Germany

24/07/1998

1 Conscription

conscription exists

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 forces. [1]

The present legal basis of conscription is the 1956 Law on Military Service (Wehrpflichtgesetz), last amended in 1995.

military service

All men between the ages of 18 and 28 are liable for military service (1956 Law, art. 3) In practice men above 25 are not called up (except those who have been granted postponement, who can be called up until the age of 28). [1]

The length of military service is 10 months. It was reduced from 12 months in 1995, and from 15 months in 1990. [1] [7]

Reservist obligations pertain in peacetime up to the age of 45, up to the age of 60 in the case of officers. Those who volunteer for the reserve forces are bound to be called up. [7]

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. [1]

Various types of 'special service' are referred to in art. 13a and 13b of the Law on Military Service: civil defence service (Katastrophenschutz / Zivilschutz) lasting at least seven years, or work in voluntary development aid abroad lasting at least two years. Those who have performed special service are exempted from military service.

postponement and exemption

Postponement is permitted up to the age of 28 in order to study and for personal or professional reasons. Students must request postponement at least three months after the commencement of their course. [1] [7]

Owing to international legal obligations and strategic planning that limits the size of the armed forces, the Ministry of Defence is empowered to fix the rules on exemption. Exemption is granted in the case of clergy, single fathers and the third and any subsequent in families where two sons have already served. [1]

recruitment

Individual call-up notices are sent out as soon as the first professional diploma has been acquired. [5]

2 Conscientious objection

legal right

The right to conscientious objection is enshrined in art. 4b(3) of the 1949 Constitution, which states: "no one shall be compelled to perform armed war service contrary to his conscience". [9]

Its legal basis is laid down in the 1983 Act on Refusal to Render War Service involving the Use of Arms on Grounds of Conscience (Kriegsdienstverweigerungsgesetz), para. 1 of which states that an individual "who conscientiously objects to take part in any use of arms between states and therefore refuses to perform armed military service referring to art. 4(3) of the Constitution, must, as a substitute, perform civilian service outside the armed forces, in accordance with art. 12a(2) of the Constitution." [3]

Substitute service is regulated by the 1986 Law on Civilian Service (Zivildienstgesetz), last amended in 1995.

The right to conscientious objection in wartime is recognised. [2]

right for whom

All men (and only men) may apply for CO status. Conscripts applying for CO status while they are serving and professional soldiers applying for CO status will always get a hearing. [1]

Red cross nurses may not apply for such status, although they must undergo 28 days' civil defence training as preparation for dealing with emergencies. [4]

procedure and practice

Applicants should apply in writing before medical examination, making a formal request based on the Constitution, and submitting a curriculum vitae, an explanation of their reasons for applying, and a copy of the entry in the public register. This should go to the Federal Office of Civilian Service of the Ministry for Youth, Family affairs, Women and Health.

The Constitution and the 1983 law do not recognise anything other than "reasons of conscience", in practice religious or moral/ethical reasons are accepted. In doubtful cases the Office forwards applications to a commission (Ausschuss Kreiswehrersatzamt), which considers the application and may hear the applicant. Since 1984 individual examinations of applications seldom take place: 90 percent of applications being accepted by the Office, 8 percent after consideration by the commission. [1] [9]

There is a right to appeal to an administrative court. Those who are not granted CO status, may face punishment if they refuse to perform military service. [2]

The legislation on conscientious objection is widely known about. Many churches and peace organisations provide advice services for COs. A significant number of conscripts 'choose' to perform substitute service. For most of them substitute service is not clearly linked to conscientious objection. They realised that in order to perform substitute service they had to declare to have a conscientious objection to military service, but many did not give the matter of conscientious objection serious thought. [6]

Research conducted in the early 90s revealed that certain industries, such as arms factories, preferred to employ people who had performed military service, while others, such as public relations or hospitals, preferred to employ those who had performed substitute service. [5]

substitute service

The length of substitute service is 13 months - three months longer than military service.

Substitute service is run by the Federal Office for Civilian Service (Bundesamt für Zivildienst) which is part of the Ministry for Family Affairs, Youth, Women and Health.

Substitute service is mainly performed in social welfare institutions (nursing, social welfare, hospitals, working with disabled, etc.). A few placements are made with NGOs.

