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Germany

Constitutional Court split over role of armed forces in Germany

Germany's Constitutional Court is reportedly divided over whether to allow the country's military, the Bundeswehr, to use all means at its disposal in the case of a high-level domestic security threat.

The First Senate of the Constitutional Court

The constitutional court is split over the use of the military in Germany

Germany's Constitutional Court is reportedly split over the role of the country's armed forces within German borders. One half of the court, the first senate, says the Bundeswehr should not be allowed to act offensively inside Germany. It says the constitution doesn't allow it.

But according to reports in the daily newspaper Sueddeutsche Zeitung, the second senate is reportedly pushing for an expanded domestic role for the armed forces. The paper reports the second senate wants the Bundeswehr to be able to use its full force in the case of an especially threatening domestic security situation.

Hesitation over granting the Bundeswehr more powers inside Germany is linked to memories of the military's domestic role under the Nazis, says Heinz Schulte, a policy, defense and security analyst in Berlin.

Schulte told Deutsche Welle that, despite these fears, the Bundeswehr would be crucial in protecting Germany if it came under terrorist attack.

"It seems to me that in the case of a very serious threat, an asymmetrical threat, there will be no alternative but to use the Bundeswehr inside Germany," Schulte says. "The current scenario is that the Bundeswehr can assist the German civil authorities, particularly the police, in the case of natural emergencies, like floods.

A pair of Phantom F4-F fighter jets used by the Bundeswehr

The Bundeswehr would be called on to intercept hijacked planes

"But what we're talking about is a different scenario. What happens if there's a terrorist threat on a major scale in Germany? Will the police be able to guard all the airports and ports and crucial infrastructure points in Germany? The answer is, no, they will not be able to."

Controversial act

Much of the debate has centered on the 2005 Aviation Security Act, which sought to allow the Bundeswehr to pre-emptively shoot down hijacked commercial airliners.

It was ruled, however, that shooting down any such plane would be a violation of the basic rights of the passengers and crew onboard. As it stands, the Bundeswehr is only allowed to deploy fighters to try alter the course of any hijacked planes.

At the time, the Christian Democrat deputy parliamentary floor leader, Wolfgang Bosbach, argued strongly for an amendment to the constitution to grant the Bundeswehr more operational maneuverability.

"A country's security must be defined differently today than during the time of the Cold War, especially since internal and external security can no longer be so strictly divided," Bosbach told the Netzeitung online newspaper at the time.

The chairman of the First Senate of the Constitutional Court, Ferdinand Kirchhof, meanwhile, remains steadfast in his view that without an amendment to the German basic law - the country's constitution - no "military means of warfare may be used" within the country's borders under any circumstances.

The twin towers of the World Trade Center burn behind the Empire State Buildiing in New York

The Act was passed following the attack on the World Trade Center

The Aviation Security Act led the Constitutional Court to ask more fundamentally what the role of the Bundeswehr inside Germany actually should be. It ruled that the constitution did not allow the government to order the armed forces to use military weapons inside Germany.

Revised role

The second senate is reportedly not pushing for a revision of the ruling on the Aviation Security Act, but rather wants to see a loosening of the restrictions on the Bundeswehr's use of weapons inside Germany.

The body reportedly wants the Bundeswehr to be allowed to use any weapons at its disposal in the case of "particularly severe incidents."

Heinz Schulte says the Bundeswehr would have no choice but to accept such responsibilities, despite already being overburdened by its international responsibilities, "particularly against the background that it is under enormous pressure with regard to ongoing operations like the anti-pirate Operation Atalanta, and of course Afghanistan, and continued operations in the Balkans."

If the first and second senates of the Constitutional Court are unable to find a solution to the legal confrontation, the matter could be put to a vote of both senates meeting together. This would be only the fourth time in the court's history that such a plenum would be held.

Author: Darren Mara
Editor: Michael Lawton

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