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I.  Historic Development

In Germany, military justice has not been a function of command since 1946 when military courts were abolished by the Allied Powers,[1] after the end of World War II.  In the early 1950s, with the outbreak of the Korean War, Germany reestablished its military forces and the legal framework for the German military was created anew in 1954, when Germany joined NATO.[2]  In 1956, the constitutional underpinnings of the new law for the military were created.[3]  At that time, the issue of military courts was debated, yet the opinion prevailed that in a new democratic Germany, soldiers had to be treated as ordinary citizens in criminal prosecutions and trials.  Since then, German soldiers (both officers and enlisted men) have been tried for ordinary crimes in the courts of ordinary jurisdiction[4] and special military courts have tried only disciplinary offenses that are peculiar to the military, such as malingering or insubordination.[5]  A constitutional amendment was enacted in 1956 that allows for the creation of a military court for times of war and deployments abroad, which was to be established by legislation.[6]  To date, however, no legislation has been passed to implement this provision, and this is ascribed to the continued German aversion to military courts.[7]

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II.  Recent Changes

The German system of administering criminal justice to the military has undergone little change since its creation, and none of these changes have eliminated the fundamental principle of subjecting military personnel to the courts of ordinary jurisdiction for the trial of ordinary criminal offenses.  In 2008, the rules governing disciplinary proceedings against soldiers were reformed.[8]  This reform, however, had no impact on the prosecution of criminal offenses committed by military personnel.[9]

A more significant change was enacted in 2013, through the Act for Venue for Armed Forces Especially Deployed Abroad.[10]  This Act establishes a special venue for the criminal offenses of soldiers thus deployed.[11]  Such offenses are now to be tried in the courts of the city of Kempten (in Bavaria).  The qualifying special deployment within the meaning of this provision is described in section 62 of the Soldier’s Act as having occurred on the basis of an international agreement and upon a formal decision of the Federal Cabinet.[12]

This special venue for the offenses of deployed soldiers was created after Germany had encountered much difficulty in trying offenses committed abroad, particularly because prosecutors had difficulty investigating such offenses in that they lacked the necessary experience and understanding of the circumstances under which offenses were committed, often in combat settings.[13]  This difficulty began to be noticed after German soldiers were first deployed abroad, beginning in the early 1990s.  An interim solution was found in 1994 by entrusting the prosecutors of the City of Potsdam with the investigation of the offenses of the deployed forces.  This was done on the basis of an agreement of the chief prosecutors of the German states.  A statutory solution was deemed preferable, however.[14] 

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III. The Current System

A.  Disciplinary Offenses

The Military Offenses Act describes the types of disciplinary offenses that apply to soldiers, within the German meaning of the term—that is, all members of the Armed Forces, be they enlisted men or officers—and to civilians with command powers.[15]  The offenses that can be committed by these persons fall into the categories of offenses against military duty, offenses of subordinates, offenses of supervisors, and miscellaneous other offenses.  Offenses against military duty include desertion, absence without leave, and malingering;[16] offenses of subordinates include insubordination and mutiny;[17] and offenses of supervisors include various abuses of the power of command and the failure to supervise diligently if this results in serious harm.[18]  These offenses are punishable with imprisonment of two weeks to six months, to be served in a military facility that emphasizes training.  Serious forms of some of these offenses, however, are criminal offenses with much more severe punishment frameworks (see subpart B, below).

Military offenses are adjudicated by troop service courts.[19]  These are disciplinary courts, similar to those existing for civil servants that are foreseen in the Basic Law as disciplinary courts for civil officials and employees.[20]  The troop service courts are composed of professional judges and lay judges; the latter are usually soldiers that are appointed by the commanding officer of the troop.[21] Decisions of the troop service courts are appealable to the Federal Administrative Court.[22]

