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German defense policy
Dr. Dieter Weingärtner, born 1953, head of the legal department of the Federal Ministry of Defense, previously worked in various functions in the Federal Ministry of Justice, in the administration of the German Bundestag and in the Ministry of the Environment in Baden-Württemberg. Author and editor of legal specialist publications with a focus on constitutional law, international law and military law.
The military constitutionWhen the Basic Law (GG) came into force in May 1949, it seemed hard to imagine that the newly founded Federal Republic of Germany would have its own armed forces in the foreseeable future. The Second World War and the surrender of the German Reich were too close. The Basic Law initially did not contain any provisions on an army. But in the face of increasing tensions between East and West and the emerging "Cold War" - after fierce domestic political debates - the conviction gained the upper hand that rearmament in Germany was inevitable. The formation of the Bundeswehr began and the Basic Law was supplemented in 1956 by a "Defense Constitution".
However, the military constitution does not form a separate section in the Basic Law. Rather, the provisions that affect the Bundeswehr are divided into various articles that are scattered across almost the entire constitutional text. In 1968 the "Emergency Constitution" was added, which regulates, among other things, the role of the armed forces in emergency situations at home. Apart from this, the military constitution has remained practically unchanged since 1956.
The central norm is Art. 87a GG with its first sentence: "The federal government sets up armed forces for defense". On the one hand, this makes it clear that the federal government is responsible for the army and not the states. On the other hand, defense is defined as the main task of the Bundeswehr. This includes both the defense of Germany (national defense) and the alliance defense on the basis of the NATO treaty. In any case, the Bundeswehr has to be defensive. Because Art. 26 GG already declares the preparation of a war of aggression to be unconstitutional.
Formation and deployment of the armed forces
(2) Except for defense, the armed forces may only be deployed insofar as this Basic Law expressly allows it.
(3) In the case of defense and in the event of tension, the armed forces have the authority to protect civilian objects and to perform traffic control tasks, insofar as this is necessary to fulfill their defense mandate. In addition, the armed forces can be entrusted with the protection of civilian objects in the event of defense and in the event of tension, also to support police measures; the armed forces cooperate with the responsible authorities.
(4) In order to avert an impending danger to the existence or the free democratic basic order of the Federation or a Land, the Federal Government may, if the requirements of Article 91 (2) are met and the police forces and the Federal Border Guard are insufficient, armed forces to support the police and of the Federal Border Guard to protect civilian objects and to fight organized and militarily armed insurgents. The use of armed forces is to be discontinued if the Bundestag or the Bundesrat so request.
The German armed forces are under civil and not military leadership. The Federal Minister of Defense has - according to Art. 65a GG - the authority to command and command. According to Art. 115b GG, this is transferred to the Federal Chancellor with the announcement of a state of defense - the Bundestag's determination that the federal territory is being attacked with armed force or that such an attack is imminent. 
The Bundeswehr consists of a military part, the armed forces, and the civil armed forces administration. Art. 87b GG assigns the Bundeswehr administration the "tasks of human resources and the direct coverage of the material needs of the armed forces". Material requirements include, for example, accommodations for the soldiers and armaments. Related tasks are primarily carried out by civil and non-military personnel, even if more recently civil servants in military areas and soldiers in the Federal Armed Forces administration have increasingly been active in a "common armed forces approach".
Except for defense, the armed forces may only be used - as stipulated in Art. 87a paragraph 2 - insofar as the Basic Law expressly allows it. The Basic Law only contains such explicit authorizations for the deployment of the Bundeswehr for:
- the case of defense and the case of tension (Art. 87a para. 3 GG), i.e. an acute or threatened armed attack on the territory of the Federal Republic of Germany,
- for an internal emergency (Art. 87a, Paragraph 4, Basic Law), e.g. in the case of armed uprisings that endanger the Federal Republic of Germany,
- and in the event of a disaster (Art. 35 Paragraphs 2 and 3 GG), e.g. in the event of natural disasters such as floods or earthquakes.
Democratic control of the armed forcesThe text of the Basic Law expresses a clear distrust of military power, which is not surprising in view of the experiences from times of dictatorship and war. In addition to the civilian leadership and the limited operational powers, this is expressed above all in the pronounced parliamentary control of the armed forces. Their numerical strength and the main features of their organization must result from the budget that the parliament decides (Article 87a, Paragraph 1, Sentence 2 of the Basic Law).
According to Art. 45a of the Basic Law, the Bundestag appoints a Defense Committee to control the Bundeswehr. This committee is the only parliamentary committee to have the right - and, at the request of a quarter of its members, the duty - to appoint itself to a committee of inquiry. He can then use the resources of the committee of inquiry to examine what is going on in the defense sector, i.e. examine witnesses and confiscate documents. The Defense Committee carried out such investigations, for example, in the 1980s on the "Kießling Affair" and more recently on the bombing in Kunduz / Afghanistan and on the failure of the EURO HAWK drone project.
