Merkel’s “We Can Do It!” Perhaps Not!

Inside Germany, the debate over refugees is fast becoming a constitutional crisis. Abroad, it has turned into a foreign policy crisis.

Chancellor Merkel’s welcoming culture statement “We can do it” (“Wir schaffen das!”) has upset Germany’s European partners, who are wary of her curious mixture of profound ethics paired with self-righteousness, high-handedness and naiveté.

The dangerous fuse between these two dimensions is that her own party — not only her political base, but for long also a kitten in her palm — is now openly questioning her leadership and sense of realism, if not truthfulness.

In addition, Germany, the indispensable European power, is now facing a test over finding out honestly and without self-imposed blinders just who the refugees are. The attacks on women in Cologne on New Year’s Eve were the catalyst to speak frankly about immigration.

The constitutional dimension

The chancellor’s “welcoming culture” statement in light of the civil war in Syria has strong constitutional roots. The first article of the German constitution commits the government to protect and promote human dignity.

In a direct reflection of the country’s Nazi period, human dignity is declared inviolable. Germany’s constitutional commitment to the inviolability of human dignity is a defining element of its political culture. Fear is a bad advisor.

The commitment to the refugees that Germany is open for them may seem romantic. It is not. Civil war in Syria and the collapse of stability in the region has implications for the geopolitical order complicated by Islamic State terrorism.

The resulting crises include the expansion of terrorist attacks in Europe and the arrival of a million refugees fleeing Syria.

Where Merkel has faltered is in not making a proper distinction between people who are persecuted for political, religious and other reasons – and who are thus entitled to asylum under the German constitution – and those who are refugees from war zones.

Forgetting the distinction

The latter have the (temporary) right to refuge under the UN Convention on Refugees, the key legal document in defining who is a refugee, their rights and the legal obligations of states.

Their fundamental human rights are to be universally protected under the UN International Declaration on Human Rights. The law sets the rules.

Former Constitutional Court Justice Udo Di Fabio has just written a report on the migration crisis and calls it “a constitutional problem.”

According to Di Fabio, Merkel’s policy created a direct constitutional conflict with the obligation to protect the country’s territorial integrity and democracy, a core function of any state. Given the largely undiminished inflow of refugees, the urgency to address the refugee problem is growing.

Germany’s constitutional obligations for human dignity and asylum, Di Fabio says, must be weighed against the protection of the borders and Germany’s territorial integrity. The failure to do so undermines democracy.

Over-promising and under-delivering

Fear is spreading that ISIS terrorists will be imported into Europe and more attacks such as the Charlie Hebdo, or the November 13, 2015, Paris attacks will spread throughout Europe.

Terrorist assaults in Paris produced fear among the public that another attack could come anywhere and anytime.

Merkel is confronted with a political rebellion at home because, among the million refugees Germany has accepted, some have committed crimes that feed populist and right-wing extremism in Germany. After the attacks in Cologne, there is no denying criminality among some refugees.

Germany’s laws were just changed to allow for early deportation, but for the several thousand already waiting return to their countries, the legal changes will not suffice.

Germany, a country of rules and proud of its rule-of-law culture, will keep the federal government’s commitments to protect and promote human dignity and the right to asylum.

Nevertheless, given that the legal questions are certainly fiendishly complex, the outcome of a potential constitutional complaint is unknowable.

The heart and soul of German politics

Chancellor Merkel bet twice on public acceptance of her wisdom. She announced an accelerated end to nuclear energy generation in Germany, after the Fukushima nuclear disaster. She won that bet for German leadership in alternative energy.

The second bet, Chancellor Merkel’s welcoming culture policy, in effect, was seen as an open invitation to refugees not just from the Syrian civil war, but pretty much from anywhere, to come to Germany because they would be “welcomed.” That policy has hit a brick wall.

European Union member states balked at taking refugees and sent them on to Germany. Local communities’ social services offices were overwhelmed by the flood of people. The backlash against the refugees has grown dangerously.

The Chancellor faces a constellation of legal, political and societal forces demanding stemming the uncontrolled flood of refugees. Police and military measures alone will not suffice to contain the threat.

German Muslim, Christian and Jewish communities should join in a common effort to support tolerance, if it is truly the heart and soul of German politics.

Criminals among the refugees need to be arrested, tried and, if convicted, deported. Germany’s borders must be controlled or closed quickly. Merkel needs to win EU support on resettlement of refugees.

German foreign and security policy must soon show results from initiatives to stop refugees before they flee to Europe. That is the truly gigantic bet Merkel has been making. We will very soon find out about the outcome of that bet.