Military justice

During the existence of conscription in Germany , military justice was one of the top principles alongside the basic right to conscientious objection .

Development between 1956 and 2011

Military justice was understood to mean that every German man from the age of 18 is conscripted and drafted into military service. This should ensure that arbitrariness or chance does not decide whether a young man has to do military service.

Nevertheless, there have been exemptions from military service since the Bundeswehr was founded . Thus, five percent of the men in a given year were retired. For example, no military service had to be done if two (including half) brothers had already done military or community service . In addition, descendants of people who had been persecuted during the Third Reich could be exempted from military service; as this was valid up to the third generation (ie great-grandchildren), exemptions from military service for this reason continued until the suspension of compulsory military service in 2011 in Germany.

Since compulsory military service represented a massive restriction on the basic rights of conscripts, there was strong pressure until the end of compulsory military service to justify these restrictions with the threat situation. This justification became more difficult after the end of the Cold War . From the end of the 1990s until the suspension of compulsory military service, retirement or refusal was no longer the exception, but the rule. In 2002, only every fourth man was called up for military service, over a third of the young men were even retired immediately, and they did not have to do any alternative service.

On April 21, 2004, the Cologne Administrative Court ruled for the first time in the history of the Federal Republic that in a specific individual case the conscript may not be used for military service, since military justice was no longer guaranteed. The Federal Administrative Court , however, overturned the judgment and referred the matter back to the Cologne Administrative Court for a new hearing. The Cologne Administrative Court then suspended the hearing and submitted the facts to the Federal Constitutional Court in Karlsruhe . So it would have been possible that the military injustice would have been determined by the Federal Constitutional Court.

With the suspension of compulsory military service on July 1, 2011 in Germany, the debate about military justice came to an end, as the reason for the debate, compulsory military service, no longer existed.

The importance of those doing community service as inexpensive workers in the social sector has raised the suspicion that military service in Germany was only maintained in order to enable the use of community service to continue.

The question also arose why only men had to do military service or alternative military service, which was in contrast to the gender equality stipulated in the Basic Law.

The same applied not only to the “equal treatment of all young people”, but also to justice in the armed forces vis-à-vis the affected families compared to the families in which only daughters lived.

Differentiation between military and service justice

In general, a distinction was often made between military justice and service justice. The military justice referred only to the conscription - d. That is, whether all young men in Germany were generally called up for military service, provided there were no exceptions for them (health reasons, conscientious objection, etc.).

The fairness of service, on the other hand, described how many young men were actually drawn into a service that could be counted towards basic military service (e.g. community service, civil protection service). Both terms were often interchanged, but in both cases it was not possible to speak of justice if the relationship between the service providers and the non-service providers was taken into account.

Suitability problem

Also questionable from the point of view of justice was the differentiation between fit for duty and unfit for duty or the legal consequences that result from this distinction for those affected: In Germany - regardless of the equality requirement of the Basic Law - traditionally only those young people had to do a service who were drafted found fit, while those who are retired need no service. This state of affairs was naturally in considerable tension with Article 12 of the Basic Law , which linked service obligations to the condition that these had to apply “in general and the same for everyone”.

Critics complained that it was a serious injustice that the Bundeswehr was allowed to decide on the criteria of fitness and unsuitability itself and that this decision-making leeway was often used to retire young people due to health impairments that would not have stood in the way of performing a service. The Bundeswehr, so the criticism, applied criteria of arbitrariness and not criteria of necessity when assigning the degree of fitness “unfit for service”. Furthermore, it was demanded that even young people whose health was not suitable for military service in the narrower sense of the word should, out of consideration for equality, be drawn into services that were within the scope of their physical and mental performance capabilities. So z. For example, there was nothing to be said against making physically weak or more easily disabled young people the obligation to perform a service in areas that were less physically stressful than military service and community service in the proper sense. The length of service and working conditions would of course have been the same, only the work would have been adapted to the physical and / or psychological impairments of the persons concerned. For example, instead of decommissioning a severely visually impaired person, you could have let work as a telephone operator. With this practice of obligation, all young people who were able to work could be obliged in the same way, which would of course have been far fairer from a justice point of view, since then only those members of one year who were unable to work would have "avoided" the service, i.e. only those people who did not serve at least had no professional-economic advantage over their serving peers.

Convocation practice for alternative military service

As military injustice were referred to the fact that due to lack of need for the armed forces not actually any conscripts for military service convened while basically each conscientious objectors an alternative service (usually civil service had to serve). The injustice of military service intensified up to the suspension of compulsory military service due to the withdrawal of all those who were previously T3 ( fitness level 3) or T7. Thus, by 2011 only less than two thirds of a year group had to do their basic military or alternative service.

