Concept and Fundamentals of Military Criminal Law
Das Military Criminal Law is an independent subfield of German criminal law that governs crimes and administrative offenses in connection with military service and the armed forces. It includes regulations on specific offenses that may be committed in the course of military service, within the armed forces, or in the event of defense by soldiers, conscripts, and reservists. The purpose of military criminal law is to maintain the discipline, operational capability, and military order of the Bundeswehr, as well as to protect the constitutional military defense structure.
Legal Sources of Military Criminal Law
Military Penal Code (WStG)
The central regulatory framework of military criminal law is the Military Penal Code (WStG) dated March 30, 1957 (BGBl. I p. 261). It contains specific penal provisions for conscripts and soldiers that relate to their special status and duties in the military sector.
Supplementary Legal Norms
In addition to the Military Penal Code, further laws and regulations apply:
- Military Court Procedures Act (MStO): Previously regulated proceedings before military courts, but has become largely obsolete due to the abolition of military criminal jurisdiction in peacetime.
- Criminal Code (StGB): Many general criminal offenses are also relevant for soldiers and can be applied alongside the Military Penal Code.
- Soldiers Act (SG): Contains disciplinary regulations for soldiers and governs administrative measures outside of criminal law.
- International Law Provisions: Where relevant, international law norms such as international humanitarian law and war crimes law apply.
Scope of Application of Military Criminal Law
Personal Scope
Military criminal law is primarily directed at:
- Active soldiers of the Bundeswehr
- Conscripts (according to the Conscription Act)
- Reservists, provided they are called up for training, or in the event of tension or defense
Substantive Scope
Military criminal law applies to acts and omissions that are committed during military service, in the exercise of military duty, or within military installations. Offenses committed during a foreign deployment of the Bundeswehr may also fall under this scope.
Interaction of Military Criminal Law and General Criminal Law
Military criminal law stands as lex specialis in relation to general criminal law. The Military Penal Code contains its own criminal offenses and legal consequences that are tailored to the specific demands of military service and hierarchy. In cases of offenses that violate both the Military Penal Code and the Criminal Code, the more specific provision of military criminal law generally applies.
Key Criminal Offenses under Military Criminal Law
Refusal to Obey Orders (§ 19 WStG)
The refusal to obey orders is a central provision under military criminal law. It describes the intentional refusal to follow a military order, which is punishable by imprisonment of up to three years or a fine; in particularly severe cases, imprisonment for up to five years.
Unauthorized Absence from the Unit (§ 15 ff. WStG)
Anyone who leaves the unit without permission or does not attend service at all is guilty of unauthorized absence. This also includes the terms AWOL and desertion.
Mutiny (§ 27 WStG)
Participation in a mutiny—that is, violent or threatening collective rebellion against military superiors—is a serious military offense with correspondingly severe penalties.
Other Offenses
Other relevant offenses include, for example:
- Unauthorized Absence (§ 16 WStG)
- Violation of Duty (§ 20 WStG)
- Improper Issuing of Orders (§ 30 WStG)
- Mistreatment and Degrading Treatment of Subordinates (§ 31 WStG)
Sentencing and Legal Consequences in Military Criminal Law
Sentencing Framework
The sentencing ranges in the Military Penal Code are fundamentally oriented toward the particular requirements of military service. The threatened custodial and monetary penalties ensure that violations of military obedience and discipline can be effectively sanctioned.
Collateral Consequences
In addition to the possible criminal sanctions, collateral effects such as removal of rank, loss of position, or disciplinary measures under the Soldiers Act may occur.
Special Features of Military Criminal Procedure
Investigative and Prosecution Authorities
Civilian prosecution authorities, especially the public prosecutors and courts of general jurisdiction, are responsible for investigating and prosecuting offenses under military criminal law. Independent military courts no longer exist in the Federal Republic of Germany; this corresponds to the principle of separation of powers and parliamentary oversight.
Procedural Particularities
Certain peculiarities arise in military criminal proceedings, especially regarding the influence of military superiors in reporting and notifying crimes, and in their involvement in clarifying the facts.
Relationship of Military Criminal Law to Disciplinary Law
Disciplinary law is fundamentally different from military criminal law. While military criminal law responds to criminal acts with custodial or monetary penalties, disciplinary law serves to maintain internal order through official sanctions (such as reprimands, arrest, demotion, etc.). Parallel prosecution of misconduct in both criminal and disciplinary proceedings is possible.
Current Developments and Reform Considerations
Military criminal law is subject to ongoing adaptation to social and international legal conditions. There is particular discussion concerning foreign deployments of the Bundeswehr, hybrid threat scenarios, and modern forms of military service. It is constantly reviewed whether existing military criminal law provisions meet current security policy challenges.
