Updated October 2017. Download the pdf.
Researcher: Rebecca Hummler
- Conscription was suspended in 2011
- The Constitution still allows for the reintroduction of conscription
- The right to conscientious objection is generally recognised for professional soldiers
- Since the suspension of conscription, there are still new conscientious objectors among professional soldiers, but they are few in number.
- The military has intensified the targeting of young people for recruitment
- Germany continues to enlist minors aged 17 for military services.
Conscription has existed in Germany since 18711, with short interruptions between 1918 and 1935 and after World War II in West Germany (FRG) until 1955 when West Germany was rearming, respectively until 1962 in the case of East Germany (GDR)2. In the reunited Germany it was maintained until 1 July 2011, and was suspended by the German parliament on 24 March 2011.3 Nevertheless, conscription is still included in article 12a of the constitution (basic law)4 and can be reintroduced at any time.
Furthermore, conscription automatically applies in the state of tension ("Spannungsfall") or in the state of war ("Verteidigungsfall").5
The right to conscientious objection is generally recognised for both professional soldiers and conscripts alike.6 However, professional soldiers face greater difficulties in being recognised as conscientious objectors than conscripts.7
The German military currently (mid 2017) comprises of 178.823 soldiers, most of them being professional soldiers on fixed-term or unlimited contracts. 20.571 of them are female soldiers. 8.967 soldiers are voluntary conscripts8.9.10 Since 2001 women have been allowed access to all units of the military.11
The suspension of conscription was accompanied by the restructuring of the army and followed a new approach of the Defence Policy Guidelines that were published by the Ministry of Defence in 2011.12 The basic idea behind this approach is the reduced importance of national defence. Instead, the federal government follows now the path of the Anglo-Saxon NATO members which define security threats to their countries on a global level.13 Peace activists see this as a further step for a stronger involvement of the German military in conflicts and war zones worldwide, and therefore reject the new approach in its intentions.14
Since the suspension of conscription, the army has problems in finding enough recruits.15 The military therefore spends currently 29.9 million Euros16 for career advisors and so-called "youth officers" ("Jugendoffiziere")17. They try to recruit people at career fairs and have access to schools or universities as well as to the training of teachers or advisors working at job centres. They also organise visits for children and youth at army barracks.18
Furthermore, a number of federal states have conclude educational cooperation agreements with the military to ensure youth officers a privileged access to schools.19 Eight out of sixteen states have concluded such agreements already. These cooperation agreements include regularly held visits of youth officers as speakers at schools and institutions of higher education. Officially they do not recruit there but give talks on security policy and other topics. Most of the visits are held at schools.20
The Bundeswehr organises “Adventure Camps”21 for young people and advertises regularly in the magazine “Bravo”, the largest teen magazine in Germany. The military also runs a Youtube Channel series which is called “Die Rekruten” (The Recruits).22 The Ministry of Defence plan to run the series on regular TV channels.23
Germany continues to enlist minors of 17 years for military services.24 1,576 such minors were the army as of November 2016.25 All activities aimed at minors have received harsh criticism by children's rights activists, leftist politicians as well as the United Nations. Terre des Hommes has argued that the legal protection for children and young persons is being undermined26. The German Alliance on Child Soldiers ("Deutsches Bündnis Kindersoldaten") argues that the recruitment campaigns leave out trauma, killing and death. It highlights the consequences for minors of being in the army27 and argues that Germany violates its international obligations laid down in the UN Convention on the Rights of the Child.28
The UN Committee on the Rights of the Child expressed in a periodic report on Germany its concern regarding the recruitment of minors and on the advertising campaigns targeting children. The report recommended to "raise the minimum age for recruitment into the armed forces to 18 years" and to "prohibit all forms of advertising campaigns for the German armed forces targeting children".29
2 Conscientious objection
The constitutional right to conscientious objection is particularly a result of its complete denial during the era of Nazi Germany. Therefore it is nowadays included as a basic right in the Constitution30 under article 4 paragraph 3 (art. 4 (3)) "Freedom of faith and conscience" which states: "No person shall be compelled against his conscience to render military service involving the use of arms." The status is to be granted to those who refuse military service or to execute specific orders for reasons of conscience as described. Both religious and non-religious grounds for conscientious objection are legally recognised.
