Defense case (Germany)
The defense case ( also called "V case" in the parlance of the Bundeswehr ) is the established legal status of the Federal Republic of Germany if its national territory is attacked with "armed force" from outside or if such an attack is imminent, which occurs very rarely. The state of defense is regulated in Section Xa ( to ) of the Basic Law. The regulations were inserted into the Basic Law together with some other changes ( emergency constitution ) by the “Seventeenth Act to Supplement the Basic Law” of June 24, 1968 ( Federal Law Gazette I p. 709 ).
The emergency constitution was extremely controversial and was enforced by the grand coalition (1966–1969) consisting of CDU / CSU and SPD against the resistance of the FDP and extra-parliamentary groups .
The Gehlen organization spoke of an e-system or an e-case .
Normal case (given ability of the Bundestag to act)
According to Bundestag ; the Federal Council must agree. The corresponding application must be made by the federal government . The decision in the Bundestag is made with a majority of two thirds of the votes cast, but at least with the votes of the absolute majority of the total number of its members. An absolute majority of votes is required in the Federal Council.GG, a state of defense involves “the determination that the federal territory is being attacked with armed force or that such an attack is imminent.” The establishment of a state of defense is incumbent on the
The attacking power does not have to cross the borders of the Federal Republic with troops. Long-range gunfire, for example, is sufficient to determine the attack.
Determining that an attack is imminent is problematic because it involves analyzing the political and strategic situation as well as the intentions of the potential attacker, always with the risk of misjudgment. In any case, there must be concrete suspicions that such an attack is likely to occur.
Formal determination in exceptional cases (inability of the Bundestag to act)
However, if the Bundestag is not in a position to pass a corresponding resolution, be it because there are insurmountable obstacles preventing its meeting or it is incapable of making a decision, the joint committee shall determine the state of defense provided that "the situation cannot be denied immediate action" ( para. 2 sentence 1 GG). The same rule applies to the quorum as to the Bundestag: two thirds of the votes cast, but at least the votes of the majority of the members of the Joint Committee, must approve the establishment of a state of defense.
This possibility of taking power by the joint committee was sharply criticized during the discussion about the emergency legislation: The regulation could combine the powers of the Bundestag and Bundesrat like a coup d'état and the actual constitutional organs could be switched off. However, the approval of the Bundestag must be obtained as soon as possible.
If an armed attack is already underway, but neither the Bundestag nor the Joint Committee can immediately determine the state of defense , the state of defense is deemed to have been decided and announced at the moment the attack began. This date will be announced by the Federal President as soon as possible.
If the state of defense is formally established, the Federal President shall announce this in the Federal Law Gazette. If this announcement is not possible in the Federal Law Gazette, the announcement is made in a different way, usually via the media. The statement in the Federal Law Gazette must be made up for as soon as possible.
Detection in the event of a terrorist attack
Since the beginning of May 2006 there have been plans by the federal government to classify a terrorist attack like the terrorist attack on September 11, 2001 as an attack by a hostile power with armed force on federal territory, which requires immediate security. This assessment is based on the fact that the UN Security Council assessed the attacks carried out on September 11, 2001 as a military blow and NATO regards it as a matter of alliance . Since it can be assumed that neither the Bundestag nor the Joint Committee would be able to take a decision in a timely manner in the event of a terrorist attack of this type, it could be a case under Paragraph 4 of the Basic Law after the state of defense has been established as having been met and than at the time when the attack began.
The aim of these plans is to preserve the content of the aviation security law , which was annulled by the Federal Constitutional Court and which contained the possibility of shooting down hijacked passenger planes, in compliance with the law. The BVerfG had ruled that the government was not allowed to weigh human lives against each other. According to Werner Heun (co-author of a legal commentary on the Basic Law), the state is already allowed to do so in the exceptional situation of a state of defense. If a terrorist attack with a civil aircraft is to be classified as a case of defense, according to Heun, it would be possible to shoot down an aircraft occupied by innocents.
