Redressing the Citizen in Uniform

Emilie Aust

Halle Foundation/AGI Intern

Emilie Aust is a research intern at AGI in Spring 2024. She supports the team and resident fellows in their research with a particular focus on foreign and security policies as well as geoeconomic policy. Ms. Aust is a Master of Law Candidate at the George Washington University Law School focusing in National Security and U.S. Foreign Relations.

Prior to coming to the United States, Ms. Aust finished her first state law examination in Berlin, Germany, and gained working experience in white collar crime and criminal law. Ms. Aust will return to Berlin in the summer of 2024 to start her traineeship at the Berlin District Court.

Analyzing the Past and Future of German Conscription

The North Atlantic Treaty Organization’s 75th anniversary is a milestone. It is also a reminder of the importance of a strong security system and the need for each member state to contribute to the strength of the alliance as a whole. Germany’s handling of its military has been criticized for years internally and by Germany’s allies, mostly focused on Berlin’s low level of defense spending and the serious deficiencies in the readiness and availability of German forces. Since the 2022 Russian invasion of Ukraine, the largest armed conflict on European soil since the end of World War II, Chancellor Olaf Scholz has recommitted Germany to defense as a national priority and has begun a far-reaching effort to recapitalize the armed forces, an undertaking that is often referred to as the “Zeitenwende.” Today, with two wars raging and an unpredictable U.S. presidential election looming, Germany’s and Europe’s security is no longer a given.

In view of the threat from Russia, Defense Minister Boris Pistorius has focused on making the armed forces “war-capable” (Kriegstüchtig) and is already increasing his country’s military efforts. Among the ideas that have gained attention since 2022 is the possibility of re-introducing some form of conscription, an institution that was central to the country’s Cold War role as the backbone of NATO’s conventional forces but was ended in 2011. A recent poll shows that 52 percent of Germans are in favor of reintroducing conscription.

Historical context

The pressure of the Cold War and the start of the Korean War in 1950 created conditions for Western rearmament. Despite opposition—even violent protests—Germany officially joined NATO in May 1955, and the Bundeswehr was founded on November 12, 1955. At its founding, the Bundeswehr had 7,700 soldiers. In 1957 conscription was introduced, and troop strength grew to around 500,000 men by the end of the 1960s. In 2011, the year of suspension of conscription, there were 255,000 men and women in uniform; today there are 183,000, and the Defense Ministry’s goal is to reach 203,000 by the year 2030.

The End of Conscription (Military Law Amendment Act 2011)

The Military Law Amendment Act of 2011 ended the practice of conscription, in part due to concerns about the encroachment on the fundamental rights of young men: “The Bundeswehr is to be realigned, and the legal requirement for military service under the Conscription Act is to be suspended, except in cases of tension or defense. Especially given the permanently altered security and defense policy situation.” The infringement on fundamental rights associated with conscription could no longer be justified, according to the draft law which came into force on June 30, 2011.

At the same time, there were those who saw suspending conscription as a preemptive measure, because the law was causing public discussions on how the draft was carried out and the general need for conscription. Therefore, suspending it was easier than reforming it. The constitutional provisions that provide the legal framework for conscription have not been changed, but the executing statute has been modified and now requires a declaration by the federal legislature that the country is in a state of tension (Spannungsfall) or in response to an armed attack (Verteidigungsfall) (Art. 80a GG, Art. 115a GG).

The question today is if Germany would need to reintroduce conscription in order to maintain a well-equipped and capable army to address the threats the country faces. There are three levels to consider when talking about conscription as a solution: Firstly, conscription as a means of strengthening Germany’s defense and security within the EU and NATO in the face of the deteriorating security situation in Europe; secondly, at a societal level, a nationwide system that attracts young people from all regions, faiths, and social classes would promote inclusiveness and truly create a military made up of ‘citizens in uniform;’ and thirdly, the alternative public service system (for people who decline military service) would strengthen young people’s capacity for civic duty and increase respect and work for important (but not well-paid) jobs within society. The current debate about reintroducing conscription is driven by the first premise and the need to enhance Germany’s security and fulfill the country’s obligations to the EU and NATO. However, the first premise is necessarily combined with the third, because a core provision of the German constitution prohibits the state to force a person to bear arms. A universal service obligation can therefore only be introduced if there is also a civilian alternative. The second factor—enhancing societal cohesion through shared service—is not currently the focus but would be a by-product of any decision.

