- Germany maintains conscription.
- Germany continues to impose several disciplinary arrests for total objectors.
Conscription is enshrined in art. 12(1) of the Constitution (as amended in 1956), according to which all men over 18 may be obliged to serve in the armed forces1. It is further regulated with the Compulsory military service law (Wehrpflichtgesetz)2 from 1956, which states in Article 1.1: “All men who have attained the age of 18 years and are Germans within the meaning of the Basic Law are obliged to perform military service.” Article 3 paragraph 1 states: “The obligation to perform military service is satisfied by military service or, in the case referred to in Paragraph 1 of the Kriegsdienstverweigerungsgesetz (Law on refusal to perform war service) ... by civilian service ... ”
All men between the ages of 18 and 45 are liable for military service (1956 Law, art. 3). However, according to article 5 call-up for military service is only possible between 18 and 23, and in some cases until 25 or 30 and even 32 years3.
The length of military service is 9 months.
Reservist obligations pertain in peacetime up to the age of 45, up to the age of 60 in the case of officers and non-commissioned officers. Those who volunteer for the reserve forces are bound to be called up.
In wartime (according to the constitution, this applies only in a case of a defensive war) men up to the age of 60 may be called up to serve for an indefinite period.
Various types of 'special service' are referred to in art. 13a and 13b of the Law on Compulsory Military Service: civil defence service (Katastrophenschutz/Zivilschutz) lasting at least six years, or work in voluntary development aid abroad lasting at least two years. Those who have performed special service are exempted from military service.
The armed forces comprise 247,712 troops, including 35,490 conscripts, 24,351 conscripts who voluntarily extended their service, and 187,871 professional soldiers either on fixed-term contracts or unlimited contracts. (May 2008)4. This means that more than 80% of the Armed Forces of Germany are made up of professional soldiers, and not by conscripts. The Armed Forces therefore make special efforts to attract potential recruits, among others via a special website targeting young people (http://treff.bundeswehr.de). Recruiting teams also visit community events and job fairs.
With another website (http://www.bundeswehr-karriere.de/), the Armed Forces target those wishing to join the Armed Forces.
The service of professional soldiers (and conscripts) is regulated in the soldiers' law (Soldatengesetz) from 19565.
Conscientious objection for conscripts
The right to conscientious objection is included in Article 4b of the 1949 Constitution. Legal provisions are laid down in the 2003 Law on Conscientious Objection (Kriegsdienstverweigerungsgesetz), which replaced the previous 1983 Law on Conscientious Objection6. The new Law on Conscientious Objection entered into force on 1 November 2003.
The law applies to conscripts and professional soldiers (Article 2 paragraph 6). A conscientious objection is possible before, during, and after military service. Both religious and non-religious grounds for conscientious objection are legally recognised. According to Article 1 of the Law on Conscientious Objection, CO status is to be granted to those who refuse military service for reasons of conscience as described in the Constitution. Article 4 paragraph 3 of the Constitution in fact states that "no one shall be compelled to perform armed war service contrary to his conscience". An application has to explicitly refer to Article 4 paragraph 3 of the Constitution, and has to be accompanied by a complete CV and a written explanation of the personal reasons for the conscientious objection (Article 2 paragraph 3).
The length of substitute service is 9 months, which is the same length as military service. The length of substitute service was actually reduced from 10 months in 2004, meaning that after 40 years, substitute service now has the same duration as military service.
Substitute service is administered by the Federal Office of Civilian Service (Ministry of Youth, Family Affairs, Women and Health), and regulated by the Law on the Alternative Civilian Service of Conscientious Objectors (Zivildienstgesetz)7. Substitute service is mainly performed in social welfare institutions, such as hospitals, nursing and working with handicapped people. The salaries of COs are partially paid for by the employing organisation and partly by the government. A few placements are made with (non-profit) non-governmental organisations.
COs who have completed one year of voluntary work, either within Germany or abroad, mostly ecological or social work, do not have to perform substitute service.
After completing substitute service, COs have no reservist duties. During wartime the right to conscientious objection is guaranteed and COs may not be called up for military service.
Since 1991, the number of CO applications exceeds 100,000 per year. In 2007, 161,448 CO applications have been submitted8.
Conscientious objection for professional soldiers
The right to conscientious objection also applies to professional soldiers. Some provisions on conscientious objection for professional soldiers are laid down in a decree of the Ministry of Defence of 21 October 2003, last amended on 3 November 20059. The application procedure for professional soldiers who wish to be discharged from the armed forces because of conscientious objection is comparable with the application procedure for conscripts.
