Integration of Armed Forces in a Democratic State Under the Rule of Law*

Dr Fritz Wittmann
Chairman of the Defence Committee of the German Bundestag, Bonn

*Edited version of a paper presented at a conference on Taking the South African Army into the Future, hosted by the Institute for Defence Policy in conjunction with the Hanns Seidel Foundation and the Departemnt of Political Sciences, UNISA on Monday, 15 November 1993, Pretoria

Published in African Defence Review Issue No 14, 1994

INTRODUCTION

After the Second World War, tensions between East and West increased. In response the Federal Government endeavored to firmly integrate West Germany in the community of the free nations of the West. This situation soon led to the question of a West German contribution to the joint defence of the West. In the Paris Treaties, the Federal Republic of Germany was called upon to join the North Atlantic Treaty Organisation (NATO) and the newly created Western European Union (WEU). The German contribution was not to exceed a total strength of 500 000 men. On the 5th of May 1955, ten years after the end of the war, the Federal Republic of Germany became a member of NATO.

From the very beginning, the Bundeswehr was conceived as an armed force in an alliance. Its structure and equipment were geared to an integrated defence together with its partners in the alliance. Compulsory military service, the 'legitimate child of democracy' (President Heuss), - initially 18, later 12 months - corresponded to the general political and social feeling in the Federal Republic of Germany at that time. This feeling was likewise reflected in the possibility, anchored within the constitution, that the individual could refuse to do military service or be entitled to render a substitute civilian service instead, on grounds of conscience.

For the first time in German military history, command and control of the Bundeswehr rests with politicians responsible to Parliament: in peacetime with the Federal Minister of Defence; in wartime with the Federal Chancellor. In peacetime, command, training, equipment and armament, organisation and supply support of those forces earmarked for NATO are designed to be in line with the planning of NATO. During a State Defence (i.e., war), operational command and control of all forces committed to the Alliance passes to the NATO Supreme Allied Commander. Under the constitution the transfer of such sovereign powers is temporary and it does not affect the military sovereignty of the Federal Republic of Germany.

Unlike the President of the Reich of the Weimar Republic, the Federal President does not have executive military power. He is responsible for the appointment and dismissal of commissioned and non-commissioned officers and civil servants of the Bundeswehr Administration, though most of these tasks are delegated to the Federal Minister of Defence. In accordance with the contitution, the Federal President promulgates the state of defence determined by the Bundestag (Federal Parliament).

Even in Emergency Situations the essence of the constitution remains unaffected. However, a simplification of procedures and an additional limitation of basic rights is inevitable; particularly in times of increased international tensions (State of Tension) or when the territory of the Federal Republic is attacked by armed force or such an attack is directly imminent (State of Defence).

A State of Tension which requires an increase in defence readiness, is determined by the Bundestag. Legal provisions which may be applied when a State of Tension is determined include a law compelling the gainfully employed to continue their work, a law permitting the control of the economy and laws aimed at securing the flow of traffic, the supply of food to the population and the evacuation of endangered areas.

A State of Defence is determined by the Bundestag with the consent of the Bundesrat at the request of the Federal Government. Where there is no quorum in the Bundestag and immediate action is imperative, an emergency parliament - the Joint Committee - can determine a State of Defence. Two thirds of the members of this Joint Committee must be deputies of the Bundestag and one third members of the Bundesrat. Emergency laws apply during a State of Emergency. Thus women may be assigned to medical services, legislative processes may be accelerated, part of the competence of the Laender (states) will pass to the Federal Government, conscripts may be drafted faster and military criminal courts may be established within the armed forces. Legislation by the Joint Committee may at any time be repealed by the Bundestag with the consent of the Bundesrat. The State of Defence must be terminated without delay when the prerequisites for its determination no longer exist.

Parliamentary supervision of the Bundeswehr is mainly exercised by the Committee on Defence, as laid down in the constitution. The Committee on Defence could also convert itself into a committee of inquiry. Upon a motion of one quarter of its members it must make a specific matter the subject of investigation. An investigation will therefore be conducted even when this may be against the wishes of the majority. Activities of the Committee on Defence comprise the entire area of military defence including the civilian Bundeswehr Administration, except for civil defence which falls within the jurisdiction of the Federal Minister of the Interior.

