German participation in air surveillance flights ahead of the Iraq War was unconstitutional, according to a Constitutional Court ruling. Parliament always has the final say in foreign troop deployments, the court said.
The German government erred in getting involved in the lead-up to the Iraq War without parliamentary approval, according to a Wednesday, May 7 decision from Germany's highest court.
The German center-left government under then-Chancellor Gerhard Schroeder should have gotten prior approval from the Bundestag, Germany's lower house of parliament, before taking part in a surveillance mission to Turkey in 2003, the court ruled.
Germany's parliament had refused to join in the US military invasion of Iraq. But Schroeder's government agreed to supply troops for the Turkey flights. This outraged members of Germany's Free Democratic Party (FDP), a free-market liberal party.
Five years ago the FDP asked a court for an emergency injunction to stop the deployment. The German constitution requires parliamentary approval for all foreign armed deployments, and Turkey qualified, the FDP said.
Germany had sent its Airborne Warning and Control System (AWACS) planes at the request of its NATO ally, Turkey. Germany provided crews to man NATO planes that flew surveillance flights near Turkey's southern border which were meant to protect Turkey against an Iraqi attack during the US-led invasion.
Schroeder's government described the 2003 deployment as a "routine" NATO operation. A lower court agreed, lifting the FDP's injunction.
Flights were form of deployment
Yet the constitutional court reversed that decision Wednesday. The court ruled that there was a real possibility German military personnel could have been drawn into a conflict. The court equated the flights with "armed deployment" which needs parliamentary approval.
"It is important that the responsibility for the deployment of armed troops remains in the hands of the representative body of the people," i.e. parliament, the judges said in the ruling.
FDP head Guido Westerwelle hailed the Constitutional Court ruling as "historic," saying that it would keep the German army under parliamentary control and prevent it from being turned into a tool of the government.
While the law suggests that the parliament has to approve all foreign armed deployments, previous rulings suggest that in cases of acute threat, the government may seek parliamentary approval after the fact.
The decision is unlikely to have any legal consequences for Schroeder or other members of his government but will influence the military policy-making of future administrations.
The German military currently has parliamentary mandates for missions around the world including deployments in Afghanistan, Bosnia, Kosovo and the Horn of Africa. Germany does assist in training Iraqi security forces, although not on Iraqi territory.
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