Military command

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A military order is any instruction to a certain behavior that a military superior gives a subordinate orally , in writing or in some other way in general or for the individual case and with the right to obedience .

General

Military orders are an instrument for exercising internal leadership in the Bundeswehr . In every army, orders are used to enforce the superior's will, which takes the war objective into account . Commands are used in war , ultimately gaining the victory over the enemy or the defensive war of the successful defense of a war of aggression . Thus commands are followed, subject soldiers a duty to obey . Command and obedience serve two complementary functions in military organizations. Anyone who has authority is called a commander or, with the highest rank, commander in chief .

Legal issues

General

The command is a legal term that occurs in particular in the Soldiers Act (SG), the Superiors Ordinance (VorgV) and the Military Penal Act (WStG). The SG does not define the term “command”, but assumes it has the same content as it is specified in Section 2 No. 2 WStG. According to this, an order is an instruction to a certain behavior, which a military superior ( § 1 Abs. 3 SG in connection with § 1 Abs. 1 VorgV, § 4 Abs. 1 VorgV) to a subordinate in writing, verbally or in some other way, in general or granted for individual cases and with the right to obedience. Commands “in another way” can be hand , light or flag signals, signals with a trumpet or whistle, provided that it can be assumed that the command content is sufficiently clear for superiors and subordinates.

The legal definition also corresponds to the established case law of the Federal Administrative Court (BVerwG). In the judgment quoted above, a lieutenant colonel was ordered to take “leave only in the camp”. While his unit was on a mission abroad in Afghanistan, he acted against the orders of his disciplinary superior and instead spent his vacation in an environment in Afghanistan classified as dangerous for security reasons. As a disciplinary measure , the soldier was banned from transportation for a period of four years for a service offense and his salary was reduced by 10% for a period of two years.

Superiors may only issue orders for official purposes and only in compliance with the rules of international law , statutes and service regulations ( Section 10 (4) SG). In addition, the rule of law requires that an order must not disproportionately restrict the basic rights of the soldier . The purpose of the service and the interference with the soldier's rights must be weighed against one another. Here, of course, different standards are to be applied in combat than in peacetime. The supervisor is responsible for his orders responsibility . An order is to be written in a concise and understandable manner, to be structured and to be labeled according to its purpose. He has to enforce orders in a manner appropriate to the circumstances ( Section 10 (5 ) SG ). The soldier must obey his superiors. To the best of his ability he must carry out your orders completely, conscientiously and immediately.

species

The SG distinguishes on the one hand between commands that must be obeyed ( binding commands ) and on the other hand commands that do not need to be obeyed or may not be obeyed ( non-binding commands ). Illegal orders are non-binding if they violate human dignity , have not been issued for official purposes or result in the commission of a criminal offense ( Section 11 (1) sentence 3 SG). Further non-binding reasons have been developed through case law.

The Basic Law and the Soldiers Act give rise to legal limits to military authority. These can be summarized in seven subgroups, the prerequisites and mutual relationships of which, however, have not yet been adequately clarified:

  1. Orders that violate human dignity do not have to be carried out ( Section 11, Paragraph 1, Clause 3, Clause 1, Alternative 1 SG). This is the case if, as a result of the order, the subordinate or a third party affected by the execution of the order is exposed to treatment that expresses contempt or disregard for the value attributed to the person because of his personhood.
  2. Orders that were not given for official purposes do not need to be obeyed (Section 11, Paragraph 1, Clause 3, Clause 1, Alternative 2 SG). An order is only given for “official purposes” if the military service requires it in order to fulfill the tasks of the Bundeswehr as defined by the constitution.
  3. Orders are non-binding even if compliance with them would result in a crime . This includes all orders, the execution of which would constitute a criminal offense under German criminal law . These are also orders that pose a threat to the health and physical integrity of the soldier.
  4. Orders which are suitable and which are issued with the intention of disturbing the peaceful coexistence of peoples, in particular to prepare for the conduct of a war of aggression, are legally non-binding in accordance with Article 26.1 sentence 1 of the Basic Law and must not be followed.
  5. An order is also non-binding if its issuance or execution violates the “general rules of international law ” ( Art. 25 GG). The subordinate must obey these rules in lieu of the order given to him.
  6. A military order is also non-binding for a subordinate if it cannot be expected to be carried out after considering all relevant circumstances . This applies in particular when subordinates can invoke the protection of the fundamental right to freedom of conscience .
  7. Further non-binding orders are orders that cannot be carried out due to objective impossibility , orders in the presence of an emergency justifying beyond the law or orders in which the situation has fundamentally changed.