The budget of the Federal Minister of Defence is examined in the annual deliberations of the Budget Committee. The defence budget must, apart from the appropriation of funds within the different chapters of the budget, also show the numerical strength and general organisational structure of the Armed Forces. The Budget Committee can control all government projects that have financial implications by blocking budget funds for a limited period. By deciding on the financial means for personnel and equipment of the Armed Forces, the Parliament also influences their strength and structures.

The post of Defence Commissioner (Military Ombudsman) was instituted in 1956 as an important institution for the exercise of parliamentary control of law and order within the Armed Forces. It had the Swedish Plenipotentiary for the Military as model. The Defence Commissioner is appointed 'to safeguard the basic rights and to assist the Bundestag in exercising parliamentary control'. As an auxiliary organ of the Bundestag this person is dependent upon directives of the Parliament or the Committee on Defence; as the guardian of the basic rights of the servicemen he acts, at his own discretion, when he learns of circumstances leading to the conclusion that principles of leadership were violated within the Armed Forces. In accordance with the Law on the Defence Commissioner every serviceman is entitled to appeal to the Defence Commissioner directly. Such an appeal may not be punished. The Defence Commissioner has no executive power, but he is free to direct a matter to the agency responsible for initiating a criminal or a disciplinary procedure. At the end of each calendar year, he submits to the Bundestag a report on the results of his control activity which is discussed comphrensively in Parliament.

The primacy of politics over the Bundeswehr is secured by the following means:

the exercise of supreme command by a member of the Federal Government responsible to Parliament, the Federal Minister of Defence;ion or of Defence by Parliament;



the existence of a Committee on Defence with the powers of a committee of inquiry;



control of the defence budget by Parliament;



the transfer of the right of appointing and dismissing commissioned and non-commissioned officers to the Federal President; and



the existence of a Defence Commission



the determination of a State of Tenser to safeguard the basic rights of servicemen and as an auxiliary organ of the German Bundestag in the exercise of parliamentary control.

The task of the Bundeswehr in accordance with the constitution is 'defence' in the sense of Article 51 of the Charter of the United Nations, i.e., self-defence against outside attacks on the territory of the Federal Republic of Germany and defence against such an attack on her partners in the Alliance, in other words the right to collective self-defence. The constitution forbids the preparation for war of aggression or acts tending to disturb the peaceful relations between nations, thus corresponding to the ban of force within the Charter of the United Nations.

Except for defence, the Armed Forces may only be employed to the extent expressly stated in the constitution, namely assistance in the event of natural disasters or particularly grave accidents, protection of civil property and traffic control during a State of Tension or of Defence; and in the combatting of organised and militarily armed insurgents during an internal emergency endangering the territorial integrity or the free democratic basic order of the Federation or a Bundesland (state). This applies to existential emergencies of the country due to grave internal unrest, for instance situations similar to civil war, but not to violent activities of criminal organisations. The Armed Forces are not allowed to take the place of police and may not assume police tasks.

The constitution also provides for the integration of the Federal Republic of Germany in a system of mutual collective security, for instance NATO, the WEU, the Conference on Security Co-operation in Europe (CSCE) and the United Nations. With its accession to the UN in 1973, the Federal Republic of Germany assumed all rights and duties resulting from the UN Charter without any restriction. These include military measures of constraint according to Chapter VII of the UN Charter (which in the former government's text of implementation was unequivocally accepted as an obligation binding the Federal Republic of Germany). This is currently under intensive discussion in the Federal Republic of Germany.

Regarding the structure of the Bundeswehr, the constitution demands the separation of the Armed Forces and the Armed Forces Administration. The Armed Forces were organised in Army, Air Force and Navy - at an approximate ratio of 6:3:1 - and in central military agencies as well as central medical and health services. The civilian Armed Forces Administration separated from the Armed Forces has its own administrative structure for meeting the Armed Forces' personnel and material requirements. The personnel of the Armed Forces Administration amounts to about 35 percent of the Armed Forces. The Armed Forces Administration also includes the armaments sector which is responsible for developing, testing and procuring future military material.