According to the overwhelming opinion (as of 2020) a temporally and geographically limited terrorist attack as well as a cyber attack can only lead to a state of defense if the destabilization triggered by it threatens the existence of the state. In the event of a catastrophe, emergency regulations allow the Bundeswehr to be deployed in a specific manner inside without calling out a state of defense.
Statements under international law
As soon as the state of defense has been declared and the federal territory is attacked with armed force, the Federal President can, with the consent of the Bundestag or (in the event of its incapacity to act) with the consent of the Joint Committee, issue declarations under international law on the existence of a state of defense. In particular, he can declare that Germany is at war with the aggressor. The submission of these declarations is only permitted if the federal territory is actually attacked. If the case of defense is established in the normal procedure, but the attack has not yet taken place, this regulation does not (yet) apply.
Transfer of command and command
In the event of a defense, command and control over the Bundeswehr is transferred from the Federal Minister of Defense to the Federal Chancellor . This regulation is commonly known as " lex Churchill called" as Churchill in the UK of the Second World War had united all our skills up. This concentration of powers on the Federal Chancellor was controversial.
Change in legislative competences
Extension of legislative powers
With the announcement of a state of defense, according to legislate in competition even in those areas in which the Länder have jurisdiction in peacetime . Such laws require the approval of the Bundesrat, Paragraph 1, 2 of the Basic Law.Paragraph 1, 1 of the Basic Law, the Federation receives the right to
Furthermore, expropriations can be provisionally regulated and the regulations on the deprivation of liberty to the detriment of the citizen can be tightened according to (2) No. 1 GG. Likewise, in the event of a state of defense in order to ward off an attack by federal law, with the consent of the Bundesrat, the regulations on administration and the financial constitution can be drawn up differently from the rules applicable in peacetime, (3) GG. However, the viability of the non-federal levels must be maintained.
For this purpose, according to precautionary laws can be enacted, which only apply in the event of a defense. This is to ensure that well-considered regulations are already established in peacetime for the probably more chaotic time of the case of defense.(4) GG, various so-called
Shortening the legislative process
Likewise, in the event of a defense, laws that the Federal Government describes as urgent can be dealt with jointly by the Bundestag and Bundesrat. The announcement is also simplified: If it is not possible in the Federal Law Gazette under the given circumstances , it can initially also be made in another way, for example on the radio or in the daily press.
During the state of defense, laws which, due to the expanded legislative powers of the federal government, laws of the Joint Committee and laws relating to the Federal Constitutional Court, override any conflicting law. This does not apply to laws that have already been passed for the case of defense, in particular the precautionary laws. Here, too, limits should be placed on the power of the Joint Committee on the one hand, but also on the possibly hasty legislation during the war on the other.
Joint Committee laws and ordinances based on them shall expire no later than six months after the end of the state of defense.
Laws that deviate from the constitutional provisions on joint tasks and on certain articles of the financial constitution shall expire at the latest at the end of the second financial year following the end of the state of defense.
The Bundestag can repeal laws of the Joint Committee at any time. The approval of the Federal Council is required for this. The Bundesrat can request the Bundestag to vote on the repeal of such a law. Other measures of the Joint Committee or the Federal Government are to be revoked at the request of the Bundestag and the Bundesrat.
Position of the constitutional organs
The joint committee can determine with a majority of two thirds of the specified votes, but at least with the votes of the majority of its members, that the timely meeting of the Bundestag is prevented by insurmountable obstacles or that it does not have a quorum ( (2) GG). From this point in time, the joint committee assumes the position of the Bundestag and Bundesrat and uniformly exercises the rights of these two highest constitutional organs. The unicameral system applies.
The Joint Committee can therefore determine for itself that the conditions under which it becomes the Federal Republic's emergency parliament are met. This regulation aroused strong opposition in the decision-making process on the emergency laws. However, in the opinion of the Basic Lawmaker, this is the best way to guarantee the Federal Republic's ability to act and at least a certain degree of parliamentary control. In addition, the Bundestag, with the consent of the Bundesrat, has the right at any time to declare the case of defense to be over (Paragraph 2, Basic Law).
