Court ruling on military use puzzles politicians | Germany| News and in-depth reporting from Berlin and beyond | DW | 18.08.2012
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Court ruling on military use puzzles politicians

The government welcomed a ruling by Germany's highest court permits military combat missions in German air space. But many politicians say the decision leaves too many open questions.

A few minutes after the news from Karlsruhe broke the online discussion forums on German television channels, daily and weekly papers were flooded with comments. Most comments shared a bottom-line. One said the Karlsruhe ruling issued Friday (17.08.2012) looked like a "gradual development towards dictatorship." Other users felt reminded "of Weimar," a period of German history that ended with Hitler's rise to power through misuse of the constitution at the time. Still others recalled "the Emergency Acts" from 1968 that were passed during the students' rebellion. Many voiced their concern that the Constitutional Court may have effectively given politicians the possibility to take action against the civilian population.

"What are the reasons for making it possible to deploy the Bundeswehr at home to this extent? In which situations would this have been necessary in the past? What are politicians preparing for?" one user wrote, summarizing his concerns.

German politicians, however, failed to give an explicit answer to these questions.

Late reaction from German government

It took the German government almost five hours to publish a statement, "The Federal Ministry of the Interior and the Federal Ministry of Defense welcome today's decision by the Federal Constitutional Court regarding the deployment of armed forces within the country's borders."

The decision, the government's text continued, confirmed the government's underlying interpretation of the law, "Guaranteeing our citizens' safety and security is one of the state's most important tasks. Any further conclusions that could be drawn from the decision will now be assessed in detail."

German Justice Minister Sabine Leutheusser-Schnarrenberger warned of conclusions that Minister of Defense Thomas de Maizière (CDU) and Minister of the Interior Hans-Peter Friedrich (CSU) could potentially draw from the ruling.

"Separating internal and external security is crucial and will remain crucial," she said. "Just because something is possible under constitutional law does not mean it is politically justified."

She added that Germany was based "on the principle that the Bundeswehr are not auxiliary policemen." In their position as government coalition partner, Germany's Liberals would always see this principle as guiding their actions, according to Leutheusser-Schnarrenberger.

Widespread perplexity

After the ruling from Germany's highest court, many politicians were reluctant to voice their opinion, possibly because it remains not clear what is meant by the "states of emergency of catastrophic proportions" clause the court included in is ruling.

Judges failed to give a precise definition of phrase. Heavy criticism came from the opposition. Social Democratic Party parliamentarian Michael Hartmann said the court "leaves all those in charge helpless," because of its failure to define such an emergency situation.

German Defense Minister Thomas de Maiziere, at a press conference Photo:Ahmad Jamshid/AP/dapd)

Defense Minister De Maiziere (r) in Afghanistan: "Any further conclusions will now be assessed in detail"

Claudia Roth, chairwoman of the Green party, criticized that the ruling didn't provide any "certainty of the state of law in situations where difficult decisions have to be made."

Though, according to her, the next step is clear: "The verdict allows the Bundeswehr to conduct armed combat operations within the country's borders in case of a terror attack - within narrow limits. Politicians will now have to find a clear definition of these limits in the light of the constitution."

The spokesperson for the Left party's parliamentary group Paul Schäfer, said the ruling represented a threat for democracy. The German government had "long" been pushing "to suspend the differences in responsibility for internal and external security," he said, adding that "mixing Bundeswehr, civil protection action and the fight against terrorism" undermined Germany's Basic Law.

Government parties CDU/CSU approve

The spokesperson for domestic affairs within the conservative Christian parliamentary group, Hans-Peter Uhl, welcomed the decision by Germany's top court. The ruling confirmed the "parties' understanding that there is a risk of terror attacks where the police would not be able to cope on their own."

According to Uhl, the ruling was "of utmost importance" for citizens' safety. He also said he saw the decision as a reversal of the perceived taboo of Bundeswehr deployment within the country's borders.

After the Second World War, strict restrictions on the deployment of the military in Germany were set down in the constitution in light of the abuses by troops and paramilitary forces in the Nazi era.

In 2006, Germany's top court used this argument to fight off the government's attempt to allow more flexibility in its military response to a possible terror attack in the wake of the September 11, 2001 suicide hijackings in the United States.

The conservative Christians' parliamentary spokesperson for defense affairs, Ernst-Reinhard Beck, joined the ranks of those who welcome the latest Constitutional Court's judgment by saying, "The verdict closes a gap between the deployment of the military in the case of natural disaster and terror attacks." Beck said he believed the top court's ruling has specified the areas of deployment of military within Germany's borders.

The chairman of the Interior Policy Committee of the Bundestag, Wolfgang Bosbach, went along the same lines.

"The decision puts an end to any legal grey area that used to exist in the case of past air force missions that were aimed at fighting off imminent threats. It states that these missions are backed by our constitution," said Bosbach in an interview with Düsseldorf-based newspaper "Rheinische Post."

Should Germany be faced with a disaster and should the Bundeswehr be the only unit equipped with the right technical possibilities to fight off these threats, the Bundeswehr must be allowed to help, he added.

Constitutional judges not unanimous

But the heaviest criticism of the top court's Bundeswehr ruling possibly came from Karlsruhe itself. In a dissenting opinion, judge Reinhard Gaier went against all his other colleagues. He said the decision effectively represented a change of constitution, and that the court had overstepped its powers. Anyone trying to suspend the separation of military and police had to change the Basic Law.

But despite all the political efforts this had still not happened, wrote Gaier. "You may find it unbearable for the armed forces to be stuck in the role of inactive observer in the case of terror attacks, but it is still not the task and not the competence of the Federal Constitutional Court to correct this matter."