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The Role of Parliament in Times of War of Aggression - A German reflection

By Philipp Dürr
November 24, 2022
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By Kyle Matthews and Marie Lamensch

This op-ed written by Philipp Dürr is part of MIGS' Global Parliamentary Alliance Against Atrocity Crimes (GPAAAC) initiative supported by the Konrad Adenauer Stiftung Canada. Philipp Dürr is a research assistant at the Institute for Public International Law of the University of Bonn.

In our discussion, we seek parliamentary responses to Russian crimes in Ukraine, borne of the understanding that we all have a responsibility to react. However, to develop effective reactions, it is important to look at the political power relations in the respective parliamentary system in relation to foreign policy decision-making processes.

In this context, it is particularly evident in Germany that the legal and practical possibilities for parliamentary influence are often limited. It is true that the Bundestag, as the heart of democracy, is the body that elects the chancellor and can also vote him out of office (see Article 67 of the Basic Law). However, voting out a chancellor and thus his or her government as a parliamentary ultima ratio is hardly politically enforceable and, especially among the German population, which is characterized by a historical yearning for stability[1], is also undesirable. The true concentration of power lies in the chancellor's office, a fact that has repeatedly become clear in recent months, but which has also been expressed time and again before in the familiar expression of "chancellor democracy”.

Under constitutional law, too, decision-making power in matters of foreign and security policy rests on the executive side. Under Article 59 (2) of the Basic Law, the Bundestag has only ratification rights, especially in the case of international treaties; the power of decision and initiative lies with the federal government. In its Pegasus[2] ruling, the Federal Constitutional Court also emphasized that although Parliament and the Government form a "decision-making alliance", the Government has the decision-making authority in urgent matters. The Chancellor leads the government. The accompanying parliamentary instruments are limited to rights of speech, questioning and information, as well as parliament's budgetary rights and the power to set up committees of inquiry. Moreover, since the Federal Constitutional Court's out-of-area[3] ruling, the Bundestag has the power to decide on the deployment of the Bundeswehr in foreign missions. This is undoubtedly an important parliamentary instrument of power in matters of security policy - but here, too, the strategic decision on deployment will probably never come from the Bundestag itself.

The Chancellor also sets the guidelines for German foreign and security policy. In this context, Olaf Scholz's speech about the "Zeitenwende" on February 27 raised expectations at home and abroad and presented parliament with a fait accompli, in which it was only involved in terms of concrete implementation. In his speech, for example, the Social Democratic chancellor not only committed himself to NATO's 2% target, but also announced a special fund of 100 billion euros[4] to equip the Bundeswehr.[5]

Parliamentary initiatives to support Ukraine, on the other hand, were partly ignored and partly smiled at by the Chancellor's Office. After three parliamentarians[6] demanded the delivery of heavy weapons following their trip to Kiev in mid-April, it became clear that the Chancellor's Office was pursuing its own agenda - beyond the parliament and its protagonists.

Yet it is precisely in these times that interaction between the chancellor's office and a self-confident parliament would be important. Germany is undergoing a process of security policy maturation that was announced with the “Zeitenwende” but is far from being filled with life. In the past, breaches of law and acts of aggression (think of Crimea) were followed only by political condemnations and an emphasis on international law, accompanied by minor economic sanctions.[7]

The war crimes in Ukraine require different and strong responses, but as shown, these can only be partially implemented through parliamentary work and cooperation. Primarily, the focus must be on providing full support to Ukraine as quickly as possible. But this issue is at the core of executive responsibility.

It would be important and practical for parliamentarians as legislators to share their experiences with national criminal laws in prosecuting war crimes. For example, Ukraine must be supported to the best of its ability in investigating and prosecuting war crimes. Already, war crimes committed can be prosecuted in national courts in accordance with the principle of universal jurisdiction and before the ICC. Here, Germany is showing itself to be an important partner and pioneer regarding the conviction of a Syrian for state torture (crimes against humanity) before a German court in early 2022 in accordance with the principle of universal jurisdiction.[8]

According to the Attorney General, such proceedings should also be conducted against Russian war criminals.[9]  The parliamentary exchange on the legal requirements and hurdles of these proceedings should lead to effective prosecution of Russian war crimes under the rule of law. Other options, such as the establishment of an ad hoc tribunal for crimes of aggression under Article 8bis of the Rome Statute or the possible exclusion of Russia from the UN Security Council, would be primarily subject to the initiative and policy-making powers of the executive branch.

In all these considerations, the Bundestag has only an accompanying role. Foreign action is largely characterized by administrative activity, which is the core area of executive responsibility of the government. Of course, members of the Bundestag can and should try to exert political pressure on the government through speeches, committee work and media presence. But as long as they are not prepared to refuse the chancellor parliamentary allegiance if necessary, these instruments will only peripherally - but still? - influence. Joint parliamentary initiatives with allies are desirable, but they require realistic power-political expectation management. If parliamentarians in the Bundestag act hesitantly, a hesitant federal government need not to be concerned. In these times, it would be important to defend Ukraine and the rules-based world order vociferously and effectively. A future world order that is shaped by law and not by the law of the strongest needs vocal advocates who are prepared to defend this order.

 

 

[1] Five elections were held between 1928 and 1933: https://www.kas.de/de/web/geschichte-der-cdu/wahlen-zum-reichtag-in-der-weimarer-republik-1919-1933-

[2] BVerfGE 140, 160.

[3] BVerfGE 90, 286.

[4] https://podcasts.apple.com/ca/podcast/human-rights-talks/id1483243995?i=1000587008540

[5] Further analysis: https://warontherocks.com/2022/05/making-the-sea-change-real-what-germany-and-allies-can-do/

[6] Michael Roth (Committee on Foreign Affairs), Anton Hofreiter (Committee on Europe) and Marie-Agnes Strack-Zimmermann (Committee on Defense).

[7] Ulrike Franke’s Analysis from 2021 clearly describes the problems of German debates in the area of defense policy: https://warontherocks.com/2021/05/a-millennial-considers-the-new-german-problem-after-30-years-of-peace/

[8] https://www.deutschland.de/de/topic/politik/weltrechtsprinzip-in-deutschland-prozess-um-staatsfolter-in-syrien

[9] https://www.lto.de/recht/justiz/j/generalbundesanwalt-ukraine-krieg-russland-kriegsverbrechen-ermittlungen-bka-eurojust-istgh/





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