B.  Criminal Offenses

Germany exercises criminal jurisdiction over all offenses perpetrated by German soldiers while they are deployed abroad.  Consequently, German criminal law is applied to these offenses, irrespective of the law of the place of commission.[23]  German criminal law consists of offenses governed by the Criminal Code,[24] among them offenses specifically applicable to soldiers, such as mutilation to avoid military service[25] and sabotage.[26]  Penalties for such acts include up to five years of imprisonment.  In addition, the criminal provisions found in other laws are also applied to soldiers—for instance, offenses involving narcotic drugs.[27]  Sexual offenses are governed by the Criminal Code, and the penalties are commensurate with the severity of the offenses.[28]  War crimes and similar offenses against international law are also adjudicated according to German law, through application of the German International Criminal Code.[29]

All criminal offenses perpetrated by soldiers are adjudicated by the courts of ordinary jurisdiction,[30] and the ordinary rules for jurisdiction and venue apply, except for the newly enacted venue for deployed soldiers, described above (see Part II, “Recent Changes”).  The trial court jurisdiction for a criminal offense depends on the severity of the offense, with some offenses being tried by local courts and more serious ones by regional courts, and certain offenses related to treason by selected regional courts.[31]  Venue is determined according to several criteria, including the place of commission of the offense, place of residence of the accused, and place of apprehension; following the reform of 2013, venue for the trial of offenses committed by deployed soldiers now lies in the courts of Kempten.  The selection of applicable venues is often made by higher courts.  The venue for offenses of deployed soldiers is of importance primarily for determining the investigating prosecutor, and it is now expected that the prosecutor of Kempten will have the necessary expertise to deal with these offenses committed abroad.[32] 

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IV.  Evaluation of the German System

Although the German system of military justice is at times mentioned in passing in law reviews and newspapers as an example of a truly democratic system,[33] little has been written in English of a more analytical nature.  In his article on the German Military Legal System,[34] Friedhelm Krueger Sprengel points out that the German system was “an extreme reaction against illegal behavior and decisions during the last World War,” yet he also states that the vigorous attacks against this system when originally enacted may have lost some of their meaning with the world-wide increased emphasis on treating soldiers like civilians in criminal prosecutions.  Krueger Sprengel finds that the German system does not offer a perfect solution and he questions the workability of a total breach between peace-time and war-time military justice.

A concise but useful description of the military justice system was given in 1994 by Kenneth S. Kilimik, in an article dealing with the merger of the Armed Forces of the two Germanys following German unification in 1990.[35]  Captain Kilimik points out that Germany had its first troop deployment abroad in 1991.[36]

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V.  Incidence of Sexual Offenses

According to an article in the German newspaper Süddeutsche Zeitung, some four hundred suspected sexual offenses allegedly perpetrated by military personnel were under investigation during the period August 2007 through August 2012.[37]  Among these were thirty offenses allegedly committed by soldiers against soldiers.  According to Helmut Könighaus, then Ombudsman for the Military (Wehrbauftragter des Bundestages), these figures do not indicate that sexual misconduct is a serious problem in the German Armed Forces.[38]

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Edith Palmer
Chief, Foreign, Comparative, and
International Law Division II
July 2013

 

[1] Control Council Law No. 34, Aug. 20, 1946, Official Gazette of the Control Council for Germany, available at http://www.loc.gov/rr/frd/Military_Law/Enactments/04LAW31.pdf.

[2] Friedhelm Krueger-Sprengel, The German Military Legal System, 57 Mil. L. Rev. 17 (1972), http://www.loc.gov/rr/frd/Military_Law/Military_Law_Review/pdf-files/277C7B~1.pdf.

[3] Bruno Schmidt-Bleibtreu et al., Grundgesetz Kommentar 2027 (2010).

[4] Krueger-Sprengel, supra note 2.

[5] Wehrstrafgesetz [Military Offenses Act], repromulgated May 24, 1974, Bundesgesetzblatt [BGBl.)] I at 1213, as amended, up-to-date version at http://www.gesetze-im-internet.de/wstrg/index.html.

[6] Grundgesetz für die Bundesrepublik Deutschland [Basic Law for the Federal Republic of Germany] art. 96(2), translation at http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html.  The paragraph is therein translated as follows:

The Federation may establish federal military criminal courts for the Armed Forces.  These courts may exercise criminal jurisdiction only during a state of defense or over members of the Armed Forces serving abroad or on board warships.  Details shall be regulated by a federal law.  These courts shall be under the aegis of the Federal Minister of Justice.  Their full-time judges shall be persons qualified to hold judicial office.