To protect the basic rights of soldiers and as an auxiliary body of the Bundestag when exercising parliamentary control, Art. 45b GG provides for the appointment of a Bundestag defense commissioner. According to the Armed Forces Commissioner Act, any soldier can turn to him without having to comply with official channels and regardless of an official complaint if he feels that his rights have been violated. The Armed Forces Commissioner has extensive official powers vis-à-vis the Federal Armed Forces in order to carry out his duties. He submits an annual report to the Bundestag. This report is regularly devoted not only to individual cases of misconduct by superiors, but also to general problems of soldiers such as their social situation or the quality of their equipment.
Use of the Bundeswehr in GermanyWith the concluding list of the situations in which the Bundeswehr may be deployed within the federal territory, the constitution seeks to prevent the armed forces from becoming a power factor in domestic political disputes. Internal security should be the task of the police. The Bundeswehr may, however, provide support by means of "administrative assistance" (Article 35.1 of the Basic Law). For example, it can provide the police with transportation or accommodation. Such help is not an "operation" of the Bundeswehr. However, administrative assistance does not allow sovereign action, no enforcement of state powers with coercive means. Even the impression that they are exercising military power must not be given to those affected.
Situations of defense, tension and internal emergency, in which a domestic deployment of the armed forces is permitted, seem rather unrealistic nowadays. This is different for serious accidents and catastrophes within the meaning of Article 35 Paragraphs 2 and 3 of the Basic Law. Under the conditions mentioned there, the armed forces can not only provide technical administrative assistance by strengthening protective dams, for example in the event of a flood disaster, but can also act on a sovereign basis, for example to regulate traffic.
The Aviation Security Act wanted to make a special regulation for the deployment of armed forces in the interior in the event of a terrorist attack with airplanes. The trigger for this was the attacks in the USA in September 2001. However, the Federal Constitutional Court declared unconstitutional those provisions of the law that permitted the use of violence against aircraft manned by innocents. This violates the human dignity of these people. An aircraft manned exclusively by terrorists, on the other hand, is likely to fight the air force. In the opinion of the court, an imminent terrorist attack also represents a particularly serious accident within the meaning of Article 35.3 of the Basic Law, which can justify the deployment of the Federal Armed Forces. However, this would have to be approved in advance by the federal government.
Self-protection of the BundeswehrThe Basic Law guarantees the Bundeswehr as a state institution. Associated with this is the authority to protect own personnel and own facilities from unlawful interference. This is the purpose of the law on the use of direct coercion by soldiers of the Bundeswehr. It regulates the powers in the exercise of military watch and security tasks. The law also provides for the establishment and safeguarding of military security areas, which unauthorized persons are prohibited from entering.
Protecting the Bundeswehr is also the task of the Military Counter-Intelligence Service (MAD). The MAD is one of the three German intelligence services. Its normative basis is the Act on Military Counterintelligence. The main focus of the work of the MAD is the defense against espionage and extremist movements. The MAD can use its intelligence services against internal perpetrators, i.e. members of the Bundeswehr. In certain cases he may also act against other persons who endanger the security of the Bundeswehr.
Use of the Bundeswehr abroadWorking abroad to prevent conflicts and manage crises has practically become the main task of the armed forces since German reunification in 1990. Since then, the Bundeswehr has participated in dozens of international missions in the Balkans, in the Near and Middle East, in Africa and on the high seas. It is all the more surprising that the Basic Law does not even mention these foreign deployments at any point. Rather, its constitutional basis is still a key decision of the Federal Constitutional Court from 1994.
At the beginning of the 1990s, the Bundeswehr took part in NATO military operations against what was then Yugoslavia and in a United Nations mission in Somalia. Two parliamentary groups in the Bundestag then applied to the Federal Constitutional Court to determine that the Federal Government had violated the Basic Law by participating in these actions. In its judgment of July 12, 1994, the Federal Constitutional Court designated the provision of Article 24, Paragraph 2 of the Basic Law as an express authorization for armed forces deployed abroad. Article 24.2 of the Basic Law provides that the Federation can join a system of mutual collective security in order to maintain peace. According to the highest German court, such accession also includes the use of the Bundeswehr for operations that take place within the framework and according to the rules of this system. A foreign deployment of the Bundeswehr is therefore permitted within the framework of the United Nations (UN), NATO and the European Union (EU).
According to the Federal Constitutional Court, if armed forces are deployed, this requires the approval of the Bundestag. The court derives the "parliamentary reservation" on the one hand from the German constitutional tradition and on the other hand from the comprehensive parliamentary control of the armed forces. In order to implement this ruling, the Parliamentary Participation Act was passed in 2005. This regulates the procedure from the application by the Federal Government through its treatment in the Bundestag to the possibility of subsequent approval in acute dangerous situations. All of this now corresponds to parliamentary routine. If necessary, the Bundestag takes its decisions at very short notice. There are, however, discussions about the question of whether the use of the Bundeswehr abroad constitutes an "armed operation" or whether humanitarian aid does not require approval by the Bundestag.