Two significant problems would need to be addressed for a revival of conscription today:

Equality Problem

The Cold War security situation in which conscription was established—the threat of a full-scale conflict with the Warsaw Pact, with West Germany as the front line of the Western alliance—was not the same after the collapse of communism and the reunification of Germany. The national priority of a large, well-equipped military in Germany gradually decreased, and as the size of the Bundeswehr declined, this resulted in a de facto end to mass conscription. This was seen as unfair by many, as only around 17 percent of each year’s cohort were conscripted by the late 2000s under a more lenient conscription system. Also, fewer young people were deemed fit for military service, and more were able to avoid it with medical certificates.  The Administrative Court of Cologne also came to this conclusion with two rulings in 2008 on compulsory military service which forced the government’s hand: “The legislature is prohibited from basing compulsory military service solely on the criterion of necessity. Equality of civic duty is only guaranteed if it is ensured that conscripts are called up comprehensively and equally. However, if only a minority performs the service and the rest are exempted by law, it is no longer possible to speak of an equal burden for all conscripted citizens.” Accordingly, it was only a matter of time until the Federal Constitutional Court (Bundesverfassungsgericht) would need to address this problem.  These factors and the demand to cut costs were incentives for then-Defense Minister Karl-Theodor zu Guttenberg and the cabinet led by Chancellor Angela Merkel to agree to amend the Conscription Act and to bring legislation before the Bundestag.

Women

At its establishment, the Bundeswehr excluded women from military service, with the exception of the medical service. This policy violated the principle of equal treatment. However, it was only in 2000 that the European Court of Justice (ECJ) overturned the ban because it violated the European Equal Treatment Directive. This opened up all military careers to women.

Afterward, Art. 12 a para.4 of the Basic Law was changed to reflect the possibility of compulsory service for women: “If, during a state of defense, the need for civilian services (…) cannot be met on a voluntary basis, women between the age of eighteen and fifty-five may be called upon to render such services. Under no circumstances may they be required to render service involving the use of arms.”

A male conscript filed a lawsuit challenging the unequal distribution of burdens between men and women in the duty to defend Germany and its allies with arms and argued that conscription was unconstitutional. The ECJ, after the case was forwarded from a German court, held in 2003 that it was for the Member States to take decisions on the organization of their armed forces and that EU law did not preclude compulsory military service being reserved to men. The German Federal Administrative Court in 2006 found justifiable and weighty reasons for this unequal treatment, since women are typically exposed to greater burdens in the family sphere than men, therefore their complete exclusion from any service obligation in peacetime is also justified. This sentiment has been echoed by some German conservatives in the context of today’s conscription debate.

Side effects of the suspension of conscription

Furthermore, there have been some social developments since 2011 related to the suspension of conscription. These would have to be taken into account because they are important for the civic and social service aspects of the conscription debate.

Alternative Civil Service

Compulsory military service was always accompanied in Germany by a system of alternative civilian service for those who refused military service for reasons of conscience. After the suspension of conscription in 2011, this alternative service was also suspended. It marked the end of fifty years of public civil service, which had involved more than two and a half million people in 37,000 different services. In 1961, the first year of service, only 574 people were called up to do community service, in 2002 as many as 135,924. To substitute for this system after 2011, the government introduced a federal volunteer service to provide as many people as possible with positive experiences through social engagement. It aimed to reduce the negative impact of suspending alternative civilian service and the social infrastructure that directly benefits from their deployment. Since its inception, the service has boasted around 35,000 volunteers each year, with a wide range of ages, with the majority of participants under the age of 27. However, these figures are far from the peak numbers of conscripts who chose to provide civilian service.

Germany is overdue to face questions about the military system and the “citizen in uniform” approach, with a lack of soldiers, a lack of adequate equipment, and constant headlines that question the German military’s competence.