Applications must be made to the 'Kreiswehrersatzamt' (regional recruitment office) and must include a motivation letter in which the applicant explains in more detail how and when his/her problems of conscience started. The application is forwarded to the Federal Office of Civilian Service (Ministry of Youth, Family Affairs, Women and Health), which makes a decision. The Federal Office may ask the opinion of the military commander or the personnel office. If the Federal Office has doubts about the application, it may order the applicant to attend for a personal interview. In practice, this does not seem to happen often. In cases were the application has been submitted with all necessary documents, the Federal Office usually decides within a timeframe of a few weeks up to several months.
During the time of the application procedure, a CO applicant has to continue serving, including with arms. However, according to article 2.2 it is possible to request to be relieved of the duty to bear arms.
If a professional soldier is recognised as a conscientious objector he needs to be released from the armed forces immediately (2003 Decree of the Ministry of Defence, Article 3.2).
The application procedure is the same during wartime or time of emergency or during combat (2003 Decree, Article 3.6).
Every year approx. 70 professional soldiers ask for discharge from the armed forces because of conscientious objection10. There are no detailed figures available about the number of applications granted, but most applications are reportedly being granted.
The military authorities regard a release from the armed forces which is based on conscientious objection as a release on someone's own initiative. This means that a professional soldier who has been recognised as a conscientious objector, needs to pay back the costs of any courses that (s)he has followed in the military and that have a civilian use.
Draft evasion and desertion(including total objection)
Refusal to perform compulsory military service is considered as desertion and punishable by up to 5 years' imprisonment (Military Penal Code, article 16)11. If a draft evader gives himself up within a month and agrees to perform service, the maximum punishment is three years.
Disobeying military orders is punishable by up to three years' imprisonment, and in certain cases up to five years' (articles 19 and 20).
Absence without leave is punishable by up to three years' imprisonment (article 15). Desertion is punishable by up to five years' imprisonment, although deserters who return to their unit within a month may be sentenced to up to three years' (article 16).
The Law on the Alternative Civilian Service of Conscientious Objectors prescribes the same penalties for COs performing substitute service who disobey orders, are absent without leave or desert (Law on Alternative Civilian Service, articles 52, 53, 54).
Total objectors to military and substitute service are repeatedly sentenced either under article 16 military penal code ('desertion') or article 53 of the Law on Alternative Civilian Service, depending on whether they first attempted to be recognised as conscientious objectors.
Total objectors who are not recognised as conscientious objectors regularly face repeated military arrest, often up to 63 or even 84 days. According to a decree of the Ministry of Defence from 21 April 200812, total objectors should not be released from the military before they have not served at least two arrests of 21 days each.
Following a military arrest, the case will be handed over to the civilian authorities to be tried in a civilian court. They are then usually sentenced to several months imprisonment, usually on probation, or community sentences. In case they refuse to serve their community sentences, or refuse to comply with the conditions for probation, imprisonment follows.
In 2007 and 2008 several total objectors have been called up by the military, and have been serving time in military arrest. This is a change of policy, as no total objector had been called up between 2004-200613.
In 2005, a German officer who in 2003 refused to follow an order to continue working on a project that would be used in Iraq was acquitted by the Federal Administrative Court. The court granted him the right to refuse the order based on his freedom of conscience14.
1Basic Law for the Federal Republic of Germany, 23 May 1949, (Federal Law Gazette, p. 1), (BGBl III 100-1), most recently amended by the amending law dated 26 July 2002 (BGBl I, p. 2863), http://www.legislationline.org/upload/legislations/1f/42/bc2d658ded2190a1e81ae196eda7.pdf, accessed 26 August 2008
2Wehrpflichtgesetz (WpflG), last amended on 31 July 2008 (BGBl. I S. 1629), http://bundesrecht.juris.de/wehrpflg/BJNR006510956.html, accessed 26 August 2008
3Wehrpflichtgesetz (WpflG), last amended on 31 July 2008 (BGBl. I S. 1629), http://bundesrecht.juris.de/wehrpflg/BJNR006510956.html, accessed 26 August 2008
5Gesetz über die Rechtsstellung der Soldaten (Soldatengesetz – SG), last amended on 31 July 2008 (BGBl. I S. 1629), http://www.gesetze-im-internet.de/sg/BJNR001140956.html, accessed 26 August 2008
6Gesetz über die Verweigerung des Kriegsdienstes mit der Waffe aus Gewissensgründen (Kriegsdienstverweigerungsgesetz – KDVG), last amended on 31 July 2008 (BGBl. I S. 1629), http://bundesrecht.juris.de/kdvg_2003/BJNR159310003.html, accessed 26 August 2008
