By virtue of their mission, their structure and the instruments of power vested in them, the armed forces occupy a special position in the body politic of each country. It is in the interest of the state that the armed forces should only bring their influence to bear in line with the constitutional order. This applies not only to the use of military force as such, but also to the treatment of service personnel. Depending on the form of government - democratic or authoritarian - the mechanisms for ensuring that the armed forces act in accordance with the constitution vary greatly. In democratic states, efforts are made to integrate the armed forces into society and to ensure effective control over their exercise of power. In this respect, parliamentary control has a special role to play. The instruments of parliamentary control can take many forms, ranging from the right of parliament to fix the budgetary resources allocated to the armed forces and the accountability of the civilian defence minister before parliament, to the safeguarding of the rights of service personnel. In democratic states, the way parliament exercises control over the armed forces has, in part, developed along very different lines. The form such control takes can often only be understood in the light of history. This applies in particular to the Federal Republic of Germany.
A historical review of the constitutional provisions concerning the armed forces in Germany reveals that, up until the end of the so-called “Third Reich” in 1945, the head of state was also commander-in-chief of the armed forces.
In 1949, the population in the western part of Germany adopted a new constitution based on the same principles of democracy and the rule of law as those prevailing in other countries of Western Europe and North America. It did not envisage the creation of armed forces. Only a few years later, however, as the East-West conflict deepened, the USA and Britain urged that the young Federal Republic of Germany too should make a military contribution to maintaining freedom in the West. An impassioned debate ensued among the political parties, and in society in general, over the need to reestablish armed forces this would entail. Memories of the involvement of sections of the Wehrmacht in the crimes of the Nazi dictatorship were still very much alive. The mere thought of an army produced anxiety and mistrust. Ultimately, for reasons of foreign policy, the establishment of armed forces became inevitable. There was broad political agreement that the armed forces would require special mechanisms of control if, from the outset, the possibility of any future misuse of power by the military was to be ruled out, and the principle of the primacy of politics guaranteed without reservation.
This fundamental policy decision was put into effect by placing the armed forces, as part of the executive, under the control of a minister accountable to parliament, and by setting up a Defence Committee endowed with special rights otherwise enjoyed only by committees of inquiry. At the time, the parliamentary opposition also demanded that the constitution make provision for a vote of no confidence not only in the Chancellor, as it already did, but also in the Minister of Defence. This demand was rejected by the ruling majority. As a compromise, the two sides agreed to set up the Office of the Parliamentary Commissioner for the Armed Forces as an auxiliary organ of parliament and an additional instrument of parliamentary control.
On 16 March 1956, as one of the new constitutional provisions relating to the armed forces, Article 45b was incorporated into the Basic Law. It describes the mandate and status of the Parliamentary Commissioner for the Armed Forces as follows: “to safeguard basic rights and to assist the Bundestag in exercising parliamentary control over the Armed Forces. Details shall be regulated by a federal law.”
To implement this article of the Basic Law, the Law on the Parliamentary Commissioner for the Armed Forces was promulgated on 27 June 1957. On 3 April 1959, the first Parliamentary Commissioner, Helmut von Grolman, took office. He was followed in office by Hellmuth Guido Heye, Matthias Hoogen, Fritz Rudolf Schultz, Karl Wilhelm Berkhan, Willi Weiskirch and Alfred Biehle. In 1990, an amendment of the Law on the Parliamentary Commissioner for the Armed Forces made it possible for candidates not having served in the armed forces to be elected to this office. In 1995, Claire Marienfeld was the first woman to be elected Parliamentary Commissioner. Dr. Willfried Penner has been the Parliamentary Commissioner since May 2000.
Hence, the Parliamentary Commissioner for the Armed Forces is an institution without precedent in German constitutional history. It was conceived along the lines of the “militie-ombudsman” in Sweden.
The constitutional position of the Parliamentary Commissioner
By stating that the Commissioner “shall assist the Bundestag” and by using the term “Parliamentary Commissioner for the Armed Forces”, Article 45b of the Basic Law, and the federal law enacted pursuant to it, make it quite clear that this institution is in all respects part of the German Bundestag, and thus of the legislature.