[7] Schmidt-Bleibtreu, supra note 3, at 2028.

[8] Wehrrechtsänderungsgesetz 2008 [Military Law Reform Act 2008], July 3, 2008, BGBl. I at 1629.

[9] Klaus Dau, Die Neuregelungen der Wehrdisziplinarordnung durch das Wehrrechtsänderungsgesetz 2008 [The Reform of the Military Discipline Act through the Military Reform Act 2008], Neue Zeitschrift für Wehrrecht 51 (2009).

[10] Gesetz für einen Gerichtsstand bei besonderer Auslandsverwendung der Bundeswehr [Act on Venue for Armed Forces Under Special Deployment Abroad], Jan. 21, 2013, BGBl. I at 89, effective Apr. 1, 2013.  See also Till Zimmermann, Der neue Gerichtsstand bei besonderer Auslandsverwendung der Bundeswehr, Neue Juristische WOCHENSCHRIFT 905 (2013).

[11] Strafprozessordnung [Code of Criminal Procedure], repromulgated Apr. 7, 1987, BGBl. I at 1074, as amended, § 11a, up-to-date version at http://www.gesetze-im-internet.de/stpo/BJNR006290950.html.

[12] Soldatengesetz [Soldiers’ Act], repromulgated May 30, 2005, BGBl. I at 1482, as amended, up-to-date version at http://www.gesetze-im-internet.de/sg/BJNR001140956.html.

[13] Gesetzesentwurf der Bundesregierung [Draft Law of the Federal Cabinet], May 18, 2012, Deutscher Bundestag Drucksache 17/9694, http://dipbt.bundestag.de/dip21/btd/17/096/1709694.pdf.

[14] Zimmermann, supra note 10. 

[15] Wehrstrafgesetz [Military Offenses Act], repromulgated May 24, 1974, BGBl. I at 1213, as amended, up-to-date version at http://www.gesetze-im-internet.de/wstrg/BJNR002980957.html.

[16] Id. §§ 15–18.

[17] Id. §§ 19–29.

[18] Id. §§ 30–41.

[19] Wehrdisziplinarordnung [Military Discipline Act], Aug. 16, 2001 BGBl. I at 2093, as amended, §§ 69–79, http://www.gesetze-im-internet.de/wdo_2002/index.html.

[20] Basic Law art. 96(4). 

[21] Military Discipline Act § 74.

[22] Id. § 80.

[23] Military Offenses Act § 1a.

[24] Strafgesetzbuch [Criminal Code], repromulgated Nov. 13, 1998, BGBl. I at 3322, translation at http://www.gesetze-im-internet.de/englisch_stgb/index.html.

[25] Id. § 109.

[26] Id. § 109e.

[27] Betäubungsmittelgesetz [Narcotic Drugs Act], repromulgated Mar. 1, 1994, BGBl. I at 358, as amended,     §§ 29–30b.

[28] Criminal Code §§ 174–184g.

[29] Völkerstrafgesetzbuch [International Criminal Code], June 26, 2002, BGBl. I at 2254, http://www.gesetze-im-internet.de/vstgb/BJNR225410002.html.

[30] Military Offenses Act § 3.

[31] Gerichtsverfassungsgesetz [Court Organization Act], repromulgated May 9, 1975, § 120.

[32] Zimmerman, supra note 10.

[34] Kruegel-Sprengel, supra note 2.

[35] Kenneth Kilimnik, Germany’s Army After Reunification:  The Merging of the Nationale Volksarmee into the Bundeswehr, 1990–1994, 145 Mil. L. Rev. 113 (1994), http://www.loc.gov/rr/frd/Military_Law/Military_Law_ Review/pdf-files/276875~1.pdf.

[36] Id. at 130 & n.66.

[37] Fast 400 mutlmassiliche Sexualdelikte seit 2007, Süddeutsche.de (Aug. 22, 2012), http://www.sueddeutsche. de/politik/bundeswehr-fast-mutmassliche-sexualdelikte-seit-1.1447243.

[38] Id.

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Last Updated: 02/28/2014