Judgment of the Second Senate of 7 May 2008 (AWACS II) (German Constitutional Court)

On February 19, 2003, member states of the North Atlantic Treaty Organization (NATO) stationed Airborne Warning and Control System (AWACS) aircraft in Turkey to protect against the potential of attacks from Iraq. As a member of NATO, the federal government, or Bundesregierung (defendant), deployed military troops to Turkey to participate in the AWACS missions. The AWACS missions were authorized only to monitor the war in Iraq but not to take any action that would have affected Iraqi territory. The troops were deployed on February 26, 2003. The Bundesregierung did not apply for Bundestag approval of the deployment as required by the Basic Law. In March 2003 the Bundestag applied to the German Constitutional Court for a determination that the Bundesregierung had violated the Bundestag’s constitutional rights and for a temporary injunction barring the participation of the German troops until the Bundestag had formally approved the deployment. The court denied the motion based on the practical consequences of a German withdrawal rather than legal doctrines. The deployment ended on April 17, 2003. The Bundestag continued its application despite the end of the deployment. The Bundesregierung argued that Bundestag approval was unnecessary for participation in the AWACS flights because the agreement to participate was an exercise of the Bundesregierung’s authority in foreign relations, not a military deployment. The Bundestag argued that the Basic Law required Bundestag approval for all deployments outside the borders of Germany.