The fact that the Parliamentary Commissioner is an organ of the German Bundestag is underscored in particular by the following legal provisions:
- the Bundestag and the Defence Committee have the right, albeit limited, to issue instructions to the Parliamentary Commissioner;
- the Parliamentary Commissioner cannot take any action if the Defence Committee has made the matter in question the subject of its own deliberations;
- the Parliamentary Commissioner has a duty to report to the Bundestag;
- the Bundestag and the Defence Committee may at any time request the Parliamentary Commissioner to attend their deliberations.
The Federal Minister of Defence, over whom the Parliamentary Commissioner exercises control, is part of the executive. As a consequence of the separation of powers, the Defence Minister has no right to issue instructions to the Parliamentary Commissioner. The converse also applies.
The Parliamentary Commissioner’s official status
The Parliamentary Commissioner is neither a Member of the Bundestag nor a civil servant. He holds office under public law in accordance with the provisions of the Law on the Parliamentary Commissioner for the Armed Forces. In defining his legal status, the lawmakers took as a basis the rights and duties of a parliamentary state secretary.
During his term in office, the Parliamentary Commissioner may hold no other paid office, or engage in any trade or practise a profession, or be a member of a government or a legislative body of the Federation or a Land (federal state).
In accordance with the Law on the Parliamentary Commissioner for the Armed Forces, the Parliamentary Commissioner is represented by the Chief Administrator, who exercises his rights, with the exception of the right to make unannounced personal visits to military units, should the Parliamentary Commissioner be prevented from discharging his duties. Likewise, when the Parliamentary Commissioner leaves office, the Chief Administrator exercises his rights until a successor is elected.
The German Bundestag elects the Parliamentary Commissioner by secret ballot without prior debate. Candidates may be nominated by the Defence Committee and by the parliamentary groups in the Bundestag. The candidate who receives the majority of the votes cast by the Members of the Bundestag is elected.
Any German citizen over the age of 35 may be elected. It is therefore not necessary for candidates to have experience of military service.
The Parliamentary Commissioner is appointed by the President of the Bundestag and sworn in before parliament. He commences his term of office upon being handed his letter of appointment, or upon being sworn in should this take place earlier.
The Parliamentary Commissioner’s term of office is five years and thus one year longer than the electoral term of parliament. This helps to safeguard his independence should there be a change in the parliamentary majority following new elections. Re-election, even for more than two terms of office, is admissible.
His term of office ends upon completion of his tenure, upon his death, upon his dismissal by parliament, or upon a request by him to be relieved of his duties.
Statutory mandate and terms of reference
Pursuant to the constitution, the Parliamentary Commissioner’s mandate is to “safeguard basic rights and to assist the Bundestag in exercising parliamentary control” over the Bundeswehr. His tasks are set out in detail in the Law on the Parliamentary Commissioner for the Armed Forces.
The Parliamentary Commissioner’s mandate is defined in Section 1, paragraphs (2) and (3) of the Law on the Parliamentary Commissioner for the Armed Forces, which state that the Parliamentary Commissioner takes action for two reasons:
- upon instructions from the Bundestag or the Defence Committee to investigate specific matters (paragraph (2) - area of control subject to instructions);
- on his own initiative and exercising his discretion when circumstances come to his attention which suggest a violation of the basic rights of a member of the armed forces or of the principles of Innere Führung (paragraph (3) - area of control on his own initiative).
In addition to the area defined in paragraph (3), in which the Parliamentary Commissioner may exercise control on his own initiative, the area of control subject to instructions laid down in paragraph (2) covers the entire spectrum of parliamentary control in the defence field. This makes it clear that the parliamentary mandate of the Parliamentary Commissioner to exercise control as an auxiliary organ of the German Bundestag extends beyond the “basic rights of service personnel” and the “principles of Innere Führung”.
In practice, since 1959 the Bundestag has never issued instructions to the Parliamentary Commissioner and the Defence Committee has done so in only 25 cases. The Parliamentary Commissioner may request that the Defence Committee issue instructions to investigate specific matters.
The focus of the Parliamentary Commissioner’s activities is clearly on action which he takes on his own initiative. The circumstances which prompt the Parliamentary Commission to investigate a matter may come to his attention while visiting a unit, through information from Members of the German Bundestag, through submissions from service personnel or in other ways, for example through press, television or radio reports or as a result of the evaluation of reports from units addressed to the Federal Minister of Defence about “special incidents”.