7Act on the Alternative Civilian Service of Conscientious Objectors (Alternative Civilian Service Act), 17 May 2008, http://www.bmfsfj.de/bmfsfj/generator/RedaktionBMFSFJ/GruppeZivildienst/Pdf-Anlagen/zdg-englisch,property=pdf,bereich=,sprache=de,rwb=true.pdf, accessed 26 August 2008
8Bundesamt für den Zivildienst: Anzahl der gestellten Anträge auf Anerkennung als Kriegsdienstverweigerer pro Jahr, http://www.zivildienst.de/Content/de/DasBAZ/ZahlDatFakt/Aktuell__KDV__Antraege,templateId=raw,property=publicationFile.pdf/Aktuell_KDV_Antraege, accessed 26 August 2008
10Antwort des Parlamentarischen Staatssekretärs Thomas Kossendey, 9 May 2007: Kriegsdienstverweigerung – Antragstellungen von Soldaten seit 2001 nach Statusgruppen und insgesamt, http://dip.bundestag.de/btd/16/053/1605317.pdf, accessed 30 September 2008
11Wehrstrafgesetz from 24 May 1974, last amended on 22 April 2005 (BGBl. I S. 1106), http://bundesrecht.juris.de/wstrg/BJNR002980957.html, accessed 26 August 2008
12Vorzeitige Entlassung von Grundwehrdienstleistenden (GWDL)/freiwilligen zusätzlichen Wehrdienst Leistenden (FWDL) gemäß § 29 Abs. 1 Satz 3 Nr. 5 und Abs. 4 Nr. 2 des Wehrpflichtgesetzes, http://www.kampagne.de/Recht/Dokumente/TKDV_Erlass.php, accessed 26 August 2008
13Kampagne gegen Wehrpflicht, Zwangsdienste und Militär, Aktuelle Praxis TKDV, http://www.kampagne.de/Wehrpflichtinfos/AktuellePraxisTKDV.php, accessed 26 August 2008
by Rudi Friedrich
On February 26, 2015, the European Court of Justice (ECJ), having been asked by the Munich Administrative Court (Verwaltungsgericht) to submit a decision on U.S. AWOL soldier André Shepherd’s request for asylum, published its preliminary ruling. As many media observers now believe that Mr Shepherd’s prospects of being granted asylum status are very remote, Rudi Friedrich from Connection e.V. has now summarized his initial thoughts on whether pessimism is indeed justified and what ramifications the court's preliminary ruling will have. (ed.)
by Connection e.V. and Pro Asyl
In the legal case of U.S. AWOL soldier André Shepherd (37) the European Court of Justice Advocate General, Eleanor Sharpston, today published her final opinion. This official statement contains guiding deliberations for the interpretation of the so-called Qualification Directive of the European Union.
Date published: 12 December 1966
Mr Grandrath, a minister of Jehovah's Witnesses, was a "total objector", seeking to be exempted both from military and from civilian service. He complained about his criminal conviction for refusing to perform substitute civilian service and alleged that he was discriminated against in comparision with Roman Catholic and Protestant ministers who were exempt from this service.
According to a report in the German newspaper Hannoversche Allgemeine Zeitung, 14 percent of recruits in one battalion in Lower Saxony had quit in the first few weeks of the new military recruitment system that started 1 July 2011, following the suspension of conscription. At a Berlin battalion, the drop-out rate was 10 percent.
The German Federal Bureau of Migration and Refugees denied the
asylum application of US AWOL soldier Andre Shepherd, Connection e.V.
reported. In its negative decision, the Federal Bureau writes, “But
whether the helicopters he maintained and their crews actually
participated in specific illegal actions (contrary to international
law) has neither been stated sufficiently, nor can it be determined
The German parliament approved amendments to the conscription law on 15 December 2010, which will suspend conscription from 1 July 2011 on. The last conscripts will start their compulsory military service on 3 January 2011 for six months.
Besides suspending conscription in peace time, the medical examination of potential recruits will also be suspended.
After a very controversial debate (see for example CO-Update No 58, August 2010), the main party in the governing coalition, the Christian Democrats, agreed to a reform of the German Armed Forces on Sunday, 26 September. This includes the suspension of conscription, and - as a consequence - also of substitute service. Only very recently, military service had been reduced from nine to six months - a change which only took effect on 1 July 2010 (see CO-Update No 55, April 2010).
A new discussion about the future of conscription has flared up in Germany. Defence Minister Karl-Theodor zu Guttenberg argues that conscripted troops are costly and of little use to the modern German military, or Bundeswehr, now focused on far-flung foreign missions to hot spots such as Afghanistan. The six-month stint that young German men are required to serve is too short for highly skilled military training, security analysts say. Conscripts also can't serve abroad, so many end up working in kitchens or at desk jobs.
As reported earlier in CO-Update, Germany seems to be going ahead with the shortening of military and substitute service from nine months to six months. Defence Minister Karl-Theodor zu Guttenberg and Family Minister Kristina Schröder presented a draft law to the Defence Committee of the German parliament in March. According to the proposal, all conscripts will be able to benefit of the shorter term from 1 October 2010, while for conscientious objectors the shorter term will come into force from 1 August 2010.