So should z. In 2003, for example, out of a total of 400,000 young men, 109,000 conscripts started their service in the armed forces, while 123,000 conscripts were called upon to do alternative service. The ratio of conscripts who did not refuse to conscientious objection was around 60 to 40.

In this context, the report by the German Bundestag's Defense Commissioner was also interesting. An excerpt from the data from the report of the Armed Forces Commissioner from 2004: Of the men born in 1980, 440,000 were recorded as conscripts.

137,500 (31.25%) did military service
139,500 (31.70%) conscripts refused to serve
12,500 (2.84%) turned to other services, for example civil protection and disaster control or the development service
150,500 (34.20%) were either retired, exempted from service for formal reasons (e.g. married couples or if the brothers served) or were never drafted for other reasons.

For the men born in 1983, the injustice looked even more dramatic:

66,798 (15.38%) did military service
101,236 (23.34%) did community service, civil protection or development service or a voluntary ecological or social year
266,057 (61.28%) did no work at all (including those who were retired)

The Armed Forces Commissioner gave the following forecast for the following years:

"In later years, the number of those actually called up for basic military service is expected to decrease, because in future only 30,000 basic military service and 25,000 voluntary longer military service will serve in the armed forces."

In this regard, reference should also be made to the Bundeswehr's self-image of military justice. In a brochure entitled "Yes, I am there - a guide to compulsory military service", the Bundeswehr points out the difficult relationship between rights intervention and the need for conscription in relation to the low number of conscripts and general conscripts:

“Both the state and the armed forces know that basic military service represents a major cut in the life and career planning of young men. Therefore, the time required by the general conscription must not last longer and the number of those to be called up must not be higher than is absolutely necessary to ensure the security of our country and the operational readiness of the Bundeswehr. "

In June 2010, "Der Spiegel" described the situation of conscripts in the Bundeswehr and also castigated injustice in the military.

Helmut Schmidt summarized the problem of military injustice in 1969 as follows: “However, it must finally be understood that today's military injustice is only bearable for a few years, if not lasting severe damage to the trust of young men and thus the internal stability of the democratic constitutional state should be accepted. "(Ders .: Strategy of equilibrium , Stuttgart 1969, p. 271)

Adalbert Weinstein summed up in the FAZ on March 15, 1970: "There is no military justice as long as conscription is maintained."

Economic effects for those doing compulsory service

In practice, military injustice for those affected was divided into two hardships: On the one hand, a hardship related to the professional field and, on the other hand, a personal and private hardship. The professional hardship resulted from the fact that those who had to serve were a year behind their peers who did not have to serve (girls, retired, released, undocumented) in training and work, while the unserved conversely - for no reason and " undeserved ”- got one year head start from the state. In practice, this could result in poorer chances of competing on the training and labor market for the "served" (with the same qualification level one year older than the competition), but above all also considerable financial losses, which result from the loss of a top annual salary at the end of working life and from the lower pension entitlements to which the servants are entitled due to later starting and thus shorter or lower contributions to the pension fund compared to the "unserved". In the political discussion, this fact - that some were allowed to pursue their regular occupation or at least appropriate vocational training, while others had to serve a low wage, or whoever did something for the general public suffered economic disadvantages, while non-performers suffered additional ones Merit were rewarded - often criticized with the formula "Serving the one, deserving the other" .

Personal effects for military service and alternative military service

The personal hardship for the servants resulted from the impairment of the individual personal quality of life, as what the time in the armed forces or community service was felt by many affected and which the non-serving did not have to take on. Many young people felt that it was highly unfair that they had to live a “gloomy” and “unhappy” life as forced laborers, sometimes far from their hometown, while their peers were allowed to live a happy and fulfilling life as free people at the same time.

Both hardships together add up to a double burden, which has often come under criticism, for the servants as opposed to the non-servants: At the end of the year of service, those who served not only had to frequently account for the fact that they had spent a year in a way that made them “unhappy "While many peers were allowed to spend the past year as they wanted and it made them" happy ". He was also punished for the victim of an "unhappy" year, because he was behind the non-serving peers in terms of time. The unserved people are to a certain extent also rewarded for not having made a sacrifice, as they were better off in training and work thanks to the one-year lead.

Military justice and migration background

According to the Defense Ministry, Germans of Turkish origin were noticeably rarely called up for military service. In the period from the beginning of 2000 to autumn 2008, of the 2.3 million men who were found fit, only a good two thirds were actually drafted. Many German-Turks did so badly in the language test that they were permanently postponed. This runs counter to the claim to select conscripts fairly. From a legal point of view, men with dual nationality are fully subject to German military service, even if they still have another passport. The place of residence is decisive.