His power of control extends to all institutions in the field of government and administration which are concerned with national defence, above all the Federal Ministry of Defence and its subordinate agencies.
The Parliamentary Commissioner does not take action where the Defence Committee has made the matter a subject of its own deliberations.
However, the tasks of the Parliamentary Commissioner are not limited to exercising parliamentary control over the Bundeswehr on behalf of the Bundestag. The Law on the Parliamentary Commissioner for the Armed Forces also assigns him the task of dealing with petitions submitted to him by service personnel. Under this Law, all service personnel have the right to contact the Parliamentary Commissioner directly without going through official channels.
The basic rights of service personnel
The “basic rights of service personnel” are identical with the general basic rights enshrined in the German constitution. Service personnel are part of a hierarchy based on the principle of obedience to orders. There is, therefore, a great deal of tension between the freedoms and rights of each individual serviceman on the one hand, and the special demands of service in the armed forces on the other. It is an imperative of our constitution that service personnel, be they conscripts, temporary-career volunteers or regular soldiers, should be guaranteed the same freedoms and rights as those enjoyed by other citizens. To this extent, therefore, service personnel are “citizens in uniform”. Their basic rights may be restricted in line with constitutional provisions but only insofar as this is absolutely essential to meet the requirements of their military duties. This requires a basis in law. Service personnel continue to enjoy the following rights, for example:
- The unrestricted right to respect for and protection of their dignity as human beings. However tough the training, for instance, service personnel may not be subjected to humiliating or degrading treatment.
- The basic right to freely express their opinions. The functional capability of the Bundeswehr may impose restrictions on service personnel’s freedom of expression. Nevertheless, service personnel are free, when they are off duty, to become active in political parties, for example.
- The basic right to protection against violation of their rights by public authority. In such cases, like all other citizens, they have recourse to the courts.
The principles of Innere Führung
In the debate over the establishment of the Bundeswehr, the concept of Innere Führung (leadership and civic education) was seen as a way of reforming the armed forces through a conscious departure from earlier traditions. It was also incorporated into the Law on the Parliamentary Commissioner for the Armed Forces without, however, being precisely defined. Down to the present day, its essence and impact have been the subject of lively debate. It is generally agreed that the principles of Innere Führung provide basic guidelines for the internal organisation of the Bundeswehr on the one hand, and for its integration into state and society on the other.
Internally, the aim is to ensure that modern principles of leadership and man management are applied. Innere Führung serves to reduce to a tolerable level any tensions or conflicts arising between the individual rights and freedoms of service personnel as citizens on the one hand, and the demands of their military duties on the other. The leadership behaviour of superior officers must be imbued with respect for human dignity - the basis of our constitutional order. Societal, political and social developments and trends in the Federal Republic of Germany, as well as the results of changes in military technology, have to be taken into account. The principles of Innere Führung find expression “in leadership and training, in the exercise of disciplinary power, in the provision of political education and information for service personnel, in concern for the individual human being, in the fostering of a sense of community outside duty hours”, as Count Baudissin, one of the spiritual fathers of the concept for reforming the armed forces, put it on 10 January 1953. A further requirement of modern leadership is that the framework of everyday life in the armed forces, marked by forms and structures of organisation, personnel management and infrastructure, ensures that each serviceman is respected as an autonomous and responsible individual.
Externally, the objective is to foster the integration into state and society of the Bundeswehr as an institution, and of all service personnel as individual citizens. They should see themselves, and be seen by others outside the armed forces, as an integral component of society as a whole. The aim is to dispel any worries that the Bundeswehr could become a “state within a state” - a danger inherent in all armed forces.
The discussion within the Bundeswehr on the concept of Innere Führung came to a provisional conclusion in February 1993, when Joint Service Regulation 10/1 - Innere Führung - was issued. It describes this concept as follows:
The objectives of Innere Führung are
- to make service personnel fully aware of the political and legal bases of the Bundeswehr as well as of the purpose and meaning of their military mission;
- to promote the integration of the Bundeswehr and its service personnel into state and society and to create greater public awareness and understanding of their mission;
- to enhance the willingness of service personnel to carry out their duties conscientiously, and to maintain discipline and cohesion within the armed forces;
- to ensure that the internal structure of the armed forces is organised on the basis of respect for human dignity and for the legal and constitutional order, and so as to facilitate the effective performance of the armed forces’ mission.
