Germany is a Rechtsstaat—a country anchored in law. The German constitution, or Basic Law, is a mirror of German thinking about its democracy, just as the U.S. constitution reflects American interpretations of the rule of law, justice, and the parameters of government.
When it comes to foreign policy decisions, Germans are particularly meticulous about the framework of legal justifications for the use of Germany’s military forces. The debates over West Germany’s participation in NATO in 1950s or the debate in 1994 concerning the deployment of German armed forces “out of area” in the framework of NATO or the UN further demonstrated the careful and often contentious confrontations over Germany’s engagement in military conflicts.
Although German history looms large in all these debates, their evolution has demonstrated the gradual recognition of the need to recognize Germany’s responsibility in confronting the realities of military force in a dangerous world. Germany’s participation in the military actions taken against Serbia in the Balkan conflicts and its engagement in Afghanistan since 2001 is further evidence of that evolution.
Last week saw another case in this series of debates over military policy. Following an extensive debate and a grilling of the key Ministers in Angela Merkel’s government, the majority of the parliamentarians supported the decision in the Bundestag that approved military engagement in fight against ISIL. That engagement will involve sending 1200 troops, six fighter jets, and a frigate to the region. This comes after another recent decision to help arm the Peschmerga fighters in their battle against the so-called Islamic State.
Principled rejection of military engagement and criticism of the strategy presented by both the Minister of Defense and Foreign Affairs shaped Left Party and the Greens’ opposition to this latest decision. Disagreement over deploying aircraft and ships is also fueled by arguments less about the need to defeat ISIL and more about tactics and the effectiveness of military measures to solve the conflagration in Syria.
Yet one interesting and particularly German dimension of the debate last week was the question whether the decision was in fact legal according to German as well as international law. The government based its argument on several foundations. There have been three UN resolutions to confront IS in the Security Council. The French government referred to a never-before used clause to support obligations of EU members per the Lisbon Treaty—a version of the Article V of the NATO Treaty which calls for alliance members to support any member attacked. That clause had never been invoked before and was largely unknown to most Parliamentarians in Berlin. But the call for solidarity with France was all-pervasive.
One argument made reference to article 24 of the Germany Constitution which sanctions German participation in multilateral military operations even if they are not related to territorial defense.
Yet there was still another argument, brought to the floor by Norbert Roettgen, Chairman of the Foreign Relations Committee, which in many ways is even more important.
Article 87a of the Basic Law empowers Germany to act in its own self-defense when threatened, and it is in that context that Dr. Roettgen argued for the support of military engagement against ISIS. The importance of this argument resides in its emphasis that Germany is responding not only because of international obligations but also that it sees its own national interests under attack. Under such circumstances, Germany is acting as other national states would in an alliance against a common enemy.
Despite the heavily burdened discourse and debate in Germany about its leadership in Europe as well as the German public’s reflexive negative reaction to military engagements, Chancellor Merkel is in new territory with her decision. She runs the risk of losing more political support if this engagement results in German reconnaissance aircraft shot down or soldiers killed. She is already under critical scrutiny for her refugee policy decisions. Yet there was no way that she was going to refuse the request from Paris for help. That would not be done with more aid in Mali. This had to be a direct engagement against ISIS. There is more at stake.
What is required is not only solidarity, but also an argument that is based on Germany’s own security—that the attack on Paris was also an attack on Germany. In that context, Merkel is confronted on November 13 with the same solidarity challenge Gerhard Schroeder was looking at on September 11. Fourteen years ago, Germany’s response, which included military support in the Hindukush, was the best it could manage. Today the argument is repeated with an emphasis on the threats of ISIS.
Germany is now seen more widely as a European leader with foreign policy responsibilities that include engaging in a war. With Bundestag’s decision last Friday, that role has been publicly affirmed. It was a role with which the Federal President of Germany Joachim Gauck has confronted his fellow citizens. And it is one which Germany’s chief allies expect. But the struggle over strategy remains. It is the challenge to determine what can be effective in the battle. But it is also the challenge to persuade the German public that leadership includes fighting real enemies that may be far away but can become very near very quickly. Ultimately, it is about what Germany stands for together with its partners.
Responding to that challenge requires a combination of political will, military capacity, and, to be sure, solidarity with allies. It will also be necessary to underscore exactly what Germany and its allies are confronting in this conflict with IS. Arguing over the legal basis of engagement is not necessarily counter productive if it can clarify to a nervous public what is at stake instead of how to avoid involvement—a choice Germans really do not have.
It is likely that the decision for military engagement will be brought before Germany’s Constitutional Court in Karlsruhe. Yet as it was able to do in 1994, the court can use this case as an opportunity to help Germans in their strategic struggle to comprehend what leadership and responsibility mean in a dangerous world.