The powers to act that soldiers of the Bundeswehr have on deployments abroad are derived from the international mandate of the UN, NATO or the EU and from the Bundestag resolution. They are specified in rules of engagement (ROE), which represent military orders. How these rules are designed also depends on whether the mission is in peace or in war. In an "armed conflict", which can be international or (as in Afghanistan) non-international (civil war), the Geneva Conventions of 1949 and their additional protocols must be observed, which establish protective rights and obligations for combatants and civilians in the event of a conflict.
ConscriptionThe legislature made use of the possibility of introducing compulsory military service soon after the establishment of the Bundeswehr. In 1956 the conscription law came into force and as early as April 1, 1957, young men were called up for basic military service. This was of varying duration in the following decades, depending on the political situation. However, he was increasingly burdened with the fact that, due to capacity and financial problems, an ever smaller proportion of eligible conscripts actually had to do military service. Military injustice increased and ultimately led to the mandatory drafting of basic military service being suspended in 2011.
The 2011 version of the Compulsory Military Service Act continues to assume that German men are generally compulsory from the age of 18 onwards, but restricts the resulting consequences - the obligation to do military service - to cases of tension or defense. This also eliminated the previously existing obligation of conscientious objectors to perform alternative service. However, the right to conscientious objection from Article 4 (3) of the Basic Law continues to be important. Active soldiers can also refuse to do military service with a weapon for reasons of conscience. If they are recognized as conscientious objectors in accordance with the Conscientious Objection Act, they withdraw from the Bundeswehr.
Conscription and alternative service
(2) Anyone who refuses military service with a weapon for reasons of conscience can be obliged to do 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 involved in a service according to paragraph 1 or 2 may, in the case of defense, be obliged by law or on the basis of a law to provide civilian services for defense purposes, including the protection of the civilian population in employment; Obligations in public-law employment relationships are only permitted for the performance of police tasks or such sovereign tasks of the public administration 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 field of supplying the civilian population are only permissible in order to cover 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 statute 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 preparation 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 the 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 the Germans to give up the exercise of a profession or the 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.
Duties and Rights of SoldiersThe legal status of soldiers - professional soldiers, temporary soldiers, voluntary military service - is regulated by the Soldiers Act. The Soldiers Act lists the options for establishing and terminating an employment relationship as a soldier. Details such as the various career groups (men, NCOs, officers) are regulated by the Soldiers' Career Ordinance. Since a judgment by the European Court of Justice, all careers are now also open to women.
The Soldiers Act understands the soldier as a "citizen in uniform" with special rights, but also duties. According to the oath that he has to take, he has a fundamental duty to serve the Federal Republic of Germany faithfully and to valiantly defend the rights and freedom of the German people. In addition, the Soldiers Act obliges soldiers to stand up for the free democratic basic order and to obey their superiors. The superior ordinance determines who is a soldier's superior. However, the duty of obedience does not apply to orders that are issued for non-official purposes, that violate human dignity or even violate criminal regulations.
Other soldiers' duties include the duty of comradeship, the duty of truth in official matters, the duty of confidentiality and the general duty to behave appropriately in and outside of the service. A breach of these obligations is a service offense that can be punished with a disciplinary measure according to the military disciplinary code.
These special military duties restrict basic rights such as the right to freedom of expression and civil rights such as the right to political activity. However, the legal restrictions may only go as far as the military service absolutely requires. For example, the duty of truth only applies in official matters and the duty of confidentiality does not apply where official communications are required. Also, the soldier is only prohibited from working for a certain political direction while on duty.
On the other hand, the soldier has rights such as the right to the care of his employer. This includes entitlements to salary payments and benefits in kind such as uniforms, vacation and free medical care. The military complaint regulations formulate the soldier's right to lodge a complaint. After leaving the service, the soldier is entitled to benefits under the Soldiers' Welfare Act. And according to the Soldiers Participation Act, he can participate in the organization of the service through shop stewards and staff representatives.
Military criminal law and military jurisdictionGeneral German criminal law applies to the actions of soldiers, even when they are abroad on duty. In addition, the Military Criminal Act recognizes special military crimes such as desertion, refusal to obey or assaulting a superior. Criminal offenses relating to the violation of superiors' duties are also specifically regulated. The International Criminal Code also applies to acts in the context of an armed conflict (war). It punishes violations of international humanitarian law such as genocide, crimes against humanity and war crimes.
In contrast to other countries, Germany does not yet have any military criminal courts. Crimes committed by soldiers are prosecuted by civil prosecutors and punished by civil courts. In 2013, a uniform special place of jurisdiction was created in the city of Kempten for criminal offenses in the context of foreign missions by the armed forces. In the case of crimes under the International Criminal Code, however, the Federal Public Prosecutor continues to investigate. This - and not a military public prosecutor - also investigated the circumstances of the bombing near Kunduz / Afghanistan in September 2009 under criminal law. In the division of the Federal Ministry of Defense there are only military disciplinary attorneys and troop service courts that have to decide on disciplinary and complaint matters.
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