The duty of obedience ( § 11 Paragraph 1 SG) is not limited to lawful orders. Illegal orders must also always be obeyed. Only if the execution of the order would result in a criminal offense may the order not be obeyed ( Section 11 (2) SG). If the subordinate obeys the order anyway, he has to fear the corresponding criminal consequences. The prerequisite, however, is that he recognizes or that it is obvious from the circumstances known to him that he is committing a criminal offense ( Section 11 (2) sentence 2 SG). Even filing a complaint does not exempt you from the obligation to obey orders that may be illegal ( Section 3 (1) sentence 2 WBO ). Even if a complaint is filed, the subordinate acts contrary to the duty of service if he does not obey a military order, provided that there are no non-binding reasons.

When it comes to the claim to obedience required by law, a distinction must be made between the objective claim that exists under the law and the subjective claim of the commanding person. The command “Give me a beer!” Has no objective claim to obedience (this must not be ordered), but the superior may have intended it as an order. On the other hand, the statement "Knock on wood!" (E.g., so that something goes well) may objectively have the claim to obedience, but is not an order because the superior did not mean it as an order and does not claim obedience himself.

Command types

According to the scope

command

A command is a formula command that does not leave the subordinate with any discretion . It is usually specified in the wording of the Central Service Regulations (ZDv) for certain activities and must be carried out immediately. Commands can also be transmitted in the form of acoustic or optical signals (e.g. whistle, hand signals, flashing signals). In addition to the commands for including drill ( At ease! , Eyes left! , Right around! ) Various instructions to drivers ( drivers, engine on! ) Or z. B. the fire command ( fire free! ).

assignment

A military mission includes an order. It describes a goal to be achieved in a certain period of time and / or in a certain space and the intention pursued by the leadership with it. It allows the recipient extensive freedom of action in the implementation and in the choice of the means to be used. It therefore requires your own judgment and determination as well as independent, responsible action. The person placing the order can also impose further conditions on him (“by no later than ...”, “but not ...”, “comprehensive right ...”, “together with ...”). Orders are not tied to any particular form.

Instruction

An instruction contains an order. It often only indicates the overall intention of the superior, the objective in general and is usually valid for a longer period of time. It allows the recipient extensive freedom of action in the implementation and in the choice of the means to be used.

Official instruction

Official instructions encompass more than military orders. In addition to the form of orders, they are issued as instructions, official orders or guidelines. The authority to issue instructions for official purposes and the obligation to follow them result from the subordination relationship . They have the purpose of expressing the superior's will in terms of content, direction and form in such a way that his intention is achieved through the execution of the official instructions. As far as possible, every official instruction should contain instructions and instructions for the execution and leave the subordinate room for his own discretion. Within this discretion he can decide on the type, place and time of the execution on his own responsibility. Official instructions are to be forwarded to the recipient via official channels . If, in exceptional cases, it is necessary to give official instructions by bypassing official channels, the intermediaries must be informed immediately. If subordination and subordination differ from one another in the particular area of ​​responsibility, the involvement of the other superior department (s) in each case must be regulated in service instructions or orders for the reporting system in the case of instructions and orders.