Legal provisions are laid down in the 2003 law on conscientious objection ("Kriegsdienstverweigerungsgesetz", KDV)31 which replaced the previous 1983 law on conscientious objection. The new law on conscientious objection came into effect on 1 November 2003. The law applies to professional soldiers and conscripts alike (KDV § 2 ). An application to be recognised as a CO has been explicitly referred to in article 4 (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 (KDV § 2 ). Applications must be made to the regional recruitment office ("Kreiswehrersatzamt"). But the final decision over the application is in the responsibility of the Federal Office for Family and Civic Engagement (BAFzA)32 (KDV § 2 (2) and § 2 ). If the Federal Office has doubts about the application, it may invite the applicant for a personal interview (KDV § 6 ).33
There have been no personal interviews for professional soldiers since July 2011, according to a reply of the government to a formal Questioning by the political party Die Linke34. This step has been criticised by Die Linke because the BAFzA therefore would base its decision on the written explanation only and wouldn't give CO applicants a second chance to further explain in a personal interview.35
During the application procedure, a CO applicant who is currently a soldier has to continue serving, including bearing arms. However, according to a 2003 decree of the Ministry of Defence36 it is possible to request to be relieved of the duty to bear arms (art. 2.2). If a soldier is recognised as a conscientious objector s/he needs to be released from the armed forces immediately (art. 3.2). The application procedure remains the same during the state of tension or the state of war as well as during combat (art. 3.6). The military authorities regard a release from the armed forces that 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 also have a civilian use.37
During the state of war the right to conscientious objection is guaranteed (KDV § 11) and conscripts that have been recognised as conscientious objectors may not be called up for military service. However, in a state of tension or a state of war these conscientious objectors are obliged to serve substitute service (KDV § 1 ). If they fail to do so they can be punished for abandonment of duty (Absence without Leave, "Dienstflucht") (Law on the Alternative Civilian Service of Conscientious Objectors § 53).38
The rate of recognition of conscientious objectors has fallen since 2013. The following data contains CO applications after the suspension of conscription only and therefore should refer mainly professional soldiers and some voluntary conscripts:
In 2012 the recognition rate reached its peak since the suspension of conscription so far, with 86.57 % being granted CO status (374 out of 432 soldiers).39 This has been followed by a drastic decline until 2015 with only 62.05 % being granted CO status (188 out of 303 soldiers). Further data of 2016 and 2017 are either incomplete or not available yet.40
It has been argued that the decline in recognition rates is associated with the suspension of conscription.41
In 2012 the Federal Administrative Court ("Bundesverwaltungsgericht") ruled that professional soldiers in ambulance service must not be exempted from the right to conscientious objection. Every person enjoying the basic rights laid down in the constitution must have at any time the possibility to refuse military service regardless of if they are a soldier in medical service or in other branches of the German army.42
Asylum on the grounds of conscientious objection
André Shepherd is reportedly the first case of a foreign soldier asking for asylum in Germany on grounds of conscientious objection.43 Further applications for asylum founded on conscientious objection by Syrian refugees have been reported. However, other applications for asylum referring to conscientious objection have been rejected so far.44
3 Draft evasion and desertion
According to the military penal code (WStG)45, absence without leave is punishable by up to three years imprisonment if the soldier does not return within three days (WStG § 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 (WStG § 16).
Disobeying military orders is punishable by up to three years imprisonment and in certain cases with up to five years (WStG § 19 and 20).
In cases of conscientious objection of professional soldiers, which is sometimes accompanied by disobeying orders, they are often suspended for a time afterwards. Then, they may be exempted from the army and have to pay back money they received during their training46, or, they stay in the army but are moved to another post which is compatible with the grounds of their conscientious objection. One well-known example is the case of Lieutenant Colonel Jürgen Rose47, who in 2007 successfully asked to be exempt from following military orders in regard of the Operation Enduring Freedom (OEF) in Afghanistan. He argued that OEF would be against international law and German criminal law. He was moved to another post by the Ministry of Defence with his agreement. Instead of organising the logistics for overseas deployment of the army he then worked for a department which was responsible of the administration of barracks in Bavaria. Other soldiers refusing to support specific military deployments (for example during the Kosovo war 1999 or the Iraq war 2003) were treated in a similar manner.48
Military service before the suspension of conscription in 2011 in the (reunited) Federal Republic of Germany (FRG) (1990-2011)
The rules for absence without leave, desertion and disobedience of military orders were the same before the suspension of conscription (see section 3 "penalties"). These regulations applied both to conscripts and professional soldiers. Conscripts who objected because of conscience had to serve substitute service instead (WStG § 19)49, which mainly took place in social welfare institutions.
