The German Armed Forces must serve the will of the people

70 years after the end of World War I

Challenging the requirement of parliamentary approval is directed against the lessons from the World Wars

by Karl Müller

70 years after the unconditional surrender of the German “Wehrmacht” – on 8 May 1945 to the forces of the Western Allies and on 9 May to the Red Army – a commission of the German “Bundestag”, officially carrying the long name “Commission for verification and safeguarding parliamentary rights in case of mandating the German Armed Forces missions abroad”, in short form, however, named after a former German Defense Minister “Rühe Commission”, is requested to submit a report and to make suggestions. It’s about the question, “how, on the way of progressive integration into the alliance and despite diversification of tasks, the parliamentary rights can be secured” and where there is a need “for adaptation of the Parliamentary Participation Act”.
It is a grotesque of history that this commission is just named after the German Defense Minister, who in 1998 against his own chancellor advocated for German participation in an illegal war against Yugoslavia and who already in 1994 gave an interview to the news magazine Der Spiegel indicating the German way, according to which the Germans should be prepared not with one large, but with many small steps (“salami tactics”) for war missions of the German Armed Forces.

The German Armed Forces as a nodding-through panel for NATO decisions?

Rühe already publicly expressed, what was to be the “compromise” between the rights of the people’s representatives and the “integration into the alliance”. In an interview with the radio station “Deutschlandfunk” of 10 September 2014, six months after the establishment of the Commission, named after him, he spoke about possible “urgent decisions” of the “Bundestag” within a day, but especially about the subsequent Parliament’s acceptance of government decisions. As Rühe said, it must never happen again, that the “Bundestag” refusesd joint NATO operations. In future, the federal government should, “after it had been conclusively regulated in NATO, go into Parliament and report to Parliament, whereof we have made ourselves dependent and what is expected of us, if we do not want to paralyze the others. Parliament should acknowledge and approve of this.”
In fact, already today German Armed Forces, German soldiers are quite intensively involved in NATO war preparations and warfare. Reality has run ahead the claims of German politicians, like the President, the Defense Minister or the Minister of Foreign Affairs. The renewed public debate about German participation in an EU army and the related statements of the German Defense Minister – “It may happen that we have to change German law.” – are the prelude to a “legalization” of previous and coming injustice.
The Minister is seconded by other members of the Rühe Commission, such as Roderich Kiesewetter of the CDU – “Dutch and Poles would be deeply disappointed, if a mission of joint units required by them fails because of the ‘Bundestag’. Who is setting up integrated forces, expects reliability – they expect it from us and we expect it from them.” Or Niels Annen of the SPD: “The ‘Bundestag’ has to take it seriously, if the allies have some doubts.” The fact that Mr Kiesewetter just mentioned Poland, is particularly volatile. In Poland there are influential forces who wish rather sooner than later to go to war against Russia. Even together with German soldiers?
With regard to the planned EU-Armed Force the Member of the German Federal Parliament Kiesewetter suggests: “The approval of deploying German troops within the European Armed Force may be transferred temporarily to the European Parliament.” Niels Annen (Member of the German Federal Parliament) added to the considerations of the German Defense Minister concerning changes in German law: “If she aims at transfering competences of the ‘Bundestag’ to the European Parliament, we are thinking in a similar direction.” The plans of the Green Party Members of the German Federal Parliament, Cem Özdemir and Tobias Lindner go even further. In their official statement on the proposal to establish an EU Armed Force, they claim that such an Armed Force might make national Armed Forces obsolete. They want the German parliamentary reservation to be equally and entirely replaced by a “control” authority of the EU Parliament.

Federal Constitutional Court: German Armed Forces are the matter of the people and of its representatives

