could best be
reconciled with the principle of swift military action. The opposition
parties, fearing that public discussions in the Bundestag could
jeopardise the security and feasibility of planned military operations,
proposed the establishment of a special Bundestag committee to
consider Government requests to deploy German troops. Moreover,
they suggested that operations undertaken within the framework
of the EU and NATO should be approved by the Bundestag on a general,
rather than a case-by-case, basis. Critics of this approach argued
that it undermined the very principle of Parliamentary consent.
Ultimately, the solution adopted in the final legislation, that
is the Bundestag Participation Act of 18 March 2005 (BGBl. I,
775; for an unofficial translation into English, see the ANNEX),
was to introduce an expedited procedure for obtaining the Bundestag's
consent in certain circumstances.
13. The Bundestag Participation Act consist
of nine articles. Article 1 defines the purpose of the
Act, and states the basic principle whereby the deployment of
armed German military forces abroad requires the consent of the
Bundestag. Article 2 defines the expression "deployment
of armed military forces" as a deployment where soldiers
of the German Armed Forces are involved in armed engagements,
or their involvement in an armed engagement is to be expected.
Preparatory measures preceding such deployments and certain activities,
such as humanitarian assistance, are excluded from this definition,
and therefore do not normally require the Bundestag's consent.
Article 3 sets out when the Government shall submit its
request for the consent of the Bundestag and what elements that
request must contain; in addition, it affirms that the Bundestag
may only approve or reject, but not modify, the request. Article
4 creates a simplified procedure for obtaining the Bundestag's
consent in the case of deployments of limited intensity and range.
In essence, the Bundestag is deemed to have granted its consent
to a Government request to deploy troops abroad unless within
seven days of the distribution of the request as an official Bundestag
document a plenary discussion of the Bundestag is called for.
Article 5 provides that deployments demanding immediate
action do not need the prior consent of the Bundestag; however,
the Bundestag shall be informed about the deployment in due course
and its consent must be obtained subsequently. Article 6
obliges the Federal Government to regularly inform the Bundestag
about ongoing deployments. Article 7 deals with the extension
of the Bundestag's consent to deployments that have remained unchanged
in substance since the Bundestag last authorised the deployment
in question. The procedure formulated in the second paragraph
of Article 7 applies at times when the Bundestag is not in session.
Article 8 declares that the Bundestag may recall its consent.
Article 9 is of a procedural nature.
14. The Bundestag Participation Act of 2005
has generally been welcomed by commentators. As the Act is largely
based on the pertinent case-law of the Constitutional Court, its
adoption has not fundamentally altered the existing legal position.
Certain aspects of the Act have nevertheless been criticised.
For some commentators, the definition of `deployment of armed
military forces' in Article 2, which is central to the operation
of the entire Act, represents a missed opportunity to clarify
the case-law of the Constitutional Court. It is still unclear
what considerations govern the anticipation of the involvement
of German troops in an armed engagement abroad, and thus what
level of military risk the Government may take before it is required
to obtain the Bundestag's consent. Moreover, the exceptions to
the definition of "deployment of armed military forces"
are essentially indeterminate, and therefore potentially too broad.
The simplified consent procedure under Article 4, which requires
the Bundestag to take action within a relatively short period
of time to rebut the presumption of Parliamentary consent, has
been denounced by some as the Bundestag disfranchising itself,
while the definition in Article 4 of a "deployment of limited
intensity and range" has been considered too vague. These
criticisms suggest that the adoption of the Bundestag Participation
Act has not answered all of the questions surrounding the deployment
of German troops abroad, and that the Act will have to be applied
in the light of the Constitutional Court's case-law and the Bundestag's
practice.
V. LITERATURE
15. For further details, see D Wiefelsputz,
`Der Einsatz deutscher Streitkrafte und die konstitutive
Beteiligung des Deutschen Bundestages', Neue Zeitschrift für
Wehrrecht (2003) 133; W Weiß, `Die Beteiligung des Bundestags
bei Einsatzen der Bundeswehr im Ausland-eine kritische Würdigung
des Parlamentsbeteiligungsgesetzes', Neue Zeitschrift fur
Wehrrecht (2005) 100. Both of these articles have been relied
on in preparing the present note. For a treatment of the subject
in English, see G Nolte and H Krieger, "Military Law in Germany",
in G Nolte (ed), European Military Law Systems (De Gruyter,
2003) 337.
Aurel Sari
University College London
ANNEX
[UNOFFICIAL TRANSLATION]
ACT CONCERNING THE PARTICIPATION OF THE BUNDESTAG
IN THE DECISION ON THE DEPLOYMENT OF ARMED MILITARY FORCES ABROAD
(BUNDESTAG PARTICIPATION ACT)
18 March 2005
(BGBl. I 775)
Article 1 (Principle)
(1) This Act regulates the manner and extent
of the participation of the Bundestag in the deployment of armed
German military forces abroad. It is without prejudice to Article
115a of the Basic Law.