The health sector is largely depending on COs and in many cases it wouldn't be affordable to employ professional staff instead of COs. The extent to which COs contribute to the health sector might actually be an obstacle for the abolition of conscription. [1] [9]

Payment and health insurance is the same as for military conscripts. In practice COs conditions vary from placement to placement. [6] [1]

It is not possible to perform substitute service abroad, but

COs who perform at least 15 months' (2 months' more) voluntary service abroad with a recognised organisation are exempt from substitute service (1986 Law on Civilian Service, art. 14b). This option is sometimes taken up by COs. [1] [7]

Those who have been granted CO status and state that they cannot, for conscientious reasons, perform substitute service, but who promise to work in a care or health institution for at least 25 months (12 months longer than substitute service) are exempt from performing substitute service (1986 Law, art. Obviously, this option was provided as a possible solution to the problem of Jehovah's Witnesses refusing to perform both military and substitute service. [1] [7]

3 Draft evasion and desertion

penalties

Refusing to register for military service is punishable by a fine of maximum DEM 1,000. [4]

Refusal to perform national service is punishable by up to 5 years' imprisonment (Military Penal Code, art. 109). If a draft evader gives himself up within a month and agrees to perform service, the maximum punishment is three years. [5]

Disobeying military orders is punishable by up to three years' imprisonment, and in certain cases up to five years' (arts. 19 and 20).

Absence without leave is punishable by up to three years' imprisonment (art. 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' (art. 16).

The Law on Civilian Service prescribes the same penalties for COs performing substitute service who disobey orders, are absent without leave or desert (Law on Civilian Service, arts. 52, 53, 54).

practice

In practice sentences for draft evasion range from 5 to 18 months. District courts in Germany have discretion over this, which means that sentences can vary. [4] [6]

As a rule draft evaders who got caught and then apply for CO status are not called up for military service. Those applying a second time - after rejection of an initial application - may be. If they fail to respond to call-up, or refuse to obey orders, they may be prosecuted. Subsequent recognition as a CO does not automatically terminate such prosecutions. [4]

Total objectors who refuse to perform both military and substitute service, are considered draft evaders and usually prosecuted under art. 109 of the Military Penal Code. Their sentences vary between 3 to 12 months' imprisonment, depending on the court's attitude. District courts in Germany have discretion over this, which means that sentences can vary. [6]

Since 1995 there have been some ten known court cases of total objectors, in which the given sentences ranged between 6 and 16 months' imprisonment. [11]

5 History

Federal Republic of Germany

After the Second World War conscription was reintroduced in the FRG in 1956. Until 1992, Berliners were automatically exempt from the draft (because of Berlin's special post-war status). Many young men are known either to have moved to Berlin or at least to have registered there in order to avoid the draft. [6]

In the FRG the right to conscientious objection was enshrined in the post-World War II Constitution. Although its position was precarious in the early 50s, the German peace movement has always proved to be an effective watchdog of this right. Up to the mid-60s the number of applications for CO status was fairly low, about 4,000 per year. In the early 70s the number increased to about 35,000 per year, caused by the rise of extra-parliamentary opposition to German defence policy and widespread revulsion against the Vietnam war. Since then the upward trend has continued, and following German reunification the number of COs doubled to about 150,000 in 1991. As conscientious objection has greatly expanded in the early 90s (involving roughly a third of all conscripts in the 90s), it has ceased to be a politically significant antimilitaristic movement.

In 1984 some important changes were made in the CO legislation: the administration of substitute service was removed from the Ministry of Defence and the examination of applications by a board was abolished as a standard part of the application procedure. The percentage of recognitions increased accordingly, from about 50 percent in the 70s to 99 percent from 1984 on. [9]

German Democratic Republic

In the GDR conscription was reintroduced in 1962 as an 'honourable duty to defend the fatherland'. In 1964 the government allowed COs to perform non-combatant duties within the armed forces in the so-called construction troops, which could entail working at street and traffic construction as well as working at military objects. At that time, the GDR was the only Warsaw Pact state to introduce some kind of legal provision for conscientious objection. All those serving in the construction troops were, however, under observation by the Ministry of State Security and they could face difficulties in later life finding employment or gaining admittance to university. [9] [10]

The first cohort in the construction troops in 1964 consisted of about 220 so-called 'spade soldiers'. The number increased from about 200 by 1970 to about 1,000 per year by 1980. Most of them were members of Christian denominations. [9] [10]