Operation commands

Operation commands are structured according to the pattern shown above and can be issued as a single command or as an overall command . Individual orders are addressed only to one or some of the subordinate troops and only contain those points that are important for those affected. They have the advantage that orders can be issued quickly in the order of urgency. General orders inform all subordinate troops in the same way and at about the same time. They are mainly given at the beginning of an operation or when confusing circumstances have to be rearranged. If possible, operational commands should be prepared using preliminary commands . Preliminary orders are given in order to prepare the troops for new tasks at an early stage, before their own planning or giving orders is completed.

A distinction can be made between battle commands ( command for the defense ), commands for the regulation of operational support (BREU) or command support (BRFU) and other types of commands. There are special command schemes for various special jobs so that no important points are forgotten. Examples of this are the order to the alarm post , order to the scouting party , order to secure, order to take in, order to detect chemical warfare agents and others.

In an operation order, orders represent the core. They determine the goal and are the starting point for thinking and acting. Therefore, the essential requirement of an order is that the will of the superior must be clearly expressed.

According to the content

The driving order (today: driving order ) is the written or oral command issued by a superior to the driver of a (ground-based) military vehicle to carry out the transport of material or soldiers on a specified route with one or more specific vehicles . A march order instructs one or more soldiers or a unit to move to a specific position or location.

Company orders contain the announcement of promotions , disciplinary penalties , orders , transfers , etc. to the company and are announced by the company commander or the company sergeant in front of the troops. It is not an order, but a message from human resources to the troops. The order of the day is issued by the Minister of Defense or high military leaders on special occasions and militarily significant events and usually contains the official statement of the employer . Again, it is not an order, but messages to the troops, which are usually intended to convey the assessment of an event, memorial day, etc. to the addressees.

At roll call in armies , companies, battalions and sometimes regiments come to roll call. For companies (and batteries ) the daily routine begins with roll call. The company sergeant major and the company commander greet the soldiers and check that they are complete and that the equipment ordered is complete ( roll call , arms roll call ).

Fuehrer's order of August 23, 1944 ("rubble field order")

This “ Führer order ” from Adolf Hitler was issued to Dietrich von Choltitz , the city commander of Paris : “The defense of the Paris bridgehead is of decisive military and political importance. [...] Within the city, measures must be taken with the sharpest means against the first signs of rioting. B. Blasting of city blocks, public execution of the ringleaders, evacuation of the affected district, as this is the best way to prevent spread. The Seine bridges in the Paris area ”( Seine bridges must be prepared for demolition. Paris must not fall into the hands of the enemy, or only as a field of rubble. ) Von Choltitz decided to refuse to give orders ; he capitulated on August 25, 1944 and surrendered Paris, which remained almost undamaged.

Command scheme

Orders (in the narrower sense) should be given in a fixed form, called a command scheme. It is not left to the commanding person how he commands. This primarily serves to standardize the sequence of the various command components in an expedient manner and relieves the issuer of the task of looking again and again for an expedient form.

Orders are given by all NATO allies according to a standardized agreement ( STANAG 2014).

If useful and necessary, statements are to be made in commands on the following points:

  1. location
    • Enemy ( strength, type, behavior, presumed intention )
    • Own position ( position, mission and intention of the higher-level unit )
    • Subordination and charges ( of troops, based on their own unit )
    • Civilians (presence, hazard potential)
  2. assignment
    brief description of your own mission
  3. execution
    • Own intention with planned operation management
    • Orders to the subordinate troops ( subdivided according to troops / troop allocation: who should do what where? )
    • Security and combat reconnaissance
    • NBC defense
    • Air defense / air defense
    • Coordination measures ( e.g. approach )
  4. Mission support
    important measures and facilities of supply
  5. Leadership support
    Details of communications, identification symbols, position of the command post ...

The acronym LADEF, bw. LAD for the short form without information on operational and command support.

