FAQ

The German government wants to recruit young people for the Bundeswehr. There is political controversy over whether to use a lottery system if there aren't enough volunteers. What is the legal situation?

What are the federal government’s plans regarding military service?

The Bundeswehr needs approximately 80,000 additional active soldiers. To achieve this goal, the federal government agreed on the following plan: Young men born in 2008 and later will be required to submit a declaration of readiness, including answering questions about their height, weight, any disabilities, and qualifications.

The draft also provides for mandatory conscription for these age groups. This is accompanied by a kind of"Bundeswehr charm offensive" with which the force aims to make itself more attractive to young people. For example, it plans to pay conscripts better and even co-finance driver's licenses. If there are still not enough volunteers, conscription could be reinstated.

However, there aren't enough barracks or personnel for a return to general conscription. In their coalition agreement, the CDU/CSU and SPD agreed to align their approach with the"Swedish model." This is largely based on voluntary participation. Accordingly, Defense Minister Boris Pistorius announced that they only want to draft the"5,000 fittest and most motivated."

However, the CDU and CSU don't want to rely solely on voluntary service. New proposals also call for mandatory military service, as needed. If not enough volunteers are found, then a lottery would decide who is drafted into military service. Whether such a procedure will be implemented, however, remains unclear.

Can the Bundeswehr only draft as many as it needs?

Conscription has been suspended since 2011. However, general conscription remains in effect. This means that men can be called up for service in the armed forces from the age of 18. This is because the Bundeswehr had a huge need for personnel during the Cold War. Germany had promised its NATO allies that it would provide an army of half a million soldiers in the event of war.

Furthermore, there is also a legal reason for requiring all adult men to perform military service. The duty to defend one's country with arms in hand and, in an emergency, to risk one's own life for it is a serious violation of fundamental rights. This duty to defend the community should apply to all men, and should therefore be distributed fairly.

However, the reform model currently being discussed envisages a so-called selective or contingent conscription. If not enough volunteers sign up for the Bundeswehr, only as many men would be conscripted as are needed in the current crisis situation.

Some constitutional lawyers see this as a problem with military justice. The Federal Administrative Court also ruled in 2005 that the number of young men who are actually required to perform military service must"at least come close" to the number of those available for military service under the statutory regulations. The gap must not be too large, otherwise it would not be fair in the sense of equality required by the Basic Law.

Must military justice now take a back seat?

However, constitutional lawyer Udo Di Fabio, who wrote a report for the CDU/CSU parliamentary group in the Bundestag, believes that conscription for only as many as are currently needed is acceptable. It would take too long to return to the old system of general conscription. Because Germany now needs to quickly become"fit for military service" again, a selective or contingent conscription could be justified, even if there are problems with military justice.

CSU regional group leader Alexander Hoffmann pointed out that it could be excessive government intervention if the state drafted everyone into military service, even if not everyone was needed. Whether or not conscription on demand violates military justice is therefore controversial and would likely have to be clarified by the Federal Constitutional Court.

Can the decision to draft someone be made by drawing lots?

The crux of this issue is also military justice. The Federal Constitutional Court recognizes that there are sometimes more conscripts than are needed. It therefore grants the legislature broad discretion to regulate exemptions from military service and fitness requirements.

Because conscription is a serious violation of fundamental rights, individuals cannot be arbitrarily conscripted: exemptions from military service must be appropriate. However, if thousands of conscripts are not drafted because they were lucky in the lottery, the question arises as to whether this is appropriate.

In his brief report, Udo di Fabio concludes that the reduced personnel requirements are a valid reason for not drafting everyone. He argues that the lottery system is fair because"the chances are equal for everyone based on the random principle."

Karin Groh of the Bundeswehr University in Munich understands the arguments for a lottery system. However, she has doubts about its constitutionality:"Here, chance, and not—as required—an objectively justifiable reason, decides on profound infringements of fundamental rights and a massive inequality of burden between the young men of a given year."

Alexander Thiele, professor of constitutional law at the Business & Law School Berlin, also emphasizes that in a decision as important as conscription, the state must provide comprehensible reasons why one person is selected and another is not. Selection based on suitability is paramount.

Thiele also raises concerns that society's sense of justice could also suffer greatly if the decision were based solely on the draw. It could be very difficult for those affected to accept such a decision.