Responsibility for content, proofreading and translation (original: German) is borne by terre des hommes Germany, Kindernothilfe and World Vision Germany.
Author: Prof. Dr. Michael Krennerich
Editor: Ralf Willinger
Editorial deadline: 26 August 2019
Terre des hommes Germany, Kindernothilfe and World Vision Germany are working together with eight more non-governmental organisations in the German Coalition to Stop the Use of Child Soldiers (Deutsches Bündnis Kindersoldaten).
1. Introduction
The UN Convention on the Rights of the Child and its Optional Protocols apply in Germany in the form of a federal law. In accordance with the case law of the Federal Constitutional Court, they must be taken into account in the interpretation of other federal laws as well as all basic rights and constitutional principles.
This “shadow report” details the implementation of the Optional Protocol for the Convention on the Rights of the Child regarding the involvement of children in armed conflicts from 25 May 2000. Germany ratified the Optional Protocol (hereinafter referred to as the Optional Protocol, OP) on 13 December 2004.
Similar to Art. 38 of the Convention on the Rights of the Child (CRC), the Optional Protocol aims to protect children from involvement in armed conflicts and enlistment in the armed forces. The Optional Protocol defines the minimum age for direct participation in “hostilities” (Art. 1 OP) and conscription into compulsory military service (Art. 2 OP) as 18 years of age.
At the same time, it also requires States Parties to raise the minimum age of 15 years for voluntary recruitment into the armed forces established by the Convention on the Rights of the Child (Art. 38 Para. 3 CRC). Each State Party must define the corresponding increased minimum age and can raise it again at any time. The majority of States Parties have pledged a minimum age of 18 years (see below).
If the States Parties of the Optional Protocol permit the enlistment of volunteers under 18 years of age in their armed forces, they are obligated to take special protective measures. These safeguards must as a minimum include reliable proof of age, permission from the parents or legal guardian, an extensive explanation of the obligations associated with military services, and especially the condition that enlistment be genuinely voluntary (Art. 3 OP).
As the term “as a minimum” in the text of the contract indicates, the safeguards specified do not constitute a conclusive list. The Optional Protocol should also be understood in conjunction with the Convention on the Rights of the Child as putting the best interests of the child at the forefront and demanding comprehensive protection of minors.
2. Recruitment of minor volunteers to the Bundeswehr
By submitting the instrument of ratification, the Federal Republic of Germany declared a binding minimum age for commencement of voluntary service in its armed forces of 17 years of age pursuant to Art. 3 Para. 2 of the Optional Protocol:
“The Federal Republic of Germany declares that it considers a minimum age of 17 years to be binding for the voluntary recruitment of soldiers into its armed forces under the terms of Article 3 paragraph 2 of the Optional Protocol. Persons under the age of 18 years shall be recruited into the armed forces solely for the purpose of commencing military training. The protection of voluntary recruits under the age of 18 years in connection with their decision to join the armed forces is ensured by the need to obtain the consent of their legal guardian and the indispensable requirement that they present an identification card or passport as reliable proof of their age”.
After the compulsory military service has been suspended since 1 July 2011, Germany currently has a volunteer army. 17 year old minors are able to join the voluntary military service programme (Freiwilliger Wehrdienst, FWD) for the duration of seven to 23 months, or they can join the army as a regular soldier, contracted for a period of several years (for 2 – 25 years) (Zeitsoldat). The number of minor “soldiers doing voluntary military service” (Freiwillige Wehrdienstleistende, FWDL) and minor soldiers with a limited service contract (Zeitsoldaten) amounted to 687 people in the second half of 2011. During this period, that corresponded to 4.7% of all new soldiers enlisting. Affected in part by high numbers of graduates from schools, as well as by the comprehensive advertising measures taken by the Bundeswehr, this number increased in the subsequent years: 2012: 1,202 (5.7%), 2013: 1,146 (5.9%), 2014: 1,465 (6.6%), 2015: 1,511 (7.2%), 2016: 1,910 (8.2%), 2017: 2,126 (9.1%). Following the peak in 2017, the number decreased – as the number of graduates from schools declined – in the year 2018 to 1,679 (8.4%) minors but remained high.
Although the Optional Protocol – under the corresponding protective measures specified – does not forbid the recruitment of 17-year-olds, the UN Committee on the Rights of the Child expresses concern in their “Concluding Observations” on Germany in 2014 that youth can commence military training with the armed forces in Germany starting at the age of 17. It repeated its recommendation from 2008 to set the minimum age for voluntary recruitment to the armed forces at 18 years as well in order to better protect the children. Within Germany, this request enjoys strong support from numerous child and human rights organisations. A campaign was recently launched called “Never Under 18! No Minors in the Bundeswehr (Unter 18 nie! Keine Minderjährigen in der Bundeswehr)”, which is supported by various non-governmental organisations. The Children’s Commission (Kinderkommission) of the German Bundestag also took up the request to raise the minimum age to 18 years during the 18th election period. At the family and youth conference of the federal states in May 2019, a motion to set the mandatory legal minimum age for recruitment and enlistment in military service for the Bundeswehr under the National Service Act to the completion of the 18th year of life (and to end the military training of minors and their participation in military exercises until the legal reform goes into effect) lacked a majority by a very small margin.