The actual substance and objectives of Innere Führung in everyday military life are laid down in a series of laws, orders and service regulations. The main statutory basis is the Legal Status of Military Personnel Act, which describes the rights and duties of service personnel, in particular in their role as superiors and subordinates. However, the application of specific regulations is not the only aspect of Innere Führung. This applies in special measure to the manner in which superiors treat their subordinates in everyday military life. They are expected to lead not only by the letter of the law but also with empathy and sensitivity. Service personnel, as citizens in uniform, should retain their freedom as individuals. They should act as responsible citizens while maintaining their operational readiness. They are not called upon to show blind obedience, but obedience born of understanding.
The Parliamentary Commissioner’s official powers
In carrying out his constitutional mandate, the Parliamentary Commissioner has the legally sanctioned power to demand access to information and to make proposals and recommendations.
Rights to information
The Parliamentary Commissioner has the right to demand information, and access to records, from the Defence Minister and all his subordinate agencies and personnel. This right enables him, when reviewing petitions, to request the Bundeswehr or other agencies to investigate a certain matter, to comment on the findings of the investigation, and to submit relevant documents to him. The right to demand information is also the basis on which he and his staff hold meetings with personnel in the purview of the Defence Minister in order to gather information and establish working contacts.
When acting on instructions from the Bundestag or the Defence Committee to investigate a specific matter, and dealing with a petition in which the petitioner expresses a specific grievance, the Parliamentary Commissioner has the right to hear the petitioner as well as experts and witnesses.
The Parliamentary Commissioner may at any time and without prior announcement visit any units, headquarters, installations or administrative agencies of the Bundeswehr. This right is vested exclusively in his person.
Field visits enable the Commissioner to meet and talk to service personnel of all ranks and thereby to gain a first-hand impression of conditions within the Bundeswehr. During such visits, service personnel bring to his attention any problems they encounter in performing their everyday military duties as well as their personal worries and concerns, which often are not expressed fully, if at all, in petitions. This allows the Parliamentary Commissioner to take preventive action by immediately passing on any significant findings to the Defence Minister.
The Parliamentary Commissioner has another major source of information: his right to request reports on the exercise of disciplinary power in the Bundeswehr and to attend criminal or disciplinary proceedings in court as an observer.
Right to make proposals and recommendations
The Parliamentary Commissioner may give the agencies involved in a certain matter an opportunity to settle it themselves. For instance, once an investigation has been completed which revealed deficiencies or incorrect behaviour he may request that certain measures be taken to ensure that there is no recurrence. He may also refer a matter to the authority responsible for initiating criminal or disciplinary proceedings. The Parliamentary Commissioner’s right to make proposals and recommendations enables him to be actively involved in the further development of the principles of Innere Führung. His proposals and recommendations do not take the form of binding instructions or orders.
The fact that the Parliamentary Commissioner’s powers are limited to gathering information and making recommendations might suggest that he is able to bring little real influence to bear. In practice, however, this is not the case. The very existence of an independent parliamentary commissioner, to whom every serviceman from private to general may have recourse, has a positive effect on the leadership behaviour of many superiors. Of particular importance in this respect is the Parliamentary Commissioner’s power to involve higher authorities, up to and including the Federal Minister of Defence, and to bring any deficiencies he detects to the attention of the Bundestag in his annual and special reports. The influence the Parliamentary Commissioner wields is not, therefore, based solely on his statutory powers but also on his moral authority, which the agencies concerned cannot easily ignore.
The right of service personnel to petition the Parliamentary Commissioner
All service personnel have the right to contact the Parliamentary Commissioner directly without going through official channels. In exercising their right of petition, service personnel can, without having to observe specific time limits, bring to the attention of the Parliamentary Commissioner any matter which they feel reflects wrong or unfair treatment. In contrast to complaints submitted in accordance with the Military Complaints Regulations, petitions do not have to be based on what is termed a “grievance”. For this reason, they can refer to the entire spectrum of official, personal and social problems service personnel may encounter in their everyday military routines. They include matters relating to the broad field of leadership and man management (e.g. rights and duties of service personnel, leadership style and behaviour, military training, and the application of disciplinary regulations, complaint regulations, duty-hour regulations and regulations regarding the representation of service personnel), aspects of personnel management in the case of regulars and temporary-career volunteers (e.g. questions relating to career paths, transfers and temporary duties, and assessments), matters of personal concern to service personnel (e.g. call-up, location and type of assignment, discharge), and matters relating to health care, accommodation, clothing and counselling as well as pay regulations and entitlements on leaving the armed forces.
