In January 2020, in what turned out to be one of my last journeys before the pandemic struck, I traveled to Paris to attend a small workshop with French and German experts on European security. On the agenda: the current wobbliness of the traditional European “tandem” (the Berlin-Paris axis) and how the two countries might once again establish a shared rhythm in security and defense policy.
At the time, following Iran’s seizure of a British tanker, Paris was pushing for a European maritime surveillance mission in the Persian Gulf, with the aim of protecting shipping traffic in the Strait of Hormuz, the key trade route passing between Iran and the Arabian Peninsula. Berlin confirmed its political support for the initiative, but said it would not participate militarily unless the French-led ad-hoc deployment was brought under the auspices of the European Union.
The response of some French colleagues at the workshop was caustic. From the perspective of the French defense establishment, Germany was once again proving itself a problematic partner, ducking out of robust interventions while hiding behind the EU’s institutional framework. There was palpable frustration at Berlin’s military reticence.
Back in the German capital, I shared what I heard in Paris with a small group of parliamentarians, all of them experts in European foreign and security policy. Their response to the French view of German policy? Head-shaking all round. Politicians from all parties were in agreement: If the French had read the German constitution (known as the “Basic Law,” or Grundgesetz), they would know that Germany could not take part in any “coalition of the willing” mission outside a UN, NATO, or EU framework. Discussions about whether the mission would make political and military sense stopped there: the Basic Law says no; subject closed.
I cite the two episodes in Paris and Berlin to illustrate what is an increasingly urgent problem for German security and defense policy. More and more of the country’s security partners—above all the United States—prefer to conduct military missions outside the framework of established alliances; rather, they are forming ad-hoc “coalitions of the willing” for military out-of-area operations, with like-minded states participating according to national priorities and capacities.
Increasing Pragmatism
France has been the main driver of this trend in Europe. Paris sees an urgent need for Europe to become more capable of action on defense and security policy. President Emmanuel Macron famously referred to NATO as “brain-dead” in 2019, and thinks the US will gradually reduce its commitment to European security.
However, Paris has clearly grown tired of the EU’s requirement for unanimity on foreign and security policy, with its long and protracted decision-making processes. Rather than waiting until everyone in Brussels is on board, France prefers pragmatic working relationships with European states that see an urgent need for action and are “willing and able” to make it happen. This category includes the post-Brexit United Kingdom, which has made it quite clear that it is not interested in being affiliated with the EU’s Common Security and Defense Policy (CSDP). It also includes Denmark, which does not participate in the CSDP, thanks to a negotiated opt-out.
Seen from Paris, the missions must determine the coalitions, not vice versa. As far as the French are concerned, ad-hoc alliances are now the norm, on an equal footing with operations undertaken within an EU or NATO framework. Another example is the Takuba Task Force, the joint European military mission to the Sahel region of West Africa. Initiated and led by France, Takuba was launched in 2020 as another deployment taking place outside of formal CSDP structures. Seven European countries now plan to send military contingents to operate under French command. Although Germany has offered political support for the mission, it has repeatedly rejected French requests for military support.
Germany’s Constitutional Framework
Unlike for France, it is indeed difficult for Germany to participate in flexible “coalitions of the willing” outside the framework of the United Nations, NATO, or the EU. Close involvement with all three institutions forms part of German foreign policy’s core brand values. The country’s post-war rearmament only became possible when it joined NATO in 1955. Many key figures in Berlin’s foreign policy establishment worry that operating outside traditional channels of multilateral action could undermine those organizations.
Above all, however, a broad consensus exists on the limits imposed by the constitution on Germany’s government and armed forces. Article 87a, Paragraph 2 of the Basic Law states that apart from defense, the Armed Forces can only be employed if this is explicitly permitted by the constitution. In a landmark 1994 ruling on “out-of-area” operations, Germany’s Federal Constitutional Court stated that Article 24 (2) of the Basic Law allowed such interventions, given the lack of any other explicit constitutional authorization. Article 24 grants permission for Germany to participate in systems of collective security with a view to maintaining peace. At the time, the Court argued that participation in such collective arrangements could include functions typical of the system in question. This would include military intervention.
When it came to ruling on the Treaty on the European Union (the Lisbon Treaty), the Court in 2009 confirmed that “except in case of defense, the deployment of the Bundeswehr abroad is only permitted in systems of mutual collective security (Article 24.2 of the Basic Law)”. Additional stipulations meant that Germany’s parliament must approve military deployments before they take place, and intervention must be in accordance with international law. This set strict constitutional limits on the participation of Germany’s armed forces in military operations, restrictions largely unknown in the United States, France, or the United Kingdom.
However, recent years have seen a shift in German defense policy thinking, albeit one largely unnoticed by the public. In 2016, the Bundeswehr’s new White Paper specifically noted that ad-hoc cooperation would continue to grow in importance as an instrument for international crisis and conflict management. Germany would take this trend into account, the paper stated, and “in cases where the country can protect its interests in this way, it will participate in ad hoc collaborations or initiate them in cooperation with partners.”