All these politicians reveal an insufficient legal and historical awareness. In 1994, in its judgment on the Somalia deployment of the German Armed Forces in the year 1993 (BVerfGE 90, 286) the German Constitutional Court established the requirement of parlamentary approvel, or “parliamentary reservation” by judgement of the highest court. The judgment states: “The constant purpose of the regulations of the ‘Grundgesetz’ (Basic Law) with respect to the armed forces is – in the various stages of their shaping – not to leave the power potential of the ‘German Armed Forces’ to the executive alone, but to integrate it as an “army of the parliament” into the democratic constitutional order, that is to secure for the Parliament a legally relevant influence on the structure and the deployment of the armed forces.”
In the text of the judgement the Court reacts not only to the corresponding provisions in the “Grundgesetz”, in particular to those for the case of defense, which may only be declared with a majority of two thirds by ‘Bundestag’ and ‘Bundesrat’ (Article 115a of the Constitution), but also to the history of the German armies’ power of order. The Court cites among other things the rapporteur on the occasion of the adoption of the “Grundgesetz” amendment at the time when a German army constitution was established: “‘The fateful political decision on war and peace […]’ should ‘be made by the highest representation of the whole people, whose fate is concerned, therefore, by Parliament.’” The Court concludes: “The decision, expressed in these provisions of the ‘Grundgesetz’ on the background of the German constitutional tradition since 1918 for full parliamentary control over the armed forces, reveals a principle underlying the army constitution, according to which the deployment of armed forces requires the constitutive, antecedent approval by the ‘Bundestag’.” Determining the details was left to the legislator by the Court, who fulfilled this more than 10 years later, in 2005 with the Parliamentary Participation Act. In the second subparagraph, paragraph1 the principle is formulated: “The deployment of German Armed Forces outside the scope of the ‘Grundgesetz’ [i.e. outside Germany] requires the approval by the ‘Bundestag’.”

EU is not allowed to decide on military missions of the German Armed Forces

The Federal Constitutional Court and the Parliamentary Participation Act have formulated only narrowly defined exceptions in the case of “imminent danger that can not be delayed.” But there is no mention of any necessary “integration into the alliance”. On the contrary, the Parliamentary Participation Act even determines that in the case of “imminent danger” as well as in other cases, the German “Bundestag” may terminate a German military mission at any time. Even more: In its judgment on the “Lisbon Treaty” the Federal Constitutional Court decided in June 2009 that the German military constitution and the parliamentary rights in the deployment of the Federal Armed Forces are part of the core of the German “Grundgesetz” and may not be transferred to the European Union, because it is an essential of German democracy that must not be given up ... Literally the judgment reads: “Even if the European Union was developed into a peacekeeping regional system of mutual collective security within the meaning of Article 24 (2) of the ‘Grundgesetz’, a supranationalisation with application priority regarding the specific deployment of German Armed Forces is not permitted in this area, because of the priority of peace and democracy, which in so far is precedent to the integration authorization of Article 23 (1) GG. The requirement of parliamentary approval (parlimentary reservation) for the deployment of the German Armed Forces abroad is integration-resistant.” (Federal Constitutional Court/BVerfGE 123, 267)
“Grundgesetz”:

Commitment to international law and prohibition of aggressive war

70 years after the end of the war, there is a controversy in a question that is central for the country and for the Germans: Who decides on the fate of Germany? After the war the “Grundgesetz” had provided Germany with the possibility of becoming a democratic state. The orientation on international law (Article 25 “Grundgesetz”) and the punishability of preparing wars of aggression (Article 26 “Grundgesetz”) were constitutive. Anyone familiar with history, knows that none of the two German states were actualy sovereign when they were established. But with the decisions of Potsdam even the victors had determined that the “definite reconstruction of German political life on a democratic basis and the potential participation of Germany in international life” should be prepared. Since then there have been many efforts in Germany and also some success therein, to make Germany more democratic and to help it become an actor in international relations that is orientated on international law. Unfortunately, these steps have increasingly been obstructed after 1990, especially by West German power elites who do no longer demand democracy for Germany, but claim that the idea of ​​national sovereignty is outdated and that important issues of the community are to be left to “transnational governance”, i.e. they are to be left to a “governance” from the top that exceeds national borders. Recently German Finance Minister Wolfgang Schäuble, repeatedly emphasized this view, for instance in an article among others for the “Frankfurter Allgemeine Zeitung” of 7 April 2015.

Yes to the “citizen in uniform” and No to the “archaic fighter”

The question of the rights of the German parliament concerning operations of the German Armed Forces belongs in this context. Should the soldier of the German Armed Forces – as it was intended after its founding – be a “citizen in uniform” with democratic attitudes? A citizen who is ready to defend his country and his people in case of an attack, if necessary? Closely tied to the will of the people! Or shall the German Armed Forces increasingly degenerate to an “expeditionary force”, submitting to political interests of foreign masters and cherishing the vision of the “archaic fighter”, far from the will of the people?
70 years after the Second World War, these questions are of central importance for Germany’s future. The German Armed Forces are currently deployed in 12 countries outside of Germany: at the Horn of Africa, in Kosovo, in Turkey, in the Mediterranean Sea, in missions labeled as fight against terrorism, in Sudan, off the coast of Lebanon, in Southern Sudan, in Somalia, in Syria related to the destruction of chemical weapons, in the Central African Republic, in Mali, in Afghanistan and Iraq. All these operations are rightly controversial, but they have not yet been the major combat operations. which we are going to see in the future. Unfortunately, the rights of the German parliament are no guarantee that this Parliament will say “No” when asked. But the sense of parliamentary approval and the legal situation means that the German military forces are bound to the will of the German people. Whenever the parliament does not follow that will, it must be called to heel. Direct democratic decision-making powers must be created and complement parliamentary democracy. But such a correction would take another turn than the one that is now being planned by politics in order to bypass the people.     •