Service personnel are not required to bring their concerns to the attention of the Parliamentary Commissioner themselves. Petitions addressing their concerns may also be submitted by comrades, elected spokespersons or family members; often, soldiers’ wives make submissions concerning difficulties within their families caused by their husbands’ duties. In such cases, the servicemen concerned are asked for their consent before the matter described in the petition is investigated.
All service personnel are informed about the functions and powers of the Parliamentary Commissioner when they begin training, and again when they are transferred to their parent units. Service personnel who submit petitions to the Parliamentary Commissioner may not be subjected to any disciplinary or discriminatory action for doing so. They are protected by their right of petition. Of course, this right does not cover assertions or claims which are clearly false, or of an insulting or slanderous nature. In such cases, the petitioner bears full responsibility under disciplinary regulations and criminal law. However, in exercising their right of petition, service personnel are given broad scope to express what are regarded as admissible views and opinions. The aim is to allow petitioners to unburden themselves without having to fear any backlash. Petitioners are protected against any punitive measures even if their submissions are based on exaggerations, mistaken conclusions or emotional rather than rational arguments. Civilian staff of the armed forces cannot submit petitions to the Parliamentary Commissioner. However, a matter made known by them may prompt him to take appropriate action. The same applies in the case of information received from persons outside the Bundeswehr.
As a rule, the review procedure for petitions is as follows:
The Parliamentary Commissioner checks whether the matter brought to his attention in the petition suggests a violation of the basic rights of service personnel or of the principles of Innere Führung. Should this be the case, the Parliamentary Commissioner requests comments from the agency in the purview of the Defence Minister which appears best placed to conduct an unbiased, expert and swift investigation into the matter described in the petition. In the case of petitions referring to relations between superiors and subordinates, this is normally a battalion-level agency. In the case of legally complex or very serious matters, division-level agencies are generally involved from the outset.
Once the Parliamentary Commissioner receives the comments and records he has requested, he reviews whether the investigations were conducted properly, whether evidence and the facts of the matter were correctly assessed, and whether any misconduct was appropriately sanctioned. If this is the case, the petitioner is notified of the results of the review. The relevant Bundeswehr agencies receive a copy of the Parliamentary Commissioner’s concluding letter.
In the vast majority of cases, the investigations and comments of the agencies concerned satisfy the Parliamentary Commissioner’s requirements. Nevertheless, there are many cases in which another higher-level agency is requested to conduct further investigations. Sometimes, even the Defence Minister himself is requested by the Parliamentary Commissioner to comment on the matter at hand. Understandably, this is primarily the case when a petition refers to issues of fundamental or special political importance.
If, parallel to the submission of a petition, proceedings under military complaints regulations, disciplinary regulations, criminal law or civil administrative litigation are pending, it is standard practice, in view of the separation of powers, for the Parliamentary Commissioner generally not to interfere by submitting his own assessment of the case. He suspends his investigations until a non-appealable ruling has been made. An exception is conceivable if a given incident provides grounds for considerations and conclusions which extend beyond the confines of the matter in question.
Understandably, the Parliamentary Commissioner’s performance of these two functions - exercising control over the Bundeswehr and reviewing the petitions of service personnel - is not always free of conflict. As an organ of parliamentary control, it is his task to ensure that the constitution and federal laws are complied with. In this context, compliance with regulations which are designed to ensure the operational readiness of the Bundeswehr occasionally clashes with the personal interests of petitioners.
The Parliamentary Commissioner’s annual report
The Parliamentary Commissioner is required to submit an annual report to the Bundestag for each calendar year. There are no detailed guidelines regarding its content, and he must therefore base his report on the dual task assigned to him by the constitution, namely to exercise control and to review petitions. Consequently, it deals largely with negative occurrences and incidents in the Bundeswehr. For this reason, past holders of the office have regarded the annual report primarily as a report on deficiencies and not on the overall state of the Bundeswehr.
