The Administration of Justice Within the Republic

• Author: Dr. Gunther Moritz
• Pages: 01

1. GESERAL INTRODUCTION

   After the surrender of the German Forces, the Wehrmacht, onMay 8th. 1945, and the occupation of Germany by the Allied Forces, it was the object of the occupation powers to dissolve the German Forces that were left and by all means to prevent the restoration of German Forces for the foreseeable future. In order to achieve this object not only were all military units disarmed and their installations rendered useless, but also all legal background for the existence of German Forces was repealed by article I11 of the Allied Control Council Law 34.

   Not only with the occupation powers, but also within occupied Germany itself, the opinion was widely held that there would be no German armed forces for decades to come. It was therefore no surprise that during the course of the progressive restoration of German sovereignty within the area of the later German Federal Republic by the three western occupational powers, the United States, Great Britain, and France, the question of the military sovereignty of Germany was hardly discussed at all.

   It was for these reasons that the problems of the armed forces and the defense of Germany were rarely mentioned during the elaboration of the German constitution, the so-called Grundgesetz (basic law), in 1948 and 1949. When the Grundgesetz was proclaimed on May 23rd, 1949, only a few provisions indicated the remaining importance of armed forces, especially for reasons of defense, within a nation. Thus, the Grundgesetz in article 4merely included the right of the conscientious objector as basic right of the German citizen, in article 26 declared the war of aggression illegal, and in the same article made trade and traffic with arms and war material subject to the approval of the Government of the German Federal Republic.

   The political development in the fallowing years-mainly the steadily increasing threat against the free countries of the world by the aggressive palicy of the Soviet Union and her satellites- * This article represents the atate of law 81 it WYPB in June 1959: however. minor ehangsli are in pi~eeid and may be put Into effect early in 1960.

   **Legal inatruetar and legal adviser to the "Command and General-Staff College" at Hamburg.

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   made it necessary for the three western occupation powers to renounce their disarmament policy and to allow the German Federal Republic to take part in the military defense of the free world. This contribution was asked for the first time in a joint deelsration of the foreign ministers of the United States, Great Britain, and France on September 14th, 1951, and was to materialize within the framework of NATO. At first, the preparatory measures intended the German Federal Republic to pay her defense contribution within a European Defense Community and therefore within integrated European forces. This plan failed because of rejection by the French National Assembly an August 30th, 1954; thus, the defense wntribution could only be realized by the formation of national forces af the German Federal Republic.

   According to international law the way for the formation of these forces was made practicable with the full restoration of German sovereignty by the former western occupation powers onMay Sth, 1955. According to German national law, however, the necessary legal foundations were still required for the formation of Forces of the German Federal Republic, the so-called Bundeswehr.

   As of March 26th, 1954, by amendment of article 73 of the Grundgesetz the Federal Republic was alreildy conceded by her parliament exclusive legislation in the field of defense and conscription, but it was only as late as March 19th, 1956, that the constitutional background for military law and military organization could be created by another amendment of the Grundgesetz. In this amendment a number of articles were inserted, which comprised the constitutional background of military law, as well as the stipulation as to which piace these forces were to take within the political life of the German Federal Republic. More-over, this amendment hinted at the strict distribution of functions between the military and the civil sectors uithin the Bundeswehr, a distribution, which was to become decisive for the solution of all legal matters within the Bundeswehr. In substance, this distribution rules that only typically military functions will be dealt with by soldiers, whilst all administrative and juridical functions are preserved for the civil sector.

   Since the formation of the Bundeswehr could not be delayed until the creation of a complete catalog of military law, a limited number of volunteers were called up on Sovember lst, 1955, according to a special law, the so-called Volunteers' Law (€reiwillipengesetz) proclaimed on July 23rd, 1956. Because of the lack of special provisions for rights and duties of the soldiers, these volunteers were placed under the provision of the existing 2 *oo mm

   MILITARY JUSTICE IN THE GERMAN FEDERAL REPUBLIC law for the civil service. This could only be a temporary measure a8 the completely different duties of soldiers and civil servants require different rights and therefore a different legal foundation.