Total objection was not covered by the basic right of freedom and conscience. Therefore, total objectors to military and substitute service were repeatedly sentenced either under military penal code (WStG § 16) or under article 53 of the Law on Alternative Civilian Service50, depending on whether they first attempted to be recognised as conscientious objectors or not. Between 2007 and 2010 several young men who were total objectors were placed in military prison for 21 days. Through disciplinary penalties some of them were sent to military prison twice (overall 40 days of arrest).51 52 Following detention in military prison, cases of total objectors would be handed over to the civilian authorities to be tried in a civilian court. They were then usually sentenced to three to six months imprisonment on probation, financial penalty or alternatively, community service. In case of refusal of payment or service, or refusal to comply with the conditions for probation, imprisonment followed.53
For military missions abroad, only professional soldiers and volunteers were to be deployed. Conscripts were not to be deployed in conflicts against their will.54
From 1973 on the length of substitute service exceeded the length of compulsory military service, varying between one to five months. The length of boths types of service were made equal again in 2004.55
There were specific groups that were exempted from conscription in the past. Women have never been subject to compulsory military service. Men could be exempted for medical reasons. Jews have been exempted from conscription up to the third generation of Holocaust victims. Further exempted groups were people with more than two siblings who had already served, people if one of their close relatives had died during military or civil service, men who were married or who lived in a civil union or who had children, priests, delinquents who served longer prison sentences or who had committed political offences, and specialised workers performing important public tasks (for example police, fire fighters).56
Military service in the Federal Republic of Germany (FRG), West Germany (1949-1990)
In 1949 the basic law for the FRG had been written, which includes conscientious objection under article 12a. After World War II, the buildup of the West German army and the re-armament of the FRG took place under protests in 1955. Conscription had been reintroduced in 1956.57
Although conscientious objection was a basic right, there were many more hurdles to objection than later after reunification. Conscientious objectors had to undergo an oral examination before a board which was able to deny them conscientious objecter status. In this so-called inspection of conscience ("Gewissensprüfung") the conscientious objecters motivation was assessed.
Due to the special status of a divided Berlin, citizens of West Berlin were generally exempted from conscription. A fact which led many young men to move to Berlin. By moving immediately after high school graduation, many were able to avoid military service as well as substitute service.58
Military service in the German Democratic Republic (GDR), East Germany (1949-1990)
East Germany reintroduced compulsory military service much later than West Germany, in 1962. Males between the age of 18 and 50 had to serve 18 months military service within the National People's Army ("Nationale Volksarmee"). Conscripts had to face reservist duties after serving military service. Conscientious objection did not exist in East Germany. It was impossible to do an Alternative Civil Service. Instead, the Germany Democratic Republic (GDR) established a non-armed alternative service within the military for religiously motivated objectors in 1964. These soldiers were called "construction soldiers" ("Bausoldaten") and they were not trained on arms but remained part of the army. There task was to fulfill works in public or military construction work.
Construction soldiers often had to face bullying and professional or educational disadvantages. For example, it was possible that after completing construction service, an apprenticeship or enrolling in university were denied.59 60
Military service in Nazi Germany (1933-1945)
In Nazi Germany the overall militarisation of the society was a primary goal for the realisation of its imperialistic, antisemitic, racist and national socialist goals. In 1933 Nazi Germany quit the League of Nations. Military courts were reintroduced in 1934 and conscription in 1935. Between 1935 and 1940, the rules for absence without leave and desertion had been toughened. Therefore absence without leave was to be punished with up to ten years if the soldier did not return within a certain period (three to seven days, depending if he was in the field or not) or if he did not return at all after a having left the army.
At the beginning, desertion was to be punished according to the same rules of the military law that were in force during the time of the German Empire. The military law of the German Empire did allow for death sentences in certain military cases but not in general. Before Nazi Germany went to war, this law was replaced by the Wartime Special Penal Code ("Kriegssonderstrafrechtsverordnung", KSSVO) that generally said that desertion had to be punished either by death or life imprisonment. With this law, death sentences for desertion were to be prioritised and no prison sentences were foreseen. It has been assumed that this circumstance was heavily influenced by Hitlers quote "A soldier may die, a deserter must die" due to the fact that independence of the judiciary was not a given any more.61
It is estimated that the national socialist military judiciary gave around 30,000 death sentences of which 23,000 were carried out. All in all, 350,000 to 400,000 soldiers (2%) have deserted. Deserters have been either subject to death sentences or had been sent into prison or military penalty units deployed at the frontline.62
With the decree against the so-called "subversion of the war effort" ("Wehrkraftzersetzung") issued in 1938, a new crime had been created by which militarisation reached its peak in German history. One year later, a second decree extended that crime to civilians. "Subversion of the war effort" punished conscientious objection, defeatism, self-mutilation, deceit as well as challenging or inciting disobedience, objection, absence without leave or desertion. In reality this included any critical expression of opinion.63 The punishments were death, or heavy sentences in concentration camps, military prisons, deployment to probationary units or to the field. Conscientious objectors especially were convicted of "subversion of the war effort". Most of the conscientious objectors had been Jehovah's witnesses, the second largest group had been reform adventists.