The separate areas are 'combined' in the person of the Minister of Defence. The responsibility of the Minister for his ministry is indivisible. In accordance with the will of the legislator, he has to see to it that all tasks performed within the Bundeswehr are performed by a military body at his direct order and acting under his responsibility. As a ministerial working staff, the Federal Ministry of Defence has the function of supreme command over the three services, the medical system and the central military agencies. It is at the same time the central body for the Armed Forces Administration including the armaments sector, military justice and military chaplaincy.

The Armed Forces Staff is not a general staff of the type found in earlier German armies. A political decision was taken to dispense with a national general staff as a result of the decision to build up the Bundeswehr strictly as an alliance army. We therefore gave up such classical national responsibilities as operational planning and operational command and control. The Ministry of Defence features only a limited inter-service component for the conduct of operations during a State of Defence.

The highest-ranking soldier in the Bundeswehr, the Chief of Staff Federal Armed Forces, is responsible to the Minister of Defence for the development and implementation of an overall concept of military defence within the framework of political requirements and for the resulting Bundeswehr Plan. In his capacity as a ministerial representative he has the right of inspection and direction of the chiefs of staff of the three services. In view of the provisions of the constitution (authority for command and control rest with a politician responsible to Parliament) his tasks do not include the political area of responsibility of the direction of the Ministry. He, therefore, cannot deputise for the Minister regarding authority for command and control over the troops. The office of Chief of Staff, Armed Forces Staff, in the grey area between politics and military leadership, requires a highly developed sense of proportion in respect of political contexts and developments. He is the chief military adviser to the Federal Government.

THE CONCEPT OF 'INNERE FÜHRUNG'

The Bundeswehr is the first conscript army in a democratic German state. Upon establishment it had to be integrated in a democratic state under the rule of law based on the respect of human dignity, learning from the experience and mistakes of the past. The traditional opposition between democratic and military structures had to be overcome as far as possible. Thus a serviceman who has sworn to 'bravely defend the right and the freedom of the German people' cannot be deprived of these rights of freedom. On the other hand, because of the particular nature of military service and especially in view of the principle of order and obedience, which is indispensable for the functioning of any armed force, it is not possible to safeguard all the rights of the serviceman. Yet, restriction of these rights of freedom takes place within narrow limits. It is only admissible within the framework of military requirements and commensurate with military duties. Thus, for instance, a soldier is forbidden to execute an order which constitutes a crime against humanity, a violation of international law or other civic and military legal principles.

For the first time in German military history, the duties and rights of all soldiers were laid down in the Legal Status of Military Personnel Act (Military Service Act). In accordance with this Act, all servicemen - conscript or professional, corporal or general - are united in the similarity of their duties.

Even during the negotiations about the European Defence Community, the German negotiators submitted some 'shocking' ideas regarding the unconventional modernisation of the situation within the then intended European armed forces. This concept called Innere Führung was built up nationally. New ground was broken in the attempt to harmonise the ethical concepts derived from military tradition with the changed political and social situation of our times. The concept of Innere Führung, which is considered part of overall military leadership, applies to all levels and all functions. It is intended to achieve three main goals: legitimacy, integration, and motivation.

Legitimacy, meaning the legal, political and ethical justification of the mission of the Bundeswehr and the obligation of the citizen to render military service.



Integration, meaning the integration of the Bundeswehr and the individual serviceman in state and society and into the North Atlantic Defence Alliance.



Motivation, meaning the willingness of the serviceman to render his service faithfully and with conviction, to do his duties to the best of his ability and to accept the limitations of his basic rights as stipulated in the Military Service Act.

Innere Führung has its place in the following areas: modern leadership of men, care and welfare, political education, military discipline and military justice.