Legal consequences

Since armed forces are based on the principle of command and obedience, willful disobedience is always a very serious misconduct that is based on a refusal to obey . Knowingly and willingly disobedience to an order is at the same time a deliberate violation of the internal duty of conduct under Section 17 Paragraph 2 Clause 1 SG, because disobedience seriously damages trust in the integrity and reliability of a soldier. The duty from Section 17 (1) SG requires the soldier to be self-controlled in the military structure, subordinate to the law and the stipulated subordinate relationships and comply with the military order. According to Section 17 (1) SG, subordinates are required to recognize the official authority of their superiors regardless of personal sympathies or antipathies and to act accordingly. For a violation of Section 17 (1) SG, it is sufficient that the soldier in question violates an existing duty towards superiors with his behavior and shows that he does not want to subordinate himself to the official authority of his superiors.

The violation of the duty of obedience ( § 11 SG) has various consequences. Here against a culpable G represents a misconduct is provided with a disciplinary action (z. B. THE SERVICE reference , fine , criminal arrest to transport prohibition degradation or removal from the service ratio) will be punished inner official may , but not must . In the event of minor violations, the act can be responded to with an educational measure (e.g. reprimand, written draft or repeat service). In particularly serious cases, there may also be a military crime. If the disregard of the duty of obedience causes a serious consequence (disobedience) or if obedience is refused by word and deed (refusal of obedience), the act can be punished with imprisonment.

Anyone who does not obey an order and thereby at least negligently ( Section 19 (1) WStG) or recklessly ( Section 21 WStG) causes a serious consequence ( Section 2 No. 3 WStG) is punished with a prison sentence for disobedience. Anyone who refuses to obey an order by revolting against it with word or deed or who insists not to obey an order after it has been repeated is punished with imprisonment of up to three years for refusing to obey ( Section 20 subs. 1 WStG). In the cases of Sections 19 to 21, the subordinate does not act unlawfully in accordance with Section 22 (1) WStG if the order is not binding, in particular if it is not issued for official purposes or if it violates human dignity or if a criminal offense has been committed by following it would. This also applies if the subordinate incorrectly assumes that the order is binding.

The duty to serve faithfully from § 7 SG can also be violated by poorly fulfilling the command. In general, however, a soldier is only obliged to serve up to the limit of his physical and mental capabilities .

If a soldier obeys an unlawful order with knowledge of the unlawfulness without facing a current threat to life or limb, he cannot later invoke the so-called imperative to order , with which many war criminals tried to justify their crimes after the Second World War . If, on the other hand, the soldier does not recognize that it is an illegal act, acting on command according to § 5 WStrG leads to an excuse .

Command responsibility

The superior is always responsible for orders ( Section 10, Paragraph 5 SG). If he culpably issues unlawful orders, he too commits an official offense that can also be punished with discipline. In addition, under certain circumstances he must be liable for the consequences if the Bundeswehr suffers damage and pay compensation . In severe cases, criminal law consequences can also arise here if the superior intentionally misuses his authority to issue orders. Furthermore, the line manager is obliged to “implement orders appropriately” ( Section 10 (5) SG). This is not only about orders that he has given himself, but he must also ensure that the orders that other superiors have given for the service he is responsible for are obeyed.

International

In the Swiss Army , command and obedience are the clearest expression of military leadership. The order is regulated in the service regulations of the army (DRA), which does not legally define the term. According to Art. 20 Para. 2 DRA, orders, reports, applications and requests are made through official channels . According to Art. 21 Para. 1 DRA, superiors and the management assistants commissioned by them have the right and the duty to issue orders in official matters. The subordinates are obliged to obey. According to Art. 79 Para. 3 DRA, order givers are not allowed to issue orders with the aim of violating human dignity. Higher-ranking officers who are not also superiors have no command authority in foreign command areas ( Art. 22 Para. 4 DRA). The order of the day regulates the activities of the troops for each day of service. It must be accessible to all members of the formation concerned. It should only be changed in exceptional cases ( Art. 46 Para. 1 DRA). The deployment order for the guard service regulates in detail the order, rights and duties of the guard ( Art. 75 Para. 1 DRA). The members of the army are obliged to obey their superiors and other authorized officers in official matters according to Art. 80 Para. 1 DRA. You must carry out their orders completely, conscientiously and in a timely manner to the best of your ability.

