Military Operations Abroad Under the German Basic Law

The German regime on the use of military force is unique for its dense legalization and concomitant complexity, and provides an important reference point for legal comparison. The constitution of 1949 (the Basic Law) allows the deployment of the military abroad for purposes of defense only and within the framework of a system of collective security. Under the latter heading, the German army since the 1990s has contributed to numerous collective military operations. The contours of the constitutional regime are judge-made and based, so far, on four lead judgments. In the seminal judgment of 1994, the Constitutional Court identified a constitution-based requirement for each military deployment to have parliamentary approval. The formalities of the involvement of the Bundestag were, in 2005, codified in a statute. Recent German participation in coalitions of the willing against pirates and terrorists have raised the question whether such operations are still covered by the constitutional bases, and participation in anti-Islamic State action in Syria is currently under review by the Constitutional Court. The Chapter concludes that the tension between the need to effectively integrate military forces into multinational operations, democratic accountability, and judicial oversight has been uniquely resolved in the German constitution and statutory and case law. It illustrates the feasibility of upholding standards of democracy and the rule of law in foreign and military affairs.