The broad “Bundeswehr Concept” (“Konzeption der Bundeswehr”) document, adopted in 2018, also mentions ad-hoc coalitions outside the UN, NATO and the EU as possible operating frameworks for the country’s military. Both documents clearly stand in tension, at least in part, with prevailing constitutional beliefs.
Stretching the Law to Fight ISIS
In fact, the German government and parliament have already stretched the limits of “within the framework and rules of a collective security system,” by sending German forces to participate in the international coalition against ISIS in Iraq and Syria.
The deployment of German forces to the “Global Coalition Against Daesh” had three legal bases: first, UN Security Council Resolution 2249 (although this contains no reference to Chapter VII of the UN Charter, which governs security operations), second, France's right to self-defense under Article 51 of the UN Charter, and third, Article 42 (7) of the Treaty on European Union, the so-called “mutual defense” clause. In addition, very broad interpretations have been made of Article 24 (2), seeking to lend further legal justification to German participation in the anti-ISIS coalition, and thus to align constitutional requirements with new military realities on the ground.
This did not go unchallenged, though. The Green Party still rejects the anti-ISIS deployment, calling it “highly problematic in terms of the constitution and of international law.” The Left Party took a case to the Constitutional Court, seeking a clarificatory judgment on the powers of different branches of government. The Court dismissed the case, stating that there had been no violation of the rights of the federal parliament or of individual lawmakers, since Germany’s participation had gotten parliamentary approval. Moreover, in the context of the lawsuit, the Court declared that it was not responsible for general oversight of the country’s security policy. Unlike its 2009 Lisbon Treaty judgment, however, the Court stated it was “at least arguably justifiable” to view the EU as a collective security organization.
Stuck in the 1950s
In future, Germany will find itself more and more in situations in which it will have to take an opposite view than its allies. Brexit has further strengthened the growing ad-hocism in European security. In the longer term, Berlin will find it hard to avoid pressure to enable military intervention within ad-hoc coalitions, reacting to changed geopolitical realities. It will also find it more difficult to dismiss its partners’ demands simply by referring to constitutional restrictions.
Germany’s parliamentary research services, in a 2016 commentary on the constitutional status of foreign military deployments, correctly stated that constitutional standards on these operations had long since begun to weaken. The Basic Law still reflects the situation of Germany’s armed forces in the 1950s, when Article 87a was put into the constitution after heated debates over rearmament. At that time, the lawmakers had a completely different Germany in mind than today's Federal Republic with its enormous international responsibilities. Germany’s security and defense policy needs have changed significantly in the intervening years. Various scholarly voices on constitutional law are now advocating to advance the reading of the Basic Law, so as to authorize foreign missions through different constitutional norms.
Discussion has focused on whether to broaden the definition of “defense” under Article 87a (2), aligning German constitutional concepts of defense with those found in international law. This would mean that overseas deployments of German troops would always be constitutionally legal as long as they were permissible under international law. Parliament would of course still have to agree.
Some within the center-right Christian Democratic (CDU) parliamentary group have lent political support to this position, citing constitutionally controversial operations against ISIS in Syria and in Erbil in northern Iraq. In November 2015, Norbert Röttgen, the CDU chair of the parliamentary Foreign Affairs Committee, argued that the anti-ISIS mission was “precisely about defense…exactly what the Basic Law says and means.”
An Explosive Issue
The issue could prove to be explosive for any new coalition government after September’s general election. The Greens recently-published political program restated that all military operations must be embedded within “systems of collective security,” rather than “unconstitutional coalitions of the willing.” There is also deep reluctance in the center-left Social Democratic Party (SPD) to abandon prevailing interpretations of the constitution, but the CDU/CSU tend to be more welcoming of broader interpretations of self-defense.
Ultimately, increasing Germany’s room for maneuver on defense remains a political question; the answer cannot simply be “outsourced” to the Constitutional Court. Making greater use of the existing legal leeway would not automatically mean that Germany would participate in all French-led ad-hoc operations in the future—or spearhead a new European interventionism. But it would enable a political debate on military missions in which German participation is discussed on the basis of political criteria: Is the operation in Germany's interest? Are the goals clearly defined and achievable? Is there sufficient support in the Bundestag?
There are good reasons, especially after the experience of Afghanistan and Libya, to view military interventions with great skepticism. In general, it can be seriously argued that European crisis management should be better organized, but kept within the EU framework, rather than using ad-hoc alliances. Missions organized through the EU, apart from anything else, are likely to enjoy greater legitimacy. It would be up to Berlin, then, to double its efforts to ensure that the EU is becoming a more flexible and capable actor in this respect.
With the next general election in sight, the necessity and rationale for military deployments, and their legal framework, needs to be discussed and reexaminged in terms of German values and interests. The Basic Law offers greater flexibility than the ubiquitous knee-jerk citing of Article 24 (2) might suggest. Berlin’s current approach toward coalitions of the willing—offering political backing, but no military assistance—can no longer be justified.
Jana Puglierin is the head of the European Council on Foreign Relations’ (ECFR) Berlin Office.
