Legal Protections

Battis is a law professor at Berlin's Humboldt University.

DW-WORLD.DE: Does the Federal Constitutional Court have the power to undo the deployment of Tornados to Afghanistan?

Prof. Battis: No one can say for sure beforehand, but it would be a sensation if they did it. A particularity of the Bundeswehr is that it is a parliamentary army. It's not up to the ruling administration to decide on deployments as the president of the United States largely can do, but an issue for the parliament, and that's where there will probably be a correction here or there to be made.

Some, especially in the Left Party, are hoping for more than a correction. Can the Federal Constitutional Court really a play a main role in the Tornados' deployment?

The Federal Constitutional Court is not the only actor. Human rights and UN mandates and decisions are, of course, also involved, and they are not all completely justiciable for only the Constitutional Court. These are foreign policy decisions that are on the edge of what is constitutionally revisable.

Still, the court's ruling will have an influence on German foreign policy.

That the administration will not get away everything it wants is clear and obvious. At the beginning of the year it still said it could decide everything on its own and did not need parliamentary approval. That it did not need a new mandate for the Tornados and that everything was covered by the existing mandate. The court would probably have said: That's not the way things work. But the administration understood it and got a new mandate, but the government gave it a try and that's a grey area.

How willing is the Federal Constitutional Court to get involved in highly political questions?

There is no general answer for that. The general line is that it is not like the US Supreme Court, which can and does say "that's a purely political issue, we're not getting involved." The Federal Constitutional Court does not have that right under the German constitution. It has to decide on all the points of law brought before it -- no matter how political they may be.

Does that make it possible for the court to be abused to serve political goals? How can the court defend itself from being over politicized?

A very old saying from a previous president of the Reich's Court said to attempt to separate purely political issues from purely legal issues would be like trying to separate flowers into those that are poisonous and those that smell good. It's something the Federal Constitutional Court cannot do, even if it sometimes manages to on the sly. When it considers highly political question the court has at times said an issue needs to be respected as being within the margin of political decision making or the prerogative of political debate.