Article 12a of the Basic Law for the Federal Republic of Germany
The Article 12 of the Basic Law for the Federal Republic of Germany normalizes the service commitments and part of the first section Fundamental Rights .
Normalization
(1) Men can be obliged to serve in the armed forces, in the Federal Border Guard or in a civil defense association from the age of eighteen .
(2) Anyone who refuses military service with a weapon for reasons of conscience can be obliged to perform alternative service . The duration of alternative service may not exceed the duration of military service. The details are regulated by a law that must not impair freedom of conscience and must also provide for the possibility of alternative service that is not related to the associations of the armed forces and the Federal Border Guard .
(3) conscripts who are not used to a service referred to in paragraph 1 or 2 may, in the defense case be required of a law on civil services for the purpose of defense, including protection of the civilian population in employment by or reason; Obligations in public-law employment relationships are only permissible for the performance of police duties or such sovereign public administration tasks that can only be fulfilled in public-law employment relationships. Employment relationships according to sentence 1 can be established with the armed forces, in the area of their supply as well as with the public administration; Obligations in employment relationships in the area of caring for the civilian population are only permissible in order to meet their vital needs or to ensure their protection.
(4) If, in the case of defense, the need for civilian services in the civilian medical and medical sector as well as in the permanent military hospital organization cannot be met on a voluntary basis, women from the age of eighteen to the age of fifty-fifth can do so by law or on the basis of a law Services are used. Under no circumstances should you be obliged to serve with a weapon.
(5) For the period prior to the state of defense, obligations under Paragraph 3 can only be established in accordance with Article 80a Paragraph 1. In order to prepare for services according to paragraph 3 for which special knowledge or skills are required, participation in training events can be made compulsory by law or on the basis of a law. Sentence 1 does not apply in this respect.
(6) If, in a case of defense, the need for workers for the areas mentioned in paragraph 3 sentence 2 cannot be met on a voluntary basis, the freedom of Germans to give up the exercise of a profession or job can be granted by law or by to secure this need Restricted by law. Before the occurrence of a state of defense, paragraph 5 sentence 1 applies accordingly.
Historical background
Art. 12a GG deals with the duty of every German citizen. On November 12, 1955, the Bundeswehr was set upin the course of rearmament and general conscription was introduced with the entry into force of the Military Service Act (WPflG) of July 21, 1956. With the law amending the Basic Law of June 24, 1968, general compulsory service wasanchoredin Article 12a of the Basic Law. Since the introduction of the Basic Law in 1949, Article 4 (3) of the Basic Law stipulated that no one may be obliged to do military service.
Women were constitutionally prohibited from working with weapons. Article 12a, Paragraph 4 of the Basic Law stated in its original version - which existed from 1956 to 2000 - that women "may under no circumstances perform service with a weapon". The CDU politician Elisabeth Schwarzhaupt , who had been significantly involved in the drafting of this passage of Article 12a of the Basic Law, explained in 1956 the motives that had prompted the politicians in charge to write it as follows: "It was important to the legal committee that It is stated with programmatic emphasis in the Basic Law that our conception of the nature and destiny of women forbids service with a weapon. " In the words of a Spiegel analysis from the 1980s, the exclusion of women from military service carried out by Article 12a of the Basic Law was therefore not legally but morally motivated: "So [with Article 12a], eleven years after the war and evil memories of lightning girls and flak helpers , the nature and destiny of women in the Federal Republic of Germany are fixed: women as a receiving, rather passive refuge of peace - partner of active, defensive men. "
According to a ruling by the European Court of Justice in January 2000, this rule violates the principle of equality . Therefore, since 2001 women have not only been allowed to work in the Bundeswehr in the medical service or in the music corps , but also in combat units. After this judgment, Article 12a, Paragraph 4, Clause 2 of the Basic Law was amended by a law amending the Basic Law of December 19, 2000. The new wording was now: Under no circumstances should you be obliged to serve with a weapon.
Explanation
The compulsory service according to Art. 12a GG is of direct importance for all young men who until 2011 were called upon to do basic military service in the armed forces after school or training . Since the end of the Second World War, young women have no longer been drawn into compulsory service. Men who refuse to use the weapon for reasons of conscience have the option of doing community service. This can be done in all socially important institutions, e.g. B. in hospitals, old people's homes, kindergartens or in church organizations.
A large part of Art. 12a GG deals with civic duties in the case of defense. Conscripts who are not deployed in one of the areas mentioned above can then be used for civilian services. This can be, for example, the supply of military units or the protection or supply of the civilian population. Women between the ages of 18 and 55 must provide medical services if there is a need.
The state of defense represents a situation in which the rights to free exercise of the profession and the choice of job are only of limited validity. If the supply of labor for the civil services mentioned above is insufficient, the need can be met on the basis of public coercion. Germans would then be forced to do certain jobs.
Suspension of conscription
Since July 2011 conscription has been suspended and the Bundeswehr has become a pure volunteer army. This suspension only took place through an amendment to the Conscription Act (WPflG), without the constitution having to be changed. Such a procedure is constitutional, because Art. 12a GG only provides that men from the age of eighteen can be obliged to do military service . An introduction of compulsory military service is only permitted by the Basic Law, but not required.
Legal evaluation and criticism
Article 12a of the Basic Law is controversial among lawyers . It is noted that compulsory military service or general service is unconstitutional constitutional law.
It is noted that Art. 12a GG after Art. 1 GG constitutes a violation of the prohibition of forced labor as part of the guarantee of human dignity .
It is noted that Art. 12a GG violates the principles standardized within the framework of the eternity guarantee ( Art. 79 Para. 3 GG). Above all, Article 3 (2) of the Basic Law is cited, in which equality between men and women is guaranteed and the state is obliged to work towards eliminating disadvantages for one gender. Art. 12a GG, however, imposes duties of considerable consequence on men that are not imposed on women.
It is also noted that, according to Article 12, Paragraph 2 of the Basic Law , Germans may only be called upon to perform a public service obligation that is the same for all .
Individual evidence
- ↑ Der Spiegel: Soldiers - the Nation's stopgap, May 7, 1984.
- ↑ BGBl. 2000 I p. 1755
- ↑ Saar Databank on Article 12a , accessed on October 12, 2012
- ↑ Articles 11 to 19 of the Basic Law , to 123recht.
- ↑ Abolition of compulsory military service now sealed by the Federal Council , Juraexamen.info, accessed on October 12, 2012.
- ↑ Abolition of compulsory military service now sealed by the Federal Council , section: Art. 12a GG as unconstitutional law