In addition to monitoring adherence by the government to the constitution and federal laws, the purpose of parliamentary control is to enable parliament, on the basis of its own findings, to be directly involved in identifying difficulties and unwelcome developments and, as a result, to put forward ideas and suggestions for remedial action. In his annual reports the Parliamentary Commissioner therefore deals with violations by superiors and military authorities of the basic rights of service personnel and of the principles of Innere Führung; however, he also looks in depth at the general conditions under which the Bundeswehr operates and service personnel carry out their duties. In particular, he provides important indications as to the effects of existing laws and regulations insofar as they touch upon the principles of Innere Führung. He thus acts as a kind of early warning system for parliament. Naturally, his remarks and comments cannot always be free of political and parliamentary considerations.
The Parliamentary Commissioner’s annual reports are used by parliament, in particular by the Defence Committee, as a basis for discussion of and decisions on the internal development of the Bundeswehr. Thus, they draw the attention of parliament to the special concerns not only of individual members of the armed forces but also of the Bundeswehr as a whole. By virtue of his reports, therefore, which initially cast him in the role of watchdog, the Parliamentary Commissioner becomes a kind of intermediary between service personnel and the Bundestag.
The Parliamentary Commissioner’s annual report has always met with a great deal of media interest. Media coverage of the report helps to inform the general public about the concerns and problems of the Bundeswehr, and to promote public acceptance of the need for any remedial action. At the same time, it helps to focus parliament’s attention on the report.
Because the annual report examines negative incidents and trends in the Bundeswehr, there is a danger of the ensuing media coverage being one-sided and, occasionally, sensationalist. However, this cannot be a reason for the Parliamentary Commissioner not to fulfil his statutory mandate, namely to provide a true and thorough account of his findings. Moreover, the constitution, in the interests of our country’s free and democratic basic order, stresses the importance of freedom of the press and freedom of reporting by the media in general. Isolated cases of biased and ill-informed reporting are the price that has to be paid for such constitutionally enshrined freedoms.
The Parliamentary Commissioner’s annual report is addressed to parliament. It is submitted to the President of the German Bundestag in the first quarter of each year and published as a Bundestag printed paper. Immediately after publication, it is distributed among service personnel. The President refers the report to the Defence Committee, which requests the Defence Minister to comment on it. Once the Defence Minister has submitted his comments, the Defence Committee discusses the report. In the course of its deliberations both the Defence Minister and the Parliamentary Commissioner have an opportunity to elucidate and expand upon their views. The Defence Committee ends its deliberations by drafting a report and a recommendation for a decision in parliament, both of which are referred to the plenary for a public parliamentary debate. During the debate, the Parliamentary Commissioner is given leave to speak if this is requested by one of the parliamentary groups or by at least five per cent of the Members of the Bundestag. This is regularly the case.
In his comments on the Parliamentary Commissioner’s annual report, the Defence Minister also elaborates on measures needed to remedy the deficiencies it describes. The following year, parliament is informed about the progress made in this respect.
As soon as the annual report has been published as a Bundestag printed paper, an appropriate number of copies is sent to the Bundeswehr to ensure that service personnel are informed as swiftly as possible.
Petitions to the Parliamentary Commissioner
Submitting a petition to the Parliamentary Commissioner does not preclude service personnel from resorting to other forms of legal protection or redress such as, for instance, reports, counterstatements, complaints submitted under the Military Complaints Regulations, or petitions addressed to the Petitions Committee of the German Bundestag. When a petition is submitted to the Parliamentary Commissioner, any time limits set, for example on complaints filed in accordance with the Military Complaints Regulations, continue to apply. Especially in the case of disciplinary and administrative matters, therefore, service personnel must observe the statutory time limits if they do not wish to lose their formal right to legal protection.
Because service personnel may request a parliamentary review of their submissions not only by the Parliamentary Commissioner but also by the Petitions Committee of the Bundestag, these two agencies must work together. They do so in accordance with special rules of procedure, which, in order to avoid duplication and ensure the consistency of decisions, establish channels of consultation and notification. If the Petitions Committee and the Parliamentary Commissioner are requested to review the same matter, the latter takes the lead in processing it.
