Out of Area Operations

The Bundeswehr is in the process of transforming itself from a purely territorial defense force, as it was during the Cold War, into an expeditionary force. Since World War II German units have been constitutionally forbidden from operating outside of Europe; or, so most Germans believed. For more than forty years, the German government claimed that the German Constitution forbade the use of military forces for other than the defense of NATO territory.

In 1994, the perceived restriction disappeared permitting Germany to participate in future international missions around the world. The federal Constitutional Court held that a majority vote of Parliament was all that was required to commit forces to military actions sanctioned by collective security agreements. Germany's 1949 Constitution did not prohibit participation in multilateral peacekeeping or combat operations, and German troops are permitted to join military missions abroad if parliament approves. With that finding, German foreign policy has regained sovereignty, freeing Germany to act fully in concert with other members of the community of nations to which it belongs and to accept the burdens that go along with such an international role. In 1995, for the first time since World War II, Germany sent offensive military forces into a combat zone.

By 2010 Germany had a goal of being capable of deploying up to 10,000 soldiers at a time. German Defense Minister Volker Rühe's new planning guidelines, issued on 12 July 1994 constituted a new overall planing framework. The German Bundeswehr was to be reduced from 370,000 to 340,000 by 1996. This will include some 290,000 Main Defense Forces (MDF) and some 50,000 Crisis Reaction Forces (CRF). According to Klaus Naumann, the purpose of the CRF is to allow Germany to participate in both peacekeeping and crisis management missions to prevent and contain conflicts to keep wars away from German soil.

The Crisis Reaction Forces was to include: Six light, mechanized, air-mobile and air-mechanized brigades with their combat support and logistics components; six air force combat squadrons, two mixed SAM wings, and three mixed air transport wings as well as helicopters for search and rescue missions. Two naval task forces of two to three frigates each with the corresponding mine warfare and naval air arm assets. The German navy was also have the capability to transport a small peacekeeping contingent—about one army battalion — and to serve as command headquarters for that unit. The precise breakdowns for the CRF are 37,000 for the army; 12,300 for the air forceand 4,300 for the navy.

Hans Maull sees Germany as a "civilian power" and proposed four normative principles that governed German use of force decisions: (1) Never again: including pacifism, moralism, and democracy; (2) never alone: including stressing on integration, multilateralism, and democratization; (3) politics, not force: emphasizing the importance to resolve politically; (4) norms define interest.

Germany has been an integral part of the UN-mandated International Security Assistance Force (ISAF) in Afghanistan since its establishment in 2002. With over 1,000 troops on the ground, Germany is the largest contributor to international peacekeeping operations in Kosovo. German maritime forces are also deployed to combat piracy off the Horn of Africa.

Many western democracies have national constraints on deployment of their military forces abroad beyond those imposed by international law—for example Germany, Japan, Denmark, Austria, Ireland, Sweden and Finland. These constraints derive for the most part from specific. historical experiences. German constitutional law requires the advance approval of the Lower House of Parliament (the Bundestag) for deployment of German armed forces abroad where use of military force is likely. The German Federal Constitution was adopted in 1949, shortly after the end of the Second World War and at a time when there were no German armed forces.

Because of the history of militarism, out of area military involvement and deployment (militärischen Auslandseinsätzen = military international missions) was taboo before German unification. The German Army was a territorial defense force that refrained from military involvement abroad. When German mine sweepers were requested after the Gulf War, Hans-Dietrich Genscher said in a report to the Bundestag on 23 August 1990, that the German constitution forbade German participation. However, this does not mean that German troops did not go abroad. From 1960s onward, Germany started to send troops to other countries for humanitarian rescue missions. However, these missions were in the scope of “humanitarian rescue” without any risk of combat.

The Basic Law for the Federal Republic of Germany (Grundgesetz) has many restrictions on the use of force. Given the variety of circumstances in which armed forces of a powerful Western State may nowadays be deployed abroad, the German requirement for advance approval by the Bundestag has given rise to a number of areas of legal uncertainty, some of them clarified by the German Federal Constitutional Court. Although Parliamentary control is clearly perceived in Germany as reflecting the democratic nature of the State's potential use of military force, it has also been perceived abroad—particularly within the framework of the recent development of European Union defence policy — as a serious handicap to Germany's powers of independent action.

No provision exists in the Basic Law which regulates in express terms the deployment of the Armed Forces abroad for purposes other than defense. Article 35 sanctions only the domestic employment of the Armed Forces: it allows a Land to request the assistance of the Armed Forces in cases of natural disasters or emergencies in order to support the police in combating the disaster or emergency, and permits the Federal Government to deploy the Armed Forces in order to support the police where natural disasters or emergencies affect the territory of more than one Land.

However, the Armed Forces have traditionally carried out purely humanitarian activities both domestically and abroad on the basis that such activities do not involve the exercise of governmental authority, and therefore do not constitute an "employment" or "deployment" (Einsatz) within the meaning of Article 87a(2). In addition, the German Constitutional Court has interpreted Article 24 of the Basic Law to permit the deployment of the Armed Forces abroad in the context of a "system of mutual collective security".

The Constitutional Court has attempted to clarify some of these questions in its judgement of 25 March 2003 (AWACS, 108 BVerfGE 34). In that case, a Bundestag party petitioned the Court to issue a preliminary injunction to the effect that the deployment in Turkey of German crews manning AWACS aircraft pursuant to a decision of the North Atlantic Council was unconstitutional without the Bundestag's consent to the deployment. The Constitutional Court stated that it had to balance the principle of Parliamentary control over the Armed Forces against the executive's responsibility for the conduct of foreign and security policy.

The Bundestag Participation Act of 2005is largely based on the pertinent case-law of the Constitutional Court, its adoption has not fundamentally altered the existing legal position. It is still unclear what considerations govern the anticipation of the involvement of German troops in an armed engagement abroad, and thus what level of military risk the Government may take before it is required to obtain the Bundestag's consent.