Gender equality

Women are not subject to conscription . The restrictions of Article 12a of the Basic Law for women in the military were relaxed somewhat in the Federal Republic of 1975 in the area of the medical service. Only after the judgment of the ECJ in 2000 ( Kreil decision ) was it recognized that women have the ability and the right to be trained for combat service and to be deployed accordingly. According to the report by the military sociologist Maja Apelt from 2011, women soldiers are “in no way at a disadvantage” with regard to the physical strain in combat; Apelt rated the integration of women into the Bundeswehr as successful. In contrast, the Social Science Institute of the Bundeswehr points out the international situation of women in the military , who on average have 55% of the muscle strength and 67% of the endurance capacity of men. Another argument against compulsory military service for women was the argument that women, by giving birth and raising children, would already make a considerable contribution to society that men would not. However, this argument appears to be significantly weakened against the background of the aspired and now largely practiced distribution of family work between both sexes.

Defense justice in other countries

The issue of military justice has never achieved the status in other countries as it was in Germany at the time of conscription. The problem is declining as the trend is away from general conscription to professional armies.

In the USA, for example, little emphasis was placed on military justice; at the time of the Vietnam War there was a lottery to achieve military justice based on the principle of chance. The article conscription provides an overview of the international situation.

literature

Jens Fleischhauer: Conscription Army and Justice. The constitutionality of general conscription in terms of security, social and demographic changes . Kovač , Hamburg 2007, ISBN 978-3-8300-3233-5 .
Martin Heuser : Compulsory service, military service or zero service? - The general conscription against the background of a lack of equal burdens , Greifswalder six-month publication for jurisprudence (GreifRecht) 2010, pp. 111–120

Web links

Wiktionary: military justice - explanations of meanings, word origins, synonyms, translations

Reports of the Armed Forces Commissioner from 2001 to 2004
Reports on the actual drafting situation in Germany
New case law of the Federal Constitutional Court on the subject. In: FEDERAL CONSTITUTIONAL COURT - 2 BvL 5/99 -. Archived from the original on August 31, 2014 ; accessed on March 23, 2020 .
New case law of the Federal Constitutional Court on the subject. In: FEDERAL CONSTITUTIONAL COURT - 2 BvR 821/04 -. Archived from the original on August 31, 2014 ; accessed on March 23, 2020 .

Individual evidence

↑ Central office-KDV
↑ Der Spiegel No. 25 of June 21, 2010, pp. 32-35: The great void. - Every year the state forces tens of thousands of young men into military service. The Bundeswehr has no use for them, they lam around in the barracks. While the government argued over the abolition of conscription, the recruits are fighting their main enemy: boredom.
^ German-Turks in the Bundeswehr. Speech-disabled ( memento from January 22, 2009 in the Internet Archive )
↑ Press release No. 1/2000. Judgment of the Court of Justice in Case C-285/98. European Union , January 11, 2000, accessed September 21, 2017 .
↑ Martin Rank: "The men in the military benefit from the women". In: taz . July 19, 2011, p. 5 , accessed September 21, 2017 .
↑ Stephan Maninger in Helena Carreiras, Gerhard Kümmel : Women in the Military and in Armed Conflict (= series of publications by the Social Science Institute of the Bundeswehr . Volume 6 ). 1st edition. Springer VS , Wiesbaden 2008, ISBN 978-3-531-15834-1 , Women in Combat: Reconsidering the Case Against the Deployment of Women in Combat-Support and Combat Units, p. 9–27 (English, limited preview in Google Book Search).

[1] Central office-KDV

[GL-2] Der Spiegel No. 25 of June 21, 2010, pp. 32-35: The great void. - Every year the state forces tens of thousands of young men into military service. The Bundeswehr has no use for them, they lam around in the barracks. While the government argued over the abolition of conscription, the recruits are fighting their main enemy: boredom.

[3] German-Turks in the Bundeswehr. Speech-disabled ( memento from January 22, 2009 in the Internet Archive )

[4] Press release No. 1/2000. Judgment of the Court of Justice in Case C-285/98. European Union , January 11, 2000, accessed September 21, 2017 .

[5] Martin Rank: "The men in the military benefit from the women". In: taz . July 19, 2011, p. 5 , accessed September 21, 2017 .

[WiC_1-6] Stephan Maninger in Helena Carreiras, Gerhard Kümmel : Women in the Military and in Armed Conflict (= series of publications by the Social Science Institute of the Bundeswehr . Volume 6 ). 1st edition. Springer VS , Wiesbaden 2008, ISBN 978-3-531-15834-1 , Women in Combat: Reconsidering the Case Against the Deployment of Women in Combat-Support and Combat Units, p. 9–27 (English, limited preview in Google Book Search).