(2) The deployment of armed German military
forces outside the area of application of the Basic Law requires
the consent of the Bundestag.
Article 2 (Definitions)
(1) A deployment of armed military forces
takes place when soldiers of the German Federal Armed Forces are
involved in armed engagements, or their involvement in an armed
engagement is to be anticipated.
(2) Preparatory measures and planning do
not constitute a deployment within the meaning of this Act. They
do not require the consent of the Bundestag. The same applies
to humanitarian aid services and assistance undertaken by the
armed forces where weapons are carried merely for the purposes
of self-defence, provided it is not to be expected that the soldiers
will be involved in armed engagements.
Article 3 (Request)
(1) The Federal Government shall submit
the request for the consent of the Bundestag to the deployment
of the armed forces in a timely manner before the start of the
deployment.
(2) The request of the Federal Government
shall contain information, in particular, concerning:
— the mandate of the deployment,
— the legal bases of the deployment,
— the maximum number of soldiers
to be deployed,
— the capabilities of the armed
forces to be deployed,
— the planned duration of the
deployment, and
— the envisaged costs and financing.
(3) The Bundestag may consent to the request
or reject it. Modifications to the request are not permissible.
Article 4 (Simplified consent procedure)
(1) In the case of deployments of limited
intensity and range, consent may be given by simplified procedure.
The Federal Government shall set out, giving reasons, the grounds
as to why the impending deployment is one of limited intensity
and range. The President of the Bundestag shall transmit the request
to the Chairmen of the Parliamentary parties and to the Chairmen
of the Foreign Affairs Committee and the Defence Committee, as
well as to a representative (Obleute) designated by each
of the Parliamentary parties represented in these Committees,
and have the request distributed to all members of the Bundestag
in the form of an official Bundestag document. Consent is deemed
to have been granted unless within seven days following the distribution
of the request a Parliamentary party or five per cent of the members
of the Bundestag call for a plenary discussion by the Bundestag.
Should a plenary discussion by the Bundestag be called for, the
Bundestag shall decide.
(2) A deployment is of limited intensity
and range when the number of the deployed soldiers is limited,
the circumstances clearly indicate that the deployment is of limited
significance and it does not entail participation in a war.
(3) In principle, a deployment is of limited
intensity and range, where
— it constitutes a reconnaissance
mission which carries weapons merely for the purposes of self-defence,
— it concerns individual soldiers
who carry out their duties in allied armed forces on the basis
of exchange arrangements, or
— individual soldiers are deployed
in the framework of the UN, NATO, the EU, or another organisation
implementing a UN mandate.
Article 5 (Subsequent consent)
(1) Deployments in cases requiring immediate
action, which admit of no delay, do not require the prior consent
of the Bundestag. The same applies to deployments aimed at rescuing
persons from situations of special danger, provided that a public
discussion by the Bundestag would endanger the life of the persons
to be rescued.
(2) The Bundestag shall be informed, in
an appropriate manner, before the start and during the course
of the deployment.
(3) The request for consent to the deployment
shall be submitted subsequently without delay. If the Bundestag
rejects the request, the deployment shall be terminated.
Article 6 (Duty to inform)
(1) The Federal Government shall inform
the Bundestag regularly about the course of the deployments and
about developments in the operational area.
(2) In cases referred to in Article 4, paragraph
1 (simplified consent procedure), the Federal Government shall
immediately inform the competent Committees and the Obleute.
Article 7 (Extension of employments)
(1) The procedure under Article 4 shall
also apply to the extension of a decision granting consent where
there are no changes to its substance.
(2) Where the Federal Government requests
the extension of a deployment, the deployment shall be deemed
authorised until two days, during which the Bundestag is in session,
have passed following the distribution of the request as an official
document. Should the request be submitted by simplified procedure
under Article 4, it shall be deemed authorised until the expiry
of the deadline defined in Article 4, paragraph 1, fourth sentence;
should a plenary discussion by the Bundestag be called for before
the expiry of the deadline, then it shall be deemed authorised
until the end of the week, during which the Bundestag is in session,
that follows the discussion by the Bundestag. The period of validity
of the original authorisation remains unaffected by the regulations
set out in sentences 1 and 2.
Article 8 (Right to recall)
The Bundestag may recall its consent to the
deployment of armed military forces.
Article 9 (Entry into force)
This Act comes into force on the day following
its announcement.
1 1 Times Law Reports 17 August 1989, 83 ILR 231. Back
2
2 Buttes Gas and Oil Co v Hammer [1982] AC 888; 64 ILR
273 and 331. Back
3
3 Pinochet (No 1) [1998] 3 WLR 1456 per Lord Lloyd
at p `1495. Back
4
4 See, for example, Sadiqa Ahmed Amin v. Irving Brown [2005]
EWHC 1670 (Ch). Back
5
5 The Campaign for Nuclear Disarmament v The Prime Minister
of the United Kingdom and Others [2002] EWHC 2759 (QB). Back
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