Memorandum by the German Embassy
PARLIAMENTARY APPROVAL OF ARMED OPERATIONS
OF GERMANY'S ARMED FORCES
1. In 1994, the Federal Constitutional Court
declared that the use of GER armed forces in cases other than
national self-defence was only to be constitutional if conducted
within a framework of mutual, collective security.
Simultaneously, it was reaffirmed that every
armed employment of GER military abroad necessitates prior parliamentary
approval (that is, such employment necessitates prior parliamentary
approval if GER forces may thereby become involved in armed conflict).
This procedure is a product of GER history and
conforms to the concept of a "parliamentary military".
Consequently, it remains outside the Executive's exclusive purview
and the constant flux of short-term politics.
2. The responsibility for the external security
of GER rests mainly with the Ministers of Foreign Affairs and
Defence. Consequently, a close and early coordination between
the latter resulting in a common position is essential to the
effective planning of military operations.
As mentioned previously, the federal government
(in form of the cabinet) has to approve of any military mission
before the final request can be brought before parliament. For
the above reasons, this request is formulated by both, the Ministry
of Foreign Affairs and the Ministry of Defence and is subject
to extensive examination by the judicial experts of both ministries.
Before it can be discussed by parliament, the request must also
be assessed by the Ministry of Justice, the Ministry of the Interior
and the Ministry of International Development. Naturally, this
entire process involves consultation with GER coalition and alliance
partners through the respective channels.
3. Procedures have been optimised over time
(so far 40 parliamentary approvals) and subsequently do not hinder
a timely participation of GER armed forces in armed deployments.
Normally, crises and the resulting willingness
of the international community to act militarily are, to some
extent, foreseeable. The necessary national decision-making process
can already be initiated, while the consultations of the international
community are still ongoing and in this way guarantee a timely
parliamentary decision—even in the case of short-term deployments
(eg EU-Operation ARTEMIS).
Ad hoc deployments (that is, deployment within
days) have been, and will presumably remain, the exception. However,
precautions have nonetheless been taken: the law (5 Parlaments-Beteiligungs-Gesetz
(ParlBGes) allows the subsequent parliamentary approval to the
armed employment of GER military in cases of extreme urgency and
immediate danger. This is no novelty: The emergency evacuation
of GER and foreign nationals from Albania (Operation Libelle 1997),
for example, was mandated by the parliament only after its successful
conclusion.
Timely military action, however, often depends
more on swift coordination within the international community
than on the Member States' national decision-making processes.
4. The law (ParlBGes) having entered into
force on March 23rd (2005) has already found mentioning. Recent
important additions and changes include:
— the "simplified procedure for
approval" which governs the political decision-making process
in cases of military operations of low intensity and equally low
bearing (eg scouting missions or deployments of few individuals);
Approval to a request by the federal government is granted if
there is no objection to the mission by a parliamentary faction
or more than five (5) percent of the members of parliament (MdBs)
within seven (7) days of the notification of that request.
— The right to retraction. The parliament
retains the authority to retract its approval of armed military
deployments.
— The "simplified procedure for
approval" may also be used in the case of prolonging an ongoing
military operations (eg ISAF or KFOR) as long as there are no
conceptual changes to these operations and the parliament approves
of its use.
Consequently, the ParlBGes conforms to the concept
of a "parliamentary military". Its established procedures
ensure timely parliamentary decisions regarding the use of armed
military forces.
14 December 2005
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