The leadership of men is based on the example and credibility of a military superior. It requires both the superior and the subordinate to co-operate responsibly. The serviceman entrusted to the armed forces is respected in his dignity and individuality, and the development of his personality is promoted. The state's provident care is a result of the mutual relationship of trust and mainly comprises material and financial benefits such as benefits for sickness, assistance and payments in accordance with the Military Pensions Act. But care and welfare also include duties of the superior laid down in the Military Service Act and going beyond the scope of everyday duty. He is expected to have empathy, the right sense of proportion when he demands performance and a sense of justice and caring for his subordinates - even when these are off-duty. In meeting these requirements the superior has ample freedom.

Political education in the Armed Forces serves to illustrate that the basic order of the state and its constitution are worthy of protection; it also promotes the ability of the serviceman to recognise and reflect on his role in state and society. It guides the serviceman in asserting his civil rights, to recognise the political importance of a soldier's duties and to act accordingly. Further subjects of education beyond military matters deal with ethical and moral questions, history, international law and topical social and economic questions.

Military discipline aims to maintain the legal duties and rights of the servicemen. Within the field of military justice. Innere Führung 'guarantees the citizens in uniform the same civil rights enjoyed by any other citizen: they may participate in the shaping of political opinions and will. They may become members of any constitutional party and have the right of voting and being elected. The freedom of co-alition also allows for membership and co-operation in trade unions and professional associations.

On the other hand, as a result of his general obligation to serve loyally, the serviceman has to respect the free democratic basic order laid down in the constitution and to help to maintain it. This obligation demands of the serviceman that he keep his distance from groups and endeavours which attack, fight and defame this state, its constitutional organs and the effective constitutional order. Within and outside his hours of duty, he has to contribute to the functioning of the Bundeswehr as a military organisation and to refrain from doing anything which might weaken it in the mission assigned to it by the constitution.

In this area of tension between discipline and freedom, the position of the superior is not coined by more rights, but by more duties. Apart from military training, special emphasis is placed on educating the young conscripts.

Innere Führung is both a politically and socially efficient concept for modern personnel management as well as the basis for decisive military action in dangerous situations. Apart from Germany's legal and social norms, the different components of Moral Leadership have their roots in age-old military traditions and experiences. Thus it was necessary to maintain a proven way to military success, which had been found in nineteenth-century Germany and been called mission-type tactics, and to incorporate it during the new build-up of the Armed Forces. To us mission-type tactics, as opposed to pure order-type tactics, is the product of solid military training; the education towards intelligent obedience in the framework of the whole and the delegation of leadership responsibility at all levels. Thus, mission-type tactics should increase military efficiency, especially when chains of command and lines of communication no longer exist.

Due to its complexity, there is no official definition, nor correct translation for Innere Führung. It is a social, legal, pedagogical, moral and military-oriented concept permeating all areas of military life. It is a concept for shaping militarily efficient, democratically controlled and socially integrated armed forces.

THE BUNDESWEHR IN A CHANGING WORLD

At present, together with her partners in the Alliance, Germany is faced with redefining, in her defence and security policies, her contribution to a new order of security in and for Europe. Germany has profited from the revolutionary changes in Europe in a special way. We, therefore, feel a strong obligation to commit ourselves where the rights and freedom of other nations are endangered.

A key question for our security and for that of Europe are the developments in Central and Eastern Europe. No less is at stake than the reorganisation of the security relations on our continent, which includes our North American partners in the Alliance as well as the new democracies in Central and Eastern Europe. We cannot afford an attitude of 'business as usual', and in view of the many new international focuses of crises we cannot take too long. Following developments in the former Yugoslavia, war has returned to Europe.

We also have the rare historical opportunity for a comprehensive political integration and for improving our collective ability to cope with those crises which threaten international security both through joint action as well as by means of international law. Today, more than ever before, security is a common task and cannot be dealt with on a purely regional or territorial basis any more. The term 'out of area', which was coined during the epoch of confrontation between East and West has lost its meaning in a time of the global security responsibility of the United Nations. As a result of this extended security concept, which now comprises political, economic, ecological, social and military aspects, the German Armed Forces are faced with an extended defence mission which we feel should optimally be resolved by multinational force structures - multinational also in order to prevent renationalisation tendencies.