   In the following period, these necessary legal foundations were prepared and proelaimed 88 law during 1956 and 1957. For the subsequent discussion of military law and especially the administration of justice within the Bundewehr the undermentioned laws are of the main interest:

   Soldiers' Law (Soldatengesetz) proclaimed on March 19th,

   Military Regulation on Complaints Procedure (Wehrbesch- Military Disciplinary Regulation (Wehrdisziplinarardnung)

   Military Penal Law (Wehrstrafgesetz) proclaimed on March

   A survey of these laws of the German national defense legislation will be given later in this study.

   There were different and partly very contradictory opinions on the basic question of miiitary law and especially on the administration of justice before the respective amendment of the Grundgesetz on March 19th, 1966. In spite of the fact that there were many supporters of the cause of military justice, especially as a federal and military criminal jurisdiction, in the final decision the existing civil jurisdiction was given precedence. Jurisdiction in Germany, however, is not a federal matter but rests under the authority of the German states, the Lander, which form the German Federal Republic. According to the Grundgesetz these Lander have the sovereignty in the judicature. With this decision, the "citizen in uniform,'' as the German soldier was now called, in general remained subject to the existing civil courts, 88 B sign

   of clear dissociation from the abuse of militarism and from the-however widely exaggerated-negative effects of the former German military jurisdiction. This fact is only to be understood, if one considers that the new German Bundeswehr, which was built up only B few years after the disarmament of the former Wehrmacht, and had 80 much reminiscent of the war and dictatorship, was at first met with a certain distrust, and that even after this diatrust faded away, it was not possible to change or amend the once created legal foundations correspondingly.

   The present solution to the question of the administration of justice, however, did not leave all jurisdiction over members of the Bundeswehr to the existing civil courts. As an exception military criminal courts are in peacetime allowed to be established

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   werdeordnung) proclaimed on December 23rd, 1956

   proclaimed on March 15th, 1951

   30th. 1957

   according to article 96a of the Grundgesetz (1) in case of stationing German Forces in a foreign country and (2) for German Farces embarked on naval units. Without any limitation, the military courts will be established in case a state of defense has been declared, Le., in times of an armed conflict. This authorization 80 far has not been used.

   For the procedure of disciplinary action as well ae for the procedure of dealing with complaints it has further been stipulated in article 96 of the Grundgeeetz-corresponding with the regulation for civil servanta-that the Federal Republic has the authority to establish Federal Service Courts (Bundesdienstgerichte) far the Bundeswehr. This authorization has been made use of in the Military Disciplinary Regulation (Wehrdisziplinarordnung) proclaimed on March Eth, 1957.

   It may be judged as a clear indication of the primacy of civil institutions, however, that all those jurists who are employed in legal functions within the Bundeawehr, Le., the judges of the service courts (Truppengerichte) and of the military service senates (U'ehrdiensteenate), the legal advisers (Rechtsberater), and legal teachers (Rechtslehrer), are civil judges and civil servants respectively and not military jurists. Moreover, all legal matters are under the supervision of a civil subdivision within the Federal Ministry of Defense. This supervision comprises all legal matters in all services (Army, Air Force, Navy) as all legal matters are subject to the same legal provisiona and are dealt with uniformly.

   In the fallowing parts, the military law of the Bundeswehr shall be discussed in so far as it pertains to the judicial decisions of legal questions, legal advice, and legal indoctrination. In particular, this means the discussion of the following sectors: punishment of neglect of duties, judicial decisions on complaints, legal advice, and legal indoctrination. In this study, only those legal foundations will be discussed in detail which have been created exclusively for the Bundeswehr. As far ae other existing laws which are applicable to the Bundeewehr, or as far a8 other exieting jurisdiction over members of the Bundeswehr, as for inetance in criminal procedure, it must be referred to general publications on German law and German jurisdiction.

   11. PUNISHMEST OF SEGLECT OF DUTIESIn its widest sense, negleet of duties by a soldier of the Bundes-wehr is to be...