“‘The requirement of parliamentary approval (parlimentary reservation) for the deployment of the German Armed Forces abroad is integration-resistant.’”

The army and the people

km. The aim of having an army which is at the service of the people’s will and which therefore takes up arms only in case of an armed attack on the own country in order to defend the latter is the result of bitter historical experience.
Until the beginning of the 19th century in the German regions, the only existing armies were mercenary armies serving their paying prince or other army leaders – the best known among them is Wallenstein. Following the Prussian army reform after the defeat against Napoleon’s conscript army, compulsory military service was introduced in Prussia and there were outstanding figures like Gerhard von Scharnhorst who showed a noble attitude and bold thinking among the leading officers. However, these reforms were influenced by democratic thoughts only at the beginning. With the restoration of the rule of the aristocracy after 1815 the German conscript armies were not under the obligation of the people, but of their princes. The struggle for the first all-German Constitution of 1848/49 failed not least because of the armies of the Princes. When political opposition arose as was the case in the Prussian Parliament, it was fought down with a breach of the constitution. The then Prussian Prime Minister Otto von Bismarck later recalled how he took sides and explained that “the representatives [ought to] lay the greatest weight of iron and blood into the hands of the King of Prussia, so that he could put it into the one scale or the other, just  as he pleased.” Three wars followed.
The Constitution of the Empire (1871–1918) determined that the Commander in Chief of the army was the German Emperor (and King of Prussia). In the history books, you find the attitude that was demanded by the soldiers. So Wilhelm II let the recruits of his Potsdam guard regiment know: “You have sworn loyalty to me, that is to say, you are my soldiers now, you have devoted your hearts and souls to me; there is only one enemy for you, and that is my enemy. With the current Socialist activities, it may happen that I command you to shoot down your own relatives, brothers, even parents – which God may prevent – but even then you must follow my orders without a word of complaint.” The elitist attitude of German officers was reflected in an article of the Military Weekly: “In no other country of the world the officer stands at such a high level, takes such a high rank on the scale of human society and such a prestigious and respected position as in Germany. The basic convictions descending from the original concept of the officer corp are: dynastic sense, unconditional loyalty to the person of the monarch, increased patriotism, preservation of the existing, defending the King’s rights which had been entrusted to the officer’s protection and combating unpatriotic mentality which was hostile to the King.”
We all know about the millionfold killing and dying during World War I.
The “Reichswehr” in the Weimar Republic, too, did not feel obliged to follow the rules of democracy. Its officers, who mostly came from the Imperial Army, despised democracy and were not ready to defend the young Republic against right-wing insurgency within the country. Many officers of the “Reichswehr “welcomed the Nazis’ rise to power, supported the murder of Hitler’s intra-party opponents in the summer of 1934 and submitted to Hitler’s “Wehrmacht” and its rearmament policy and infringements for a long time without a murmur.
Yes, there were also upright officers with a noble mindset. There was the 20 July 1944 and its history. There were high-ranking officers of the army who as early as in 1938 disapproved of Hitler’s war plans as a gambler’s aberrations and were even willing to overthrow Hitler for a short time. But even a man like Claus Schenk Count of Stauffenberg became an admirer of the “Führer” after Hitler’s first war successes and was still dreaming of a Germany victory in an unjust war long after he had inwardly already dissociated from the Nazis. Not all “Wehrmacht” officers and certainly not all “Wehrmacht” soldiers were criminals, but the “Wehrmacht” was also involved in serious crimes during the war.
The famous founding fathers of the German armed forces and of the Military Constitution in the German “Grundgesetz” were aware of all this and wanted to take it into account. The German Armed Forces, the federal army, should be a pure defense army, the German Armed Forcessoldier a citizen in uniform bound to his people, the German army should be an army of democratic order and democratic backing. But where is it now – and where is it intended to head for?