Furthermore, during the conscription era, many individuals who opted for civilian service continued to support their respective organizations as volunteers after completing their service. Community service introduced many young men to careers in the social sector or voluntary social work that they had not previously considered. These factors may have contributed to the shortage of social service workers and the challenges currently faced by Germany in the caregiving sector.

Right-Wing Extremism

In addition to the generally poor image of the Bundeswehr as a profession, with its dilapidated barracks, poor equipment, and suspended military service, there have been repeated scandals involving right-wing extremists in the military. In 2017, a first lieutenant in the Bundeswehr was arrested for planning right-wing extremist terrorist attacks and posing as a Syrian refugee for months. Following this incident, Ursula von der Leyen, who was then the Federal Minister of Defense and is now the President of the European Commission, commented that the Bundeswehr had “an attitude problem,” “a lack of leadership at various levels,” and that there was “a misunderstood esprit de corps.” There have also been incidents in the elite Special Forces Command (Kommando Spezial Kräfte-KSK) where officers and commanders have sympathized with or been part of extremist groups.

The Bundeswehr’s right-wing extremism scandals over the years are not only a shame but also contrary to the idea of a ‘citizen in uniform.’ Reducing the number of people drafted and shifting to an all-volunteer force had a significant impact on the composition of the Bundeswehr. It should have been evident that the suspension of conscription and civilian alternative service would result in reducing the mix of individuals, backgrounds, ideas, and ideals from all areas of society in the armed forces. It is regrettable that these incidents cast a negative light on military service for the vast majority who serve honorably in the Bundeswehr as a pillar for the constitutional order and the security of the Federal Republic of Germany.

Can German conscription be reintroduced?

Although German conscription has been suspended, the option of reintroduction remains in the event of a “state of tension” or an armed attack. The principal objective of conscription would remain the provision of adequate personnel strength to the Bundeswehr. However, in practice, conscription following the Cold War model likely would not be reinstated due to cost and efficiency concerns. There are not enough instructors or even housing for that many conscripts—the current military structure simply could not handle the old system. Further, there are broader social costs and benefits that must be considered in order to achieve the necessary popular acceptance for such a dramatic change in the citizens’ obligations to the state. A reformed process is more likely.

How Germany responds to the growing question of conscription will be part of a broader approach to European defense policy. Federal Minister for Defense Boris Pistorius intends to develop a “decision on the direction of conscription” by 2025. He has been touring Scandinavian countries to look at their conscription systems.

European Models for Conscription Reform in Germany

The heart of the Finnish model is not the 8,000 professional soldiers but the reserve army. Of the country’s population of about 5.5 million, 900,000 people, mostly men, have reserve obligations that last until age 50 or 60 depending on rank. Depending on their unit and specialization, they must train for about a week every one to two years. The armed forces maintain weapons, ammunition, and other equipment for each reservist. Such a system is currently not feasible for Germany—there is not even one rifle for each of the 41,500 current reservists.

However, deficiencies in the German military extend beyond the inadequacy of weapons and equipment for reservists. The country’s reserve structure is also lacking in preparedness for war. The Bundeswehr has historically employed reservists to substitute for individual active-duty soldiers at their posts for limited periods or to fill vacancies in active-duty units rather than as a mass that could augment active-duty units in a crisis or war. Only recently has the Bundeswehr begun to rebuild its homeland security capabilities. Such reserve units shall safeguard critical military facilities in Germany in the event of a conflict, including airfields, ports, command centers, and air defense positions.

The Swedish system could serve as a model, as the country reintroduced conscription in 2018 after suspending it only nine years earlier. While only male citizens had to serve before 2009, conscription now applies to both genders. In peacetime, barely ten percent of each year’s cohort is called up. The exact number of Swedes to be called up is calculated according to the total wartime need for troops, currently estimated to be 116,000. Of these, 46,000 shall be conscripts. The main purpose of conscription in Sweden is to keep these 46,000 soldiers permanently in training.

