German Army involvement in fight against ISIS ruled constitutional

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The Bundeswehr supports the fight against ISIS with military trainers and reconnaissance aircraft – an activity with which the Federal Constitutional Court has no quarrels. A complaint by Die Linke was now quashed by the court.

After the Paris attacks, the German government decided to take part in the fight against the terrorist organization “Islamic State”. At the end of 2015, the Bundestag issued a mandate for the use of Tornado reconnaissance aircraft, tankers for the air refuelling of combat aircraft from other countries and personnel on board AWACS reconnaissance aircraft. The parliamentary group of Die Linke complained, and now they received an answer from Karlsruhe*.

One thing is certain after today’s decision: Die Linke has lost utterly and completely. Its complaint was dismissed on formal grounds. At the same time, by doing so, the court is extending the potential scope for military operations by the German Army.

Not ignored, but overruled

The fact that Die Linke would lose for formal reasons was already to be expected according to previous jurisprudence. The constitutional judges arguments, as in earlier decisions, that if a party is overruled in the Bundestag by the majority, they cannot simply make use of a constitutional complaint to clarify whether a military operation is constitutional.

Die Linke could have successfully sued had it somehow been ignored in the proceedings, argues the court. But simply to let the Constitutional Court review the governement’s defence policy and force this by means of a lawsuit – that, according the court, is not possible.

The decision of the Constitutional Court then becomes really interesting on the last pages of the decision. The court makes it clear that the Federal Government has a very wide margin of manoeuvre in military matters.

For the first time, the judges formulate the following: According to the law of the United Nations, not only self-defence against states is permitted, but it is also justifiable to fight terrorist groups such as the Islamic State in other countries and to invoke this globally recognized right to self-defence.

Green light for fight against terror

Thus the Federal Government has received the green light from Karlsruhe to engage militarily against terrorist groups in the territory of other states, even if the government of this state is not actually an opponent. Die Linke had criticized that UN right would be overstretched, if it could be utilised to justify the fight against private crimes.

An additional novelty in today’s court decision: The judges in Karlsruhe say that the European Union can certainly be seen as a system of mutual collective security. In other words, military operations are not only permitted within the NATO and UN frameworks under our Basic Law (constitution), the EU also constitutes a suitable framework.

This is a signal that the European Union should also be seen as a military alliance. In future, therefore, the Federal Government will not have to fear any trouble from Karlsruhe if it only sends out the Bundeswehr within the framework of the EU for assistance and defence purposes.

*Karlsruhe is the seat of the Federal Constitutional Court

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