Literature and Further Sources
- Military Penal Code (WStG) – Statutory Text
- Soldiers Act (SG)
- Criminal Code (StGB)
- Schomburg, Börner: Military Criminal Law, Commentary on the Military Penal Code
- Braun: Military Criminal Law in the Federal Republic of Germany
Note: This presentation is based on the current legal situation in Germany and takes into account statutory provisions as well as relevant case law.
Frequently Asked Questions
What procedural steps are legally prescribed in military criminal proceedings?
Military criminal proceedings are governed by special procedural rules arising from the Military Penal Code (WStG), the Military Criminal Procedure Code (WStPO), and supplementary from the Code of Criminal Procedure (StPO). Proceedings generally begin with the initiation of an investigation as soon as there is suspicion of a military criminal offense—such as refusal to obey or desertion. Typically, military service courts are responsible, while in serious cases, the competent public prosecutors and regular courts may become involved. Once investigations are completed, the appropriate body decides whether charges will be brought. The accused is granted the right of access to files and is heard. The trial before a military service court or a Bundeswehr disciplinary court begins with the calling of the case and questioning of the defendant. At the end stands the judgment, which can be appealed by means of remedies such as appeal or revision. Specific rules apply throughout the proceedings, such as the involvement of military superiors, consideration of rank, and certain peculiarities regarding sentencing and suspended sentences.
How do offenses under military criminal law differ from those under general criminal law?
Military criminal law contains its own set of offenses that either have no equivalent in civilian criminal law or are not regulated there in the same way. Typical offenses include, among others, refusal to obey orders (§ 19 WStG), desertion (§ 16 WStG), unauthorized absence from the unit (§ 15 WStG), acts of violence against superiors (§ 27 WStG), or disobeying orders (§ 20 WStG). These offenses generally require a special legal relationship between the offender and the unit, particularly the status as a soldier or reservist, and a service-related situation. Committing these acts leads not only to criminal sanctions but can also result in official consequences, such as removal from the Bundeswehr. While general criminal law addresses the public at large, military criminal law exclusively concerns members of the armed forces and reflects the military requirements of discipline and obedience.
Who is criminally responsible as perpetrator or participant under military criminal law?
Under military criminal law, all soldiers of the Bundeswehr—including reservists during training or a period of military service—are generally covered. However, only soldiers who are subject to conscription or have a voluntary commitment at the time of the offense are responsible. Acts of participation such as incitement or aiding and abetting are also possible and are governed by the general rules of the Criminal Code (§§ 26, 27 StGB) in conjunction with the specific provisions of military criminal law. Special rules apply to superiors and subordinates: Superiors may act as perpetrators or participants, for example when ordering a criminal act, while subordinates may bear less culpability if acting on an unlawful order.
What legal remedies are available in military criminal proceedings?
Military criminal proceedings offer numerous ways to challenge court decisions. In principle, appeals may be lodged against judgments of the service courts, and in serious cases—such as the imposition of custodial sentences—revision is also possible. The procedure is essentially governed by the Military Criminal Procedure Code, which partially refers to the rules for regular courts, especially the Code of Criminal Procedure. Appeals are often decided by the Federal Court of Justice, while disciplinary proceedings may fall within the Federal Administrative Court’s jurisdiction. There are also rights to request the reopening of proceedings and, in certain legal violations, to file a constitutional complaint with the Federal Constitutional Court.
Are there special regulations for juvenile soldiers in military criminal law?
For juvenile, that is, not yet of age, soldiers, the Juvenile Court Act (JGG) generally applies in addition. This means that alternative criminal sanctions such as educational measures, disciplinary means, or juvenile detention may be imposed, tailored to the special needs and lesser maturity of juvenile soldiers. Educational measures and the principle of rehabilitation are given priority. Procedural rules are also adapted, for example, by special hearing requirements and the use of juvenile judges. However, certain peculiarities of military criminal law, especially regarding military discipline and obedience, continue to apply even to juvenile soldiers.
How is the state of necessity due to orders handled in military criminal law?
A state of necessity due to orders exists when a soldier commits a criminal offense on the express order of a superior. In such cases, military criminal law recognizes legal justifications or excuses under certain conditions. The relevant provisions are § 17 WStG and the general rules on necessity and refusal to obey orders. As a rule, a soldier is not criminally liable if the order carried out was not obviously unlawful and there was no duty to refuse the order. In cases of obvious illegality, for example, orders to commit crimes against life or physical integrity, the soldier cannot invoke a state of necessity and is personally liable for the executed act, although special mitigating circumstances may be considered.
What international requirements influence German military criminal law?
German military criminal law is influenced by international requirements, especially international humanitarian law and human rights agreements. This includes, for example, the obligation to prosecute war crimes and other serious violations of the law of war. The provisions of the International Criminal Code (VStGB) are taken into account in German military criminal law and, in the case of war-related crimes, may take precedence. The application of individual provisions of the European Convention on Human Rights (ECHR) as well as requirements of NATO or the EU are also relevant for soldiers, so these overriding norms must always be considered in decisions on criminal proceedings and sanctions.