Before turning to the mission and tasks of the Bundeswehr in a changed political environment, let me sketch our concept of overall defence. By this we mean all allied and national measures of defence and protection. These measures comprise military and civilian elements, which are intertwined in many ways and which are closely connected. In accordance with the federal structure of the Federal Republic of Germany, the Federation is responsible for the overall planning, the military aspects and parts of civil defence. Other parts of civil defence are the responsibility of the Laender, the districts or of local governments. The Ministry of Defence is responsible for the military component of overall defence. The civil element falls under the Minister of the Interior. The supreme coordinating agency for this overall defence is the Federal Security Council, a cabinet committee chaired by the Federal Chancellor. This body is tasked with harmonising the Defence Policy Guidelines, which are developed in the Ministry of Defence as the basis for armed forces planning (supposed to have about a 15 year perspective). These guidelines define principles of security policy, the mission of the Bundeswehr, and the essential tasks of the Armed Forces.

The profile of the Bundeswehr, naturally, has changed since 1990. The Defence Policy Guidelines no longer require 'the sole defence capability against a permanently threatening aggression, but 'flexible crises and conflict management in an extended geographical environment as well as peace missions and humanitarian employment'. Sources of potential conflict which could affect the security of the Federal Republic of Germany are difficult to predict as far as probability, intensity and threat are concerned. This requires a high degree of flexibility in the planning process, for we do not know what type of Bundeswehr we are going to need (or be able to afford) in ten or fifteen years time. Essential elements of our future Armed Forces, however, should be the rapid availability of substantial forces with a high measure of mobility. We also want to maintain liability for military service as a central element of our security strategy, as the link between the Armed Forces and society.

Apart from this new orientation in security policy, the Armed Forces have to meet two major requirements: first of all the integration of personnel and some material of the former East German Army into the now common Bundeswehr (which I shall address later) and then the simultaneous reduction in personnel strength from 495 000 men to 370 000 by the end of 1994 in accordance with the Treaty on Conventional Forces in Europe. This task of reduction was particularly difficult because of the roughly 100 000 men who had remained in the East German Army at the time of unification. This meant that actually the personnel strength of the all-German Armed Forces of about 600 000 men has to be reduced to 370 000 - about 40 per cent.

These requirements and the extended mission of the Bundeswehr will of necessity lead to a change in its structure. As a result of the change in the security situation, its main emphasis will pass from the Main Defence Forces for the protection of territorial integrity to Crisis Reaction Forces which are to be available for crisis management within NATO or the WEU as multinational, operationally flexible and highly mobile forces. Due to the difference in their degree of availability, there are actually three categories of these forces: The Crisis Reaction Forces comprise the immediately employable Immediate Reaction Forces and the Reaction Forces which are available within 7 to 15 days. The Main Defence Forces, however, which also contain the vast potential of reservists, require much more time for mobilisation and could only be ready for deployment after several weeks or months.

The improved security situation (with a warning period of about one year in the case of a major aggression) allows the consequent reorganisation of the Bundeswehr from a force in being to a mobilisation force. However, the capability to grow in terms of both personnel and matériel must be maintained for the Main Defence Forces. On the other hand, our financial situation necessitates clear priorities for the Crisis Reaction Forces. Specifically tailored sections of the forces will be capable of assuming peace missions in accordance with the Charter of the UN in future.

THE ABSORPTION OF THE FORMER EAST GERMAN ARMY

The integration of personnel and matériel of the former East German Army into the Bundeswehr is unparalleled in modern history. The manifold tasks regarding structures, personnel, matériel and logistics which had to be dealt with, can in their impact only be compared with those of the establishment Bundeswehr in the nineteen fifties.

When in 1990 it was agreed that a united Germany could stay in NATO, the East German Army as an institution had to be dissolved, but some of its units were to be restructured and parts of its personnel were to be absorbed into the new organisation. Thus the Bundeswehr was deliberately included in the process of national unification.

On the 3rd of October, 1990, the Federal Minister of Defence assumed full command of the armed forces in the new Federal Laender. Based on the principle of 'one state one army', from this time on the parts of the consitution regarding the Armed Forces and the principles of Innere Führung also applied to the now all-German Armed Forces. The special conditions regarding the signing on, dismissal, pay and pensions of the ex-servicemen of the East German Army had therefore been settled in the Union Treaty.