The powers of the joint committee are limited insofar as it cannot amend or repeal the Basic Law and also no laws relating to the European Union , the membership of the Federal Republic in intergovernmental organizations and the reorganization of the federal states ( Paragraph 2, Basic Law).
In the event of a defense, the federal government can deploy the federal police throughout the entire federal territory and issue instructions to the state governments and state authorities. The parliamentary bodies are to be informed of this.
If the Federal Chancellor has to be re-elected by the Joint Committee (because the previous incumbent is no longer able to continue in office), the Joint Committee elects a new Federal Chancellor with a majority of its members on the proposal of the Federal President . If the joint committee wishes to vote out the Federal Chancellor by means of a constructive vote of no confidence , this requires the votes of two thirds of the committee members.
Federal Constitutional Court
The constitutional powers and tasks of the Federal Constitutional Court may not be impaired during a state of defense ( Federal Constitutional Court has a kind of veto right against amendments to the law on the Federal Constitutional Court , provided that such an amendment law is to be passed by the joint committee. Until such a law has been passed, the Federal Constitutional Court can independently issue the regulations necessary to maintain its functionality. This is to prevent the chaotic conditions during the defense case from being used to shut down the Federal Constitutional Court in its entirety for a later time.1 GG). The
Terms of office
- the electoral term of the Bundestag and Landtag up to six months,
- the term of office of the Federal President or his representation by the Federal Council President up to nine months,
- the term of office of a member of the Federal Constitutional Court up to six months
extended after the end of the defense.
The dissolution of the Bundestag is excluded.
If the federal organs are unable to take the measures that are necessary to avert the immediate danger, the state governments have the powers that the Basic Law grants to the federal government in the event of a defense. Such measures can be revoked at any time by a federal government capable of acting again.
End of Defense
Termination of Defense
The case of defense can be declared ended by the Bundestag with a simple majority and with the consent of the Bundesrat. It must be declared over when there is no more attack on the Federal Republic and such an attack is no longer imminent. The Bundesrat can demand that the Bundestag decide to end the state of defense.
- Jarass, Hans D .: Defense case. In: Jarass / Pieroth: The Basic Law of the Federal Republic of Germany. Munich 2009, p. 1101ff.
- Agilolf Keßelring : The organization Gehlen and the defense of West Germany . 1st edition. 2014, ISBN 978-3-9816000-2-5 , pp. 17 ( uhk-bnd.de [PDF]).
- Art 115a of the Basic Law for the Federal Republic of Germany; last accessed on February 14, 2009
- Interview by Katharina Peters with Werner Heun: Terror attack in the Spiegel gray zone , October 8, 2008; last accessed on February 14, 2009
- Internal Security - Jung: Shoot down hijacked aircraft if necessary. Süddeutsche Zeitung, September 16, 2007, archived from the original on June 13, 2009 ; accessed on November 29, 2018 .
- 1 BvR 357/05 of February 15, 2006 - Decision of the Federal Constitutional Court on the Aviation Security Act (LuftSiG)
- German Bundestag: Defense case . State of Defense Section . Retrieved February 15, 2020
- Law on Simplified Announcements and Announcements of July 18, 1975 - VerkVereinfG ( Federal Law Gazette I p. 1919 ), which was last amended by Article 2 of the law of May 24, 2016 ( Federal Law Gazette I p. 1217 )
- Christian Starck (Ed.): Can there still be “just wars” today? Wallstein Verlag , Göttingen 2008, ISBN 978-3-8353-0261-7 .
- Axel Hopfauf , commentary on Art. 115a – 115l GG, in: Schmidt-Bleibtreu / Hofmann / Hopfauf, Commentary on the Basic Law , 12th edition, Cologne 2011, ISBN 978-3-452-27076-4 .