After the terrorist attacks in France and the responses by both police and military, the question of whether it is ever permissible for the armed forces in tandem with police to undertake operations inside the country arises again in Germany.
According to Article 87a of the Basic Law (Germany’s constitution) and, in certain emergency situations, Article 91, Paragraph 2 allows German armed forces to act in a state of defense, or a state of tension, to protect civilian property.
Additionally, military actions are possible in accordance with Article 24, Paragraph 2, for example, if the measures are taken within the framework of international alliances (the United Nations, NATO, European Union).
After terrorist attacks in the United States on September 11, 2001, the U.S. called its NATO partners to action based on Article 5 of the NATO treaty, which led to German military actions against al-Qaeda and the Taliban in Afghanistan. Something similar could happen following the IS attacks in France since the French government has sought support from E.U. partners in accordance with Article 42 of the E.U. treaty.
In both cases, German armed forces were – or could be – used for foreign interventions against terrorists, but the same is not true in case of terrorist attacks inside Germany.
Domestic use of Germany’s armed forces is allowed by Article 35, Paragraph 2, only in the case of natural catastrophes or particularly severe accidents. In such situations, the armed forces are allowed to help police and other intrastate authorities in accordance with the Basic Law.
Terrorist attacks, however, are not included in the framework and continue to be considered in Germany as a task reserved exclusively for the intrastate police.
In Germany, terrorist attacks still are considered to the responsibility of the police, but such a perspective no longer corresponds to current circumstances and dangers.
This legal situation is highly questionable and, in the eyes of many Germans, in urgent need of reform. Terrorist attacks such as those in the United States and France are essentially warlike in nature. Indeed, French President François Hollande rightly speaks of “war.” German President Joachim Gauck has used similar terminology with equal justification.
Today, the international security situation is determined principally by so-called “asymmetrical wartime” constellations ranging from civil wars to transnational terrorist campaigns, but these forms of violence are not included in the classical definition of war under international law. Thus, they are excluded from defense in the sense of Article 87a of the Basic Law.
“War” in that case is defined by one country attacking another and requiring the necessary military defense. In Germany, terrorist attacks still are considered to the responsibility of the police, but such a perspective no longer corresponds to current circumstances and dangers.
After the September 11 terrorist attacks in the United States, German federal lawmakers made provisions in the law allowing the air force to shoot down a plane that was hijacked or in some other way intended for use in a terrorist attack. But on February 15, 2006, the Federal Constitutional Court declared the law unconstitutional – with an egregious lack of common sense, in my opinion. Since then, there are no constitutional or legal provisions in Germany allowing the use of military resources in terrorist attacks.
This must change and quickly if Germany wants to remain capable of defending itself against terrorists. Following the 2001 terrorist attacks in the U.S., Germany’s armed forces were used against the Taliban and al-Qaeda in Afghanistan through the alliance provision of Article 24, Paragraph 2. And, after the attacks in France, German armed forces may well be utilized against IS terrorists on the basis of Article 42 of the E.U. treaty. In other words, the German military can be active abroad in response to terrorist attacks, but within Germany, it would be prohibited from taking any action.
There is an urgent need for a constitutional change that either expands the definition of administrative help in Article 35, Paragraph 2 to include “combating of terrorism” or extends the concept of “defense” in Article 87a to allow the military to respond to the current forms of asymmetrical-terrorist warfare.
Only if this happens quickly can Germany be assured that not only the police, but also military units can be used against terrorists and their attacks in Germany. This is a genuine need and not a step toward the “militarization” of civil society as critics complain. Indeed, civil society has a right to expect the state will intervene with all means possible to protect citizens and guarantee their legal security.
This includes the German armed forces, at least in cases where the defensive measures of police are not enough.
To contact the author: email@example.com