The challenge was to have people who had grown up and defended two opposing social systems with their lives, grow together in one organic whole. Thus within and outside the Armed Forces the attention accompanying the merger was correspondingly high. In addition, because the population had to be convinced that people from a different army were seeking to anchor themselves in a new national community.

Generals, admirals, political officers and all those who were identified as having worked for the State Security system were not absorbed into the Bundeswehr.

The Bundeswehr command was faced with the difficult task of convincing suitable soldiers of the former People's Army that they could serve in the Bundeswehr, when at the same time it was pointed out that a great number of them had to be dismissed. For those who had to or wanted to leave the forces, welfare provision had to be made.

Members of the old Bundeswehr were expected to accept the regulars absorbed in their ranks without prejudice, to show comradeship and to assist in their speedy integration. The new comrades had to be familiarised with the democratic state under the rule of law and to the concept of Innere Fùhrung. They also had to be persuaded that they were to be given a fair chance within the Bundeswehr.

After three years the overall balance is positive. The most difficult and most critical reduction and restructuring measures have been dealt with successfully. Both regulars and volunteers have been taken on based solely on performance. An Independent Committee appointed by the Federal Government did the final screening of all the applicants for commissions as regular officers.

Open mindedness, willingness to learn and a readiness to co-operate characterises the present stage of integration. Ideological reservations are disappearing by the day. What helps is the simple fact that we are all Germans. Another reason for the successful process of integration is the high number of members of the old Bundeswehr in the new Federal States. Similarly more than 10 000 men of the former East German Army have participated in courses and seminars in Bundeswehr academies and schools in order to become familiarised with the principles of a democratic state under the rule of law and Innere Führung. Furthermore, practical experience within the forces has served to build expertise and competence in leadership.

Yet this process of integration is not yet completed. Forty years of socialist education have left their mark and cannot be erased in so short a time. Many of the soldiers who have been taken on see themselves mainly as students within armed forces which expect them to practise quite a different style of leadership to the one they had practised and had been accustomed to.

CONCLUSION

In conclusion I would like once again to consider the soldier and the way he sees himself. The Bundeswehr has been anchored in the free democratic order of the state under the rule of law for almost four decades. The demanding and embracing concept of Innere Führung identifies the Bundeswehr; it integrates the individual serviceman into society and it serves to motivate him to serve faithfully. This concept is as particular to the German armed forces as is their consequent integration into the structures of the Alliance. Solutions which we have found should, therefore, always be seen against the background of our constitution, our orientation towards the Alliance, and also against the historical background of bitter experiences. This means that it cannot be transferred to other armed forces without careful consideration.

At this moment, the Bundeswehr, more than other West European armed forces, has to make a new beginning. The re-orientation in security policy, the vast reduction in forces and radical restructuring as well as the integration of a different army would alone be enough of a challenge. But apart from this, our soldiers are to grow into a new understanding of their role and 'apart from the responsibility for their own country henceforth be ready to assume co-responsibility for the endangered freedom and well-being of other peoples and states in a closely interlocked world ' (Defence Policy Guideline).

I tend to call the radical change, which must be achieved, the most essential short term mission of the Bundeswehr. The complexity of the tasks to be achieved is such that the armed forces alone cannot do the job; this restructuring is by its very nature and dimension the task of society as a whole. It is embedded in the growing together of the two parts of Germany and in the framework of a return to political normality.

It is painful to realise that we have to say 'good-bye' to the temporary illusion of a more peaceful world, the more so because the joy about the cessation of the immediate threat 'on our, doorstep' is still widely felt. It is only natural and right that the role of our Bundeswehr is vividly discussed and that the question of maintaining the universal obligation of national service is a topic in this context.

In the fifties, it was our aim to create the 'citizen in uniform', who sees himself as an active part of the democratic system and the political process. We have reached this goal. We have servicemen whose legitimacy rests on the support of the population and who expect the 'political class' to do its duty.