Some COs were not drafted at all, mostly members of religious groups that refused to perform unarmed military service. Other total objectors were sentenced to imprisonment. In fact there have been COs refusing to serve in the construction units ever since the 60s. Until May 1966, 20 'spade soldiers' objected to military orders and were sentenced under the Military Penal Code. And in 1978 a young man from Jena was sentenced to 24 months' imprisonment for total objection. [9]

The Protestant church in the GDR has always been advocating generous and liberal regulations for COs. In 1981 a small group of peace activists, including employees of the Protestant church of Saxony, made detailed proposals for a 'social peace service'. Although unsuccessful, the initiative generated considerable interest amongst young people in the GDR. [10]

In the 80s conscientious objection became more and more apparent. From 1986 on the number of total objectors increased and 67 total objectors were planned to be arrested. In 1986 the government decided not to prosecute total objectors and COs refusing to perform reserve service, in 1988 a directive was released to withdraw the call-up order and arrest of those conscripts declaring themselves COs up to 24 hours before call-up. This directive was used during the May 1988 call-up for about 700 COs. In October 1991, just before reunification, the government eventually passed a law allowing for a substitute service outside the armed forces. [9]

after reunification

Ever since the end of the cold war in the late 80s, the need for conscription has been debated. For the most part this discussion has concentrated on the question of introducing compulsory civilian service. With the reunification of Germany, the use of national service as a tool of integration was advanced as a further argument for retaining conscription. In 1991, an 'independent commission on the future role of the national army' concluded that although a professional army might be a suitable response to deal with the current needs, it was necessary (anyway for the time being) to retain conscription in order to have enough potential volunteer troops. Accordingly, parliament voted to keep conscription. This discussion is still going on as part of the discussion on the role of the armed forces. From 1996 on the armed forces were to comprise two parts: a Crisis Reaction Force of about 50,000 troops for "out-of-area and UN/NATO missions", consisting exclusively of professionals; and a defence force, some 290,000 strong, two thirds of whom would be conscripts.

The constitution clearly states that the German armed forces are to be used exclusively for defence. Ever since 1989 there has been debate about "out-of-area missions" under the NATO or UN flag. Although there have been experiments over this in Somalia and Yugoslavia, it has been stated that participation of conscripts in "out-of-area missions" must be purely voluntary.

6 Annual statistics

The armed forces comprise 347,100 troops (which is about 0.43 percent of the population).

Each year about 460,000 young men reach conscription age. There are 152,560 conscripts in the armed forces. [8]

Each year roughly a third of conscripts are exempted, a third perform military service and a third are granted CO status and perform substitute service. [6]

The following table gives the number of CO applications in recent years (pre-1991 figures refer to the Federal Republic of Germany): [1] [4] [5]

1988 77,048

1989 77,432

1990 app. 85,000

1991 app. 150,000

1992 app. 130,000

1995 app. 130,000

About 95 percent of applications are granted.

Every year there are an estimated 30 total objectors. [11]

Sources

[1] Schmid, G. 1994. Wehr- und Zivildienst in Europäischen Ländern, Informationen, Analysen, Unterrichtbausteine. Wochenschau Verlag, Schwalbach. [2] Silvestri, A. 1993. Conscientious objection to military service: a regional human right? Institut Universitaire de Hautes Etudes Internationales, Geneva. [3] UN Commission on Human Rights, 1994. Report of the Secretary-General prepared pursuant to Commission resolution 1993/84 (and Addendum). United Nations, Geneva. [4] War Resisters' International 1990. Country report. WRI, London. [5] Bundesamt für Zivildienst 1996. [6] Information provided by Anton Luccioni 1997. [7] Corrections to the draft report by Stephan Brues (DFG/VK Velbert) 1997. [8] Institute for Strategic Studies 1997. Military Balance 1997/98. ISS, London. [9] Information provided by Kalle Seng (East West Peace Workshop, Hamburg), 16 June 1998. [10] Kühlmann, J., E. Lippert 1993. 'The Federal Republic of Germany: Conscientious objection as social welfare', in: Moskos, C.C. and J.W. Chambers II (ed.), The New Conscientious Objection, from sacred to secular resistance. Oxford University Press, New York/Oxford. [11] Information provided by Detlev Beutner 1998.

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