Here, reference must also be made to the Military Personnel Representation Act which seeks to enhance the rights of service personnel. Under this Act, service personnel of each rank group elect a spokesperson, the aim being to foster cooperation in a spirit of trust between superiors and their subordinates and to strengthen comradeship among service personnel.
The staff of the Parliamentary Commissioner for the Armed Forces
When the Office of the Parliamentary Commissioner for the Armed Forces was set up, it was assumed that the Parliamentary Commissioner would require only a small staff to enable him to perform his statutory functions. However, owing to a rapid increase in the number of submissions, his staff soon had to be expanded. This was the only way to ensure that the various Parliamentary Commissioners were at the same time able to carry out the task of exercising parliamentary control over the Bundeswehr.
At present, the Office of the Parliamentary Commissioner for the Armed Forces has a staff of around 50, about half of whom are higher-intermediate and higher service personnel directly concerned with the review of matters brought to the attention of the Parliamentary Commissioner.
The Parliamentary Commissioner’s staff are members of the Bundestag Administration, within which they form a separate Directorate-General entitled “Parliamentary Commissioner for the Armed Forces”. With regard to their work, they are under the sole supervision of the Parliamentary Commissioner; with regard to service regulations, they are under the supervision of the Secretary-General of the German Bundestag as the head of the Bundestag Administration.
The Directorate-General of the Parliamentary Commissioner for the Armed Forces is headed by a Chief Administrator, and is subdivided, in accordance with the principles of ministerial organisation, into divisions, the size and competencies of which are adapted to meet the corresponding tasks and priorities. Currently, there are five divisions.
The address of the Parliamentary Commissioner for the Armed Forces is:
Der Wehrbeauftragte des Deutschen Bundestages
Platz der Republik 1
Tel.: + 49 30 726 160-0
Fax: + 49 30 726 160-283
Today the Bundeswehr finds itself in a period of profound change. It faces a number of major challenges posed by reductions in personnel, internal restructuring to meet changing requirements, participation in UN missions and budgetary constraints. As the Bundeswehr changes, so too do the tasks and functions of the Parliamentary Commissioner for the Armed Forces. This process is reflected most clearly in the annual reports submitted by the Parliamentary Commissioners to date. Until the end of the 1980s, they focused primarily on deficits and deficiencies for which the Bundeswehr and its personnel themselves bore the main responsibility. Since then, they have dealt above all with difficulties and problems caused, and still being caused, by decisions taken by parliament and government. If he is to fulfil his statutory mandate, namely to present a realistic picture of conditions in the Bundeswehr, the Parliamentary Commissioner’s reports are bound to comment in greater detail on the impact of political decisions on the Bundeswehr and of the developments they set in train. Increasingly, therefore, he has become an advocate for the Bundeswehr and its service personnel vis-à-vis parliament and the general public. At the same time, his work has become more closely intertwined with politics than could have been foreseen when his office was established. It has become more “political”.
As a result of the Bundeswehr’s participation in operations abroad, the Parliamentary Commissioner’s role as an auxiliary organ of parliamentary control will expand even more in future.
Visits to units have had, and will continue to have, a particularly important preventive function. Past visits, for instance to units serving in Cambodia, Somalia, and the former Yugoslavia, have at any rate proved extremely beneficial. By facilitating close collaboration between the Parliamentary Commissioner and military leaders, these visits allowed many problems to be solved quickly and efficiently.
Excerpt from the Basic Law for the Federal Republic of Germany
Article 1 (Human dignity)
(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights shall bind the legislature, the executive, and the judiciary as directly applicable law.
Article 4 (Freedom of faith, conscience and creed)
(3) No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law.
Article 12 (Occupational freedom; prohibition of forced labour)
(1) All Germans shall have the right freely to choose their occupation or profession, their place of work, and their place of training. The practice of an occupation or profession may be regulated by or pursuant to a law.
(2) No person may be required to perform work of a particular kind except within the framework of a traditional duty of community service that applies generally and equally to all.
(3) Forced labour may be imposed only on persons deprived of their liberty by the judgement of a court.
Article 12a (Compulsory military or alternative service)
(1) Men who have attained the age of eighteen may be required to serve in the Armed Forces, in the Federal Border Police, or in a civil defence organisation.