The Parliamentary Commissioner for the Armed Forces does not impose such a demand, but at least supports the idea that the enlistment of 17-year-olds must remain the exception rather than the rule. Anyone who has not yet reached adulthood must have special protection. As early as during the 18th election period, he stated: “It is difficult to reconcile Germany’s dedication to upholding international law in regards to child and minor protection with the exception of the recruitment of minors that is increasingly becoming the norm. In the latest report, he correspondingly welcomed the decrease in minor volunteers in 2018.
The federal government has explicitly spoken out against raising the minimum age. When questioned, the Bundestag believed that the current recruitment practices of the Bundeswehr were fully compatible with Germany’s obligation to protect human rights, making it seemingly unnecessary to reassess any aspects related to international law. In the government report to the UN Committee on the Rights of the Child, this view was further affirmed. A corresponding proposal in the Bundestag to end the recruitment of minors for the Bundeswehr immediately was rejected during the current 19th legislature period by the votes of the government coalition (as well as two opposition parties).
In doing so, the federal government has taken a position contradictory to the global trend. According to a study by Child Soldiers International (2018), 151 countries have now adopted the 18-year recruitment standard (Straight 18). According to the study, only 46 countries still have minors within the ranks of their armed forces. The 168 State Parties of the Optional Protocol include – alongside countries such as Egypt, Bangladesh, Bolivia, China, India, and Pakistan – some NATO countries, namely Belgium, Germany, France, Great Britain, Canada, the Netherlands, Austria, the USA, and Cyprus. Compared to the European NATO countries, however, only Great Britain surpasses Germany with regard to the absolute number (2017: 2,290) and the relative percentage (19%) of minors among new recruits.
By continuing the recruitment of minor volunteers, the Federal Government is not only weakening the international 18-year recruitment standard (Straight 18), but also undermining its own intensive efforts to draw international attention to the employment of child soldiers in other world regions – as the federal government emphasises in its State Party Report. It is also ignoring legal, political and moral concerns raised against military training of minors in Germany (see below). Due to the unique nature of the profession of soldiers, the argument presented by the Federal Government that the Bundeswehr are attempting to provide equal opportunities in career selection and do not want to put minor school graduates looking to start careers in the military at a disadvantage over their peers by imposing waiting times on them – cannot be accepted.
Call to action: The Federal Republic of Germany should not hamper the international Straight 18 recruitment trend and should increase the minimum age for volunteer recruitment to the Bundeswehr to 18 years of age. This would be an important step towards protecting minors.
3. Obligation to inform prior to acceptance into the armed forces
Included in the safeguards listed in the Optional Protocol is the guarantee that minor volunteers receive comprehensive information on military service before being enlisted in the armed forces and that such recruitment is carried out with the informed consent of their parents (or legal guardians). This establishes requirements to provide comprehensive information to the minor and their parents before enlistment.
The safeguards of the Optional Protocol make it clear that the national armed forces are not an employer just like any other. By enlisting in the military, minors are subordinating themselves to the armed forces’ obligations to follow instructions and obey orders and are accepting the limitations on their basic rights associated with their service duties. Most of all, they are accepting a very high long-term risk to life and limb. Moreover, unlike civil work contracts, the often-long-term service contracts cannot be cancelled regularly after the trial period (see below).
When individual advising is provided, it is therefore essential that comprehensive information be provided that extends beyond training, jobs and career paths to address the obligations and risks involved in a – particularly long-term – commitment to the armed forces. This is built upon the acknowledgement that minors are easily influenced and inspired, and may not yet be able to fully understand the gravity of their decisions. Youth and their parents must therefore be provided with a realistic picture of the military nature of service.
According to the federal government, prior to enlistment comprehensive explanation and counselling concerning the opportunities and risks of a career as a soldier coupled with an intensive, science-based capacity diagnostic assessment process are used to ensure that only 17-year-olds who have given ample thought to the demands of a career as a soldier and show that they have the necessary capacity for such a career are enlisted.
In practice, however, there has been extensive criticism of the career counselling. The Parliamentary Commissioner of the Bundestag himself mentioned in his report from 2018 an internal survey performed by the Ministry of Defence of soldiers who had left the Bundeswehr: Thirty-six percent of the regular soldiers with a limited service contract soldiers (Zeitsoldaten) surveyed and 25 percent of the soldiers doing voluntary military service (FWDL) said they had left because career counselling had given them inaccurate expectations of their future work. Rough treatment of recruits, unreasonably high demands or lack of challenging work as well as a failure to foster existing abilities were also provided as reasons for leaving.
