Germans to the Front?¹ or Le malade imaginaire

Daniel-Erasmus Khan and Markus Zöckler ²

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I. Introduction

When Oskar Lafontaine, the candidate of the Social Democratic Party for the position of the Federal Chancellor in the last federal elections, was asked to comment on requests for a more active German participation in the Gulf War, he warned: `Don't these foreigners understand that you can't offer brandy chocolates to a former alcoholic who has finally managed to stay on the wagon?'<sup>3</sup> Germans as potential `waraholics'? More than 40 years of peace in Germany, a basically anti-militaristic education of the German youth and painful memories of a sabre-rattling and war-mongering Germany in the past have cultivated the breeding ground for a widespread distrust in the value of military force in international relations, especially on the left of the political spectrum.⁴ Polls about possible deployments abroad of the Bundeswehr (German armed forces) have proved this critical attitude of large parts of the German population,⁵ and even in the conservative political circles of Germany, the use of the Bundeswehr abroad has been judged rather sceptically.

Both social-democratic and christian-democratic federal governments have repeatedly rejected an active participation of Bundeswehr units in UN peace-keeping operations or other military measures of the UN. All governments have so far insisted that such uses of the Bundeswehr outside the NATO territory would not be authorized by the Grundgesetz (German constitution).⁶ In short, all German governments have adhered to the following motto: `Politically (basically) willing, but (unfortunately) legally incapable.'⁷ The legal opinion of the Federal Government⁸ is opposed however by the majority of German scholars of Constitutional law, who do not find serious constitutional obstacles for participation by the Bundeswehr in UN operations, and consequently deny the necessity of a constitutional amendment.⁹

However, the German Government seems unimpressed by the constitutional experts' assertion that the Grundgesetz grants sufficient freedom of action for the Bundeswehr¹⁰ to contribute to UN security operations. Responding to a question in the Bundestag (German parliament)¹¹ Ms. Adam-Schwaetzer, Undersecretary in the Ministry of Foreign Affairs, declared bluntly that: `In order to form its own opinion, the Federal Government will not be directed by the majority opinion of jurists but will follow its own judgment ... and political necessities.'¹²Although this discussion might turn out to be one more situation where the more convincing legal argument does not prevail in the political arena, lawyers are still called upon to draw the line between constitutional interpretations which are reasonably justifiable, and those merely put forward as a cover-up for the lack of political will.¹³

After a brief survey of the scenarios for a participation of Bundeswehr units in UN operations¹⁴ (infra II.), this article will attempt to provide a comprehensive presentation of the present debate about prohibitive constitutional restrictions.¹⁵

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1 `The Germans to the front!' was the straightforward order of the British Commander-in-Chief Lord Seymour on 22 June 1900, when the attack on Fort Hsiku was initiated during the Boxer Rebellion in China.

2 University of Munich.

3 Quoted in Buruma, `The Pax Axis', 38 The New York Review of Books, No. 8 (1991) 25.

4 According to a recent poll, 43% of young Germans found that the German armed forces were `superfluous', and 11% thought they were actually `harmful' (see Buruma, ibid., 26). Fisler-Damrosch, `Constitutional Control of Military Actions: A Comparative Dimension', 85 AJIL (1991) 92, at 99 detects that `a basic antiwar philosophy continues to enjoy widespread public approval' in Germany.

5 These polls show that 79% of the Germans opposed the use of force after the expiration of the ultimatum contained in SC Res. 678 of 29 November 1990, para. 2 on 15 January 1991 in the Gulf War (see TIME Magazine No. 4/1991, 28 January 1991, at 29).

6 For a typical statement see Undersecretary Ms. Hamm-Brücher, 18 September 1978, Bundestag-Drucksache VIII/2115, para. 10, at 6: `The Grundgesetz does not contain any provision which would explicitly authorize the participation of the Federal Republic of Germany in peace-keeping forces of the UN' (our translation).

7 See, e.g. Chancellor H. Kohl: `We very much regret that our Constitution does not allow us at the present to assume our full responsibility in the area' quoted in `Germany Pledges $1.87 Billion to Aid Gulf Effort', N.Y.Times, 16 September 1990, at A 16, col. 3.

8 Recent statements indicate, however, that the Government is reconsidering its position. In his government policy statement of 30 Jan. 1991, Chancellor Kohl mentioned that a `clarification of the constitutional basis' for a German participation in military UN operations is necessary (Bulletin der Bundesregierung No. 11/1991, at 76, our translation). This could be interpreted to mean that the demanded constitutional amendment would not introduce a substantive change of the Grundgesetz but would be of a merely declaratory character.

9 This is the clear result of a conference held under the auspices of the Max-Planck-Institut in Heidelberg on 17/18 August 1989, published in J. Frowein, T. Stein, Rechtliche Aspekte einer Beteiligung der Bundesrepublik Deutschland an Friedenstruppen der Vereinten Nationen - Kolloquiumsbeiträge und Diskussion [cited as Reports or Comments in the following] (1990).

10 Of course, any possible use of the Bundeswehr is limited by Art. 26 I Grundgesetz: `Acts tending to and undertaken with the intent to disturb the peaceful relations between nations, especially to prepare for aggressive war, shall be unconstitutional. They shall be made a punishable offence.'

11 Interpellation by Ms. Geiger (CDU/CSU parliamentary group), Bundestag-Drucksache XI/5381.

12 Deutscher Bundestag, Stenographische Berichte, 11. Wahlperiode, 167th meeting (19 October 1989) 12,642 (our translation).

13 The former Minister of Defence Scholz now criticizes that legal excuses often served as an alibi which conveniently hid underlying political reservations, see Scholz, `Deutsche unter blauen Helmen', Die Neue Ordnung (1991) 130.

14 This article focuses exclusively on the problem of potential uses of the Bundeswehr within the UN framework.

15 Considering the constitutional reservations advanced by German governments, the practice of using German armed forces abroad has not been consistent; for example, after the end of the Gulf War minesweepers of the German navy helped to clean up the Persian Gulf. For a critical opinion, see Randelzhofer, `Commentary on Art. 24 II at para. 44 footnote 94', in T. Maunz, G. Dürig, R. Herzog, R. Scholz (eds), Kommentar zum Grundgesetz (1989).

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