The Swedish conscription model differs significantly from the German model before 2011. According to Swedish law, every man and woman must register and be tested at the age of 18. In Sweden, young people are first asked to complete a questionnaire on their health, physical condition, personality, and any offenses they may have committed. The Swedish questionnaire is followed by a selection process. Of the approximately 100,000 Swedes reaching 18 in a given year, 30,000 will be called for a two-day physical examination. Of those 30,000, approximately 6,000 to 8,000 are selected for basic military service, followed by several years of reserve service. Due to this process, a significant proportion of temporary and professional Swedish soldiers are recruited by the Swedish Armed Forces from the pool of conscripts as they reach the end of their service period.

The aspect of equity in bearing the burden of compulsory military service has practically no significance in Sweden. Given their traditions and the perceived threats to their national security, Swedes accept that the selection process is not “fair” in the sense of being borne equally across the society. This consideration plays an important role in Germany, however, as demonstrated by the legal challenges in the years before conscription was suspended, and which would likely ensue if conscription were reinstated.

The latest headlines show that Denmark intends to make changes in its conscription system. Even though the country has enough volunteers to perform the basic military service, it now wants to extend its conscription system to both men and women. 4,700 recruits complete basic military training in Denmark each year, which usually lasts four months. Women have been allowed to volunteer for military service since 1998. Last year, 25 percent of the recruits were women. Those who are allowed to join the military are drawn by lot on National Defense Day. The government plans to increase the number of recruits to 5,000 from 2026. The duration of recruit school will be extended from four to eleven months.

Danish Defence Minister Troels Lund Poulsen might have to reckon with fewer volunteers if the service period is significantly extended. If there are not enough volunteers, a lottery would be used to fill the vacancies with conscripts. In the future, all young women will also be invited to participate in National Defense Day, where men and women undergo a health check and the branches of the armed forces seek to attract recruits for their service. This gives young people the opportunity to decide if military service would be an attractive option. The Danish military union has criticized the move, but the government now wants “full gender equality,” according to Prime Minister Mette Frederiksen.

The coming months will show whether the German Defense Ministry and Chancellor Scholz’s government will be inspired by the features of these systems. At present, it appears that the coalition parties are divided on this topic. FDP Chairman and Minister of Finance Christian Lindner has spoken against compulsory military service, saying it would be better to strengthen the reserves, since “the economic costs in view of the labor shortage in an aging society would be very high.” Green Party co-leader Omid Nouripour said, “I don’t think conscription is necessary,” but he declined to rule it out now because it the situation is too fluid. The Greens argue that conscription leads to higher costs and would not necessarily increase the country’s defense capacities.

The Parliamentary Commissioner for the Armed Forces Eva Högl (SPD) emphasized that “nobody wants to reactivate the old compulsory military service. The debate is about new models and concepts,” arguing for a service model in which the Bundeswehr would receive the necessary personnel but would stand alongside other forms of “social service,” which could include social, cultural, and environmental areas in addition to the Bundeswehr.

For now, the leaders most receptive to introducing a new conscription system are Defense Minister Pistorius, Armed Forces Commissioner Högl, and the center-right opposition Christian Democratic Union/Christian Social Union (CDU/CSU). Commenting on the shortage of personnel in the armed forces, CDU Chairman Friedrich Merz said that more soldiers were needed: “That’s why the debate about introducing the Swedish model is right… This would be a first step that could lead to general compulsory service or a compulsory social year.”

Whether Germany can agree on a solution before the federal elections in 2025 is questionable. Chancellor Scholz (SPD) has stated that “we will not go back to a conscript army of 400,000” and has said that introducing a form of obligatory mass service for young people would also require a change in the constitution. Scholz may not want to make this an election issue, and he would also need support from the opposition to reach the two-thirds majority needed to amend the constitution.

What is certain is that in 2024 Germany is overdue to face questions about the military system and the “citizen in uniform” approach, with a lack of soldiers, a lack of adequate equipment, and constant headlines that question the German military’s competence. Reforming the conscription system would make German security less dependent on the actions and political decisions of other nations, strengthen international bodies, and make Germany a more effective ally within the EU and NATO. One possibility for reform would be the reinstatement of a service requirement but with many different options for service. This could include military service and civilian service, or even an option to enter diplomatic service. With widely diverging positions among the political parties and the need for a constitutional majority, a durable conscription institution with public support would have to be embedded in a system of national service that enhances Germany’s security while improving social cohesion at home more broadly.