According to the military crime statistics, there were 14,262 convictions until 1944. It is estimated that civil courts imposed 16,560 death sentences, among the victims were many Poles from the conquered and occupied Poland and other Eastern countries. From 1943 on the "People's Court" was responsible for "subversion of the war effort" and convicted 5,214 people to death within one year. The exact numbers of victims of German military law remain incomplete.64
The end of World War II in 1945 also marked the provisional end of conscription in Germany.65
The victims of Nazi Germany's (military) law have been rehabilitated very late, beginning in 1998 with the general repeal by the parliament of all judgements of the "People's Court" and of court martials. In 2002, judgements of military courts against deserters of the German military were repealed. But the repeal of judgements because of treason did not find a majority in parliament. In 2009, NS judgements because of war treason and aiding the enemy have been repealed. However, compensation because of NS judgements has never been part of the law.66
Formerly, crimes listed as "subversion of war effort" in the Nazi era are today regulated under the German criminal code. They are called today "crimes against the defence of the country" and "disturbing propaganda against the German military".67
Military service in the Weimar Republic (1918-1933)
As a result of the defeat of the German Empire in World War I, the Weimar Republic had to stick to the rules that had been laid down in the Versailles treaty. According to article 160 of this treaty, the Weimar Republic was not allowed to reintroduce conscription. Therefore there had been no conscription throughout the era of the Weimar Republic and the army ("Reichswehr") remained limited to 115,000 professional soldiers.68
Military service in the German Empire (1871-1918)
In the time of the German Imperium, all men between 17 and 45 were subject to conscription. They could be drafted between the age of 20 and 39.69 The active time of service was 3 years, followed by 4 years of reservist duties.70 Absence without leave lasting longer than 7 days was to be punished with up to 2 years imprisonment (§ 66). Desertion was to be punished with 1 to 5 years prison, in case of reoffending minimum 5 years and if the first desertion had been in the field this was to be followed by the death sentence (§ 70 and 71).71 It is assumed that 18 Germans who had deserted in World War I have been executed.72 At the end of World War I, the Imperial German Army of the German Empire was dissolved in 1919. Instead, the "Reichswehr", a provisional and professional army, was created.73
1 Bundeszentrale für politische Bildung: Die Wehrpflicht – eine historische Betrachtung: http://www.bpb.de/politik/grundfragen/deutsche-verteidigungspolitik/203…