(2) Any person who, on grounds of conscience, refuses to render military service involving the use of arms may be required to perform alternative service. The duration of alternative service shall not exceed that of military service. Details shall be regulated by a law, which shall not interfere with the freedom to make a decision in accordance with the dictates of conscience, and which shall also provide for the possibility of alternative service not connected with units of the Armed Forces or of the Federal Border Police.
(3) Persons liable to compulsory military service who are not called upon to render service pursuant to paragraphs (1) or (2) of this Article may, when a state of defence is in effect, be assigned by or pursuant to a law to employment involving civilian services for defence purposes, including the protection of the civilian population; they may be assigned to public employment only for the purpose of discharging police functions or such other sovereign functions of public administration as can be discharged only by persons employed in the public service. The employment contemplated by the first sentence of this paragraph may include services within the Armed Forces, in the provision of military supplies, or with public administrative authorities; assignments to employment connected with supplying and servicing the civilian population shall be permissible only to meet the basic requirements of the civilian population or to guarantee its safety.
(4) If, during a state of defence, the need for civilian services in the civilian health system or in stationary military hospitals cannot be met on a voluntary basis, women between the ages of eighteen and fifty-five may be called upon to render such services by or pursuant to a law. They may under no circumstances be required to carry weapons.
(5) Prior to the existence of a state of defence, assignments under paragraph (3) of this Article may be made only if the requirements of paragraph (1) of Article 80a are met. In preparation for the provision of services under paragraph (3) of this Article that demand special knowledge or skills, participation in training courses may be required by or pursuant to a law. In this case the first sentence of this paragraph shall not apply.
(6) If, during a state of defence, the need for workers in the areas specified in the second sentence of paragraph (3) of this Article cannot be met on a voluntary basis, the right of German citizens to abandon their occupation or place of employment may be restricted by or pursuant to a law in order to meet this need. Prior to the existence of a state of defence, the first sentence of paragraph (5) of this Article shall apply mutatis mutandis.
Article 17 (Right of petition)
Every person shall have the right individually or jointly with others to address written requests or complaints to competent authorities and to the legislature.
Article 17a (Restrictions of certain basic rights by legislation on defence and alternative service)
(1) Laws regarding military and alternative service may provide that the basic right of members of the Armed Forces and of alternative service freely to express and disseminate their opinions in speech, writing, and pictures (first clause of paragraph (1) of Article 5), the basic right of assembly (Article 8), and the right of petition (Article 17) insofar as it permits the submission of requests or complaints jointly with others, be restricted during their period of military or alternative service.
(2) Laws regarding defence, including protection of the civilian population, may provide for restriction of the basic rights of freedom of movement (Article 11) and inviolability of the home (Article 13).
Article 19 (Restriction of basic rights)
(1) Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law, such law must apply generally and not merely to a single case. In addition, the law must specify the basic right affected and the Article in which it appears.
(2) In no case may the essence of a basic right be affected.
(4) Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts. The second sentence of paragraph (2) of Article 10 shall not be affected by this paragraph.
Article 20 (Basic institutional principles; defence of the constitutional order)
(1) The Federal Republic of Germany is a democratic and social federal state.
(2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive, and judicial bodies.
(3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.
(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.
Article 26 (Ban on preparations for war of aggression)
(1) Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be made a criminal offence.
(2) Weapons designed for warfare may be manufactured, transported, or marketed only with the permission of the Federal Government. Details shall be regulated by a federal law.
Article 45a (Committees on Foreign Affairs and Defence)
(1) The Bundestag shall appoint a Committee on Foreign Affairs and a Committee on Defence.
(2) The Committee on Defence shall also have the powers of an investigative committee. On the motion of one quarter of its members it shall have the duty to make a specific matter the subject of investigation.
(3) Paragraph (1) of Article 44 shall not apply to defence matters.
Article 45b (Parliamentary Commissioner for the Armed Forces)
A Parliamentary Commissioner for the Armed Forces shall be appointed to safeguard basic rights and to assist the Bundestag in exercising parliamentary control over the Armed Forces. Details shall be regulated by a federal law.
Article 45c (Petitions Committee)
(1) The Bundestag shall appoint a Petitions Committee to deal with requests and complaints addressed to the Bundestag pursuant to Article 17.
(2) The powers of the Committee to consider complaints shall be regulated by a federal law.