High drop-out numbers are, at the very least, indirectly indicative of deficiencies in career-related information and the Bundeswehr’s selection process. In the year 2017, two percent of the expected applicants have never actually enlisted. Another 18 percent asserted their right to withdraw within the first six months of service. The Bundeswehr parted ways with another two percent within the first six months of service. This phenomenon is also relevant for minors: the Federal Government’s response to a parliamentary small inquiry in the Bundestag for the year 2016 reveals that a total of 1,518 soldiers enlisted as minors from 2011 to 2015 terminated their service during the trial period. In a similar small inquiry from 2018, unfortunately only regular soldiers with a limited service contract (Zeitsoldaten) were queried who were recruited as minors by the Bundeswehr during the period from 2011 to 2017. Of these, a total of 785 people exercised their right to withdraw and left the service. Apparently, soldiers doing voluntary military service (FWDL) were not included in this count. Only with regard to the latter, however, data are available for 2018: While 223 minor volunteer conscripts left the Bundeswehr at their own request, 31 minor volunteer conscripts were dismissed by the army.
Even after the trial period, many minor soldiers or adult soldiers who were recruited as minors terminated their service early (442 between 2011 and 2015, 203 in 2015 alone) or submitted corresponding applications concerning the difficulties in terminating service mentioned below (952 between 2011 and 2015, 316 in 2015 alone). Furthermore, a total of 3,104 soldiers who were minors at the time of their enlistment were terminated by their supervisors between 2013 and 2017. Although there are various reasons for this, the data seem to suggest that as minors, they were not as thoroughly familiarised with the demands and obligations of a career as a soldier as the government claims.
If the terminations and withdrawals of minor enlisted soldiers during and after the trial period are combined, the following total numbers can be calculated for the three years 2013-2015 in which all data are available: 1,069 (2013), 1,203 (2014), and 1,494 (2015). These are extremely high numbers if you consider that a total of 1,152 (2013), 1,463 (2014), and 1,515 (2015) minor soldiers were enlisted each of these years. It is clear that a very high percentage of soldiers who enlist as minors leave the Bundeswehr before the end of their period of service.However, it is not possible to obtain a precise percentage for the number of withdrawals and terminations based on the available data, since the year in which soldiers enlisted is unknown for those who withdrew or terminated their service in a certain year
It is essential to verify the extent to which minors are properly advised and informed by career counsellors or at career assessment centres during the course of their enlistment. There is much evidence indicating that a very euphemistic image is provided of career opportunities and challenges in the armed forces, and the obligations and risks of military service are not sufficiently discussed. Are the enlisted minors and their parents (or legal guardians) actually sufficiently advised that a) it is very difficult to withdraw from military service once the trial period is over, b) service obligations are associated with lasting limitations of rights, and c) that service involves considerable risks to life and limb over an extended period of time? Or, are they becoming aware of the importance of the decision and the consequences for the future only at a later point (while serving their military duty)?
Another question that arises is whether or not enough information is provided about the dangers of deployments abroad in addition to information on the excitement of such missions abroad that might attract a young prospective applicant. Even if only adult soldiers are allowed to take part in such missions, the perspective to do so may play a influential role in the application process. After all, a total of 485 soldiers who were minors at the time of enlistment have participated in armed missions abroad, often multiple times, since mandatory enlistment was abolished (2011). Are the risks of traumatisation, injury and death entailed in military service explained? After all, a total of 110 Bundeswehr members who were sent on foreign deployments have died since 1992, with 37 of these deaths being due to external influences. The Ministry of Defense said that about 22 Bundeswehr members took their own lives during deployments abroad (as of July 2017). According to information provided by the federal government from 12 September 2018, a total of 418 soldiers have also returned from deployment areas due to injuries or wounds since 2010. Even higher is the number of Bundeswehr members treated for post-traumatic stress disorder (PTSD) or who suffer from other deployment-related psychological illnesses such as anxiety, depression, adjustment disorders, and addiction. The psychological trauma centre of the Bundeswehr believes that PTSD is caused by stresses experienced during missions abroad, such as first-hand experience of poverty, civil war, and atrocities. With a presumably high number of unreported cases, the number of officially reported new cases of PTSD following deployments abroad was 235 (2015), 175 (2016), 170 (2017), and 182 (2018) people. In the same period there were about 1,600 to 1,900 PTSD treatment contacts per year.
Taking all of this into consideration, it is advisable to subject the individual (non-public) information and counselling procedure to a critical review – while at the same time assessing this in conjunction with the general public advertising measures taken by the Bundeswehr (see below), which have a strong influence on youths’ decision to volunteer for the Bundeswehr.
Calls to action: Considering the obligation to provide information established in the Optional Protocol, it is essential to ensure that minors are given a realistic idea of what to expect from training and service in the Bundeswehr, including the associated obligations and risks. A critical evaluation must be performed of the information and counselling services of career counsellors