Between Military Deployment and Democracy: Use of Force Under the German Constitution

Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018-07

Journal on the Use of Force and International Law, Vol. 5, Issue 2, pp. 246-294, 2018

Posted: 2 May 2018 Last revised: 10 Oct 2018

See all articles by Anne Peters

Anne Peters

Max Planck Institute for Comparative Public Law and International Law

Date Written: May 2, 2018

Abstract

The German regime on the use of military force provides an important reference point for legal comparison. In a 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 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 article 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.

Keywords: system of collective security, self-defense, anti-terrorist action, parliamentary approval, NATO, deployment

Suggested Citation

Peters, Anne, Between Military Deployment and Democracy: Use of Force Under the German Constitution (May 2, 2018). Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018-07. Available at SSRN: https://ssrn.com/abstract=3172049 or http://dx.doi.org/10.2139/ssrn.3172049

Anne Peters (Contact Author)

Max Planck Institute for Comparative Public Law and International Law ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120
Germany

HOME PAGE: http://www.mpil.de

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