3 Wehrrechtänderungsgesetz: https://www.bgbl.de/xaver/bgbl/start.xav?start=//*%5B@attr_id=%27bgbl11…
4 Official English translation of the German Basic Law: https://www.btg-bestellservice.de/pdf/80201000.pdf
5 Wehrpflichtgesetz (§ 2): https://www.gesetze-im-internet.de/wehrpflg/__2.html
6 For more information on conscientious objection for conscripts look for further details at section“5 History”.
7 Legal Tribune Online (in German): https://www.lto.de/recht/hintergruende/h/bundeswehr-soldat-kuendigung-k…
8 According to the Wehrrechtsänderungsgesetz (§ 54) voluntary German women and men can become voluntary conscripts on probation for six months and can extend this period voluntarily for 17 months more: https://www.bgbl.de/xaver/bgbl/start.xav?start=//*%5B@attr_id=%27bgbl11…
10 Bundeswehr: Stärke - Militärisches Personal der Bundeswehr: https://www.bundeswehr.de/portal/a/bwde/start/streitkraefte/grundlagen/…
12 Defence Policy Guidelines by the German Ministry of Defence: http://www.planungsamt.bundeswehr.de/resource/resource/MzEzNTM4MmUzMzMy…
13 Die Transformation der Bundeswehr: http://www.bpb.de/apuz/29040/zur-transformation-der-bundeswehr?p=all
14 Bundeswehrreform: http://imi-online.de/download/factsheet_bundeswehrreform_web.pdf
16 Kleine Anfrage an die Bundesregierung,: http://dipbt.bundestag.de/doc/btd/18/124/1812462.pdf (page 11)
18 Kleine Anfrage an die Bundesregierung,: http://dipbt.bundestag.de/doc/btd/18/124/1812462.pdf (page 2 and 4)
19 Bundeswehr und Schulen: http://www.imi-online.de/download/Fact-Sheet-Schule-Bundeswehr-2017-2.p…
20 Kleine Anfrage an die Bundesregierung: http://dipbt.bundestag.de/doc/btd/18/124/1812462.pdf (page 2 and 3)
22 “Die Rekruten”: https://www.youtube.com/channel/UCZPAni75bkLnjGO8yhuJpdw
26 Terre des Hommes: https://www.tdh.de/was-wir-tun/themen-a-z/bundeswehr-an-schulen/
27 Deutsches Bündnis Kindersoldaten: http://www.kindersoldaten.info/kindersoldaten_mm/downloads/Publikatione…
29 Committee on the Rights of the Child. Concluding observations on the combined third and fourth periodic reports of Germany (CRC/C/DEU/CO/3-4): http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fP… (page 15)
30 German Basic Law (English): https://www.btg-bestellservice.de/pdf/80201000.pdf
31 Kriegsdienstverweigerungsgesetz (KDV): https://www.gesetze-im-internet.de/kdvg_2003/KDVG.pdf
32 Bundesamt für Familie und zivilgesellschaftliches Engagement (formerly known as Ministry of Civilian Service): http://www.bafza.de/aufgaben/kriegsdienstverweigerung-zivildienst.html
33 Earlier, until 1983, all applicants had to submit to such an interview, see Spiegel Online: http://www.spiegel.de/einestages/kampf-gegen-den-kriegsdienst-a-946864…
34 Antwort auf Kleine Anfrage der Linkspartei: http://dip21.bundestag.de/dip21/btd/18/023/1802356.pdf (p 5)
35 Antwort auf Kleine Anfrage der Linkspartei: http://dip21.bundestag.de/dip21/btd/18/093/1809300.pdf (p 2-3)
38 Law on the Alternative Civilian Service of Conscientious Objectors (in German): https://www.gesetze-im-internet.de/ersdig/__53.html
39 Antwort auf Kleine Anfrage der Linkspartei: http://dip21.bundestag.de/dip21/btd/18/023/1802356.pdf (p 4-5)
40 Antwort auf Kleine Anfrage der Linkspartei: http://dip21.bundestag.de/dip21/btd/18/093/1809300.pdf (p 8)
41 Antwort auf Kleine Anfrage der Linkspartei: http://dip21.bundestag.de/dip21/btd/18/023/1802356.pdf (p 2)
42 Pressemitteilung des Bundesverwaltungsgerichts (press release of the Federal Administration Court): http://www.bverwg.de/presse/pressemitteilungen/pressemitteilung.php?jah… (BVerwG 6 C 11.11)
44 Tagesschau: Kein Asyl für Kriegsdienstverweigerer: https://www.tagesschau.de/inland/asyl-muenster-urteil-101.html
45 Wehrstrafgesetz (military penal code): https://www.gesetze-im-internet.de/wstrg/index.html
46 Legal Tribune Online (in German): https://www.lto.de/recht/hintergruende/h/bundeswehr-soldat-kuendigung-k…
48 Jürgen Rose, Gewissen und moderne Kriegsführung: http://www.wissenschaft-und-frieden.de/seite.php?artikelID=2004
49 Wehrstrafgesetz (military penal code): https://www.gesetze-im-internet.de/wstrg/index.html
50 Law on the Alternative Civilian Service of Conscientious Objectors (in German): https://www.gesetze-im-internet.de/ersdig/index.html#BJNR000100960BJNE0…
52 Spiegel Online: Aus Überzeugung in die Zelle: http://www.spiegel.de/lebenundlernen/schule/totalverweigerung-aus-ueber…
55 Bundeszentrale für politische Bildung: Kriegsdienstverweigerung und Zivildienst: https://www.bpb.de/politik/grundfragen/deutsche-verteidigungspolitik/21…
57 Bundeszentrale für politische Bildung: Die Politik der Wiederbewaffnung: http://www.bpb.de/politik/grundfragen/deutsche-verteidigungspolitik/199…
71 Military penal code of the German Empire (in German): http://www.documentarchiv.de/ksr/1872/militaerstrafgesetzbuch_deutsches-reich.html