In the Austrian Armed Forces , the power of command is regulated in the General Service Regulations for the Austrian Armed Forces (ADV). According to § 2 No. 4 ADV, orders are “all orders ( commands and prohibitions ) made by superiors towards subordinates regarding a certain behavior”. According to § 2 No. 5 ADV is a "superior who has the right to give orders to those soldiers who are bound by his orders on the basis of this order (subordinates)" based on special orders (laws, ordinances, organizational regulations, service instructions and orders). . According to § 6 Abs. 1 ADV, the superior may only issue orders that are related to the service. If the service requires it, he is obliged to give orders. Orders that violate human dignity or the observance of which would violate criminal law regulations may not be given. Commands must be formulated in such a way that they can be easily understood. If there are doubts as to whether the wording of an order was correctly understood by the recipient of the order, it must be ordered that the latter must repeat the wording. If several orders are contained in an order, it must be clearly stated which order deserves priority (Section 6 (4) ADV). According to § 7 Abs. 1 ADV, every subordinate is obliged to obey his superiors. He has to carry out the orders given to him to the best of his ability completely, conscientiously and punctually.

The command is also right in the Anglo-American area ( English order ) and in the NATO largely unified. If an order from the NATO Military Committee has been submitted to the national commander, he must first check the order for compliance with national and international obligations, release it if it agrees and pass it on to the national commander of his troops. The German and other NATO armed forces are not subordinate to the NATO commander in the sense of the command relationship under Section 11 (1) SG, but only have the order to cooperate with NATO.

See also

literature

Web links

Individual evidence

  1. ↑ Volker Gerhardt, Vom Willen zur Macht , 1996, p. 234
  2. ↑ BVerwG, judgment of June 22, 2004, Az .: BVerwG 2 WD 23.03
  3. ↑ ZDv 1/50 No. 302
  4. ↑ BVerwG, judgment of June 21, 2005, Az .: 2 WD 12.04 = BVerwGE 127, 302 , 310 ff.
  5. ↑ BVerwG, judgment of June 21, 2005, Az .: 2 WD 12.04 = BVerwGE 127, 302, 318 ff.
  6. ↑ BVerwG, judgment of June 21, 2005, Az .: 2 WD 12.04
  7. ↑ Holger Rostek, The legally non-binding order , 1971, p., 25
  8. ↑ BT-Drs. 18/8805 of June 15, 2016, War in Syria and the right to refuse to command , p. 7
  9. ↑ ZDv 1/50 No. 303
  10. ↑ ZDv 1/50 No. 304
  11. ↑ ZDv 1/50 No. 305
  12. ↑ ZDv 1/50 No. 301
  13. ↑ Klaus Dieter Leister, Delimitation of the command from the administrative act in civil service and military law , 1970, p. 46
  14. ↑ Martin Moll, “Führer Erlasse” 1939-1945 , 1997, p. 38
  15. ^ Photo of the command
  16. ↑ STANAG 2014 TOP (EDITION 9) - FORMATS FOR ORDERS AND DESIGNATION OF TIMINGS, LOCATIONS AND BOUNDARIES. In: NATO . October 17, 2000, accessed October 20, 2019 .
  17. ↑ BVerwG, judgment of March 16, 2011, Az .: 2 WD 40.09 - juris Rn. 52
  18. ↑ BVerwG, judgment of March 13, 2008, Az .: 2 WD 6.07 = DÖV 2009, 130
  19. ↑ BVerwG, judgment of November 24, 2015, Az .: 2 WD 15.14, Rn. 46
  20. ↑ BVerwG, decision of May 10, 1988, Az .: 2 WDB 6.87 = BVerwGE 86, 18
  21. ^ Peter Rowe, The impact of Human Rights Law on Armed Forces , 2006, p. 226
  22. ↑ Heike Krieger, The Responsibility of Germany according to the ECHR for its armed forces in foreign deployments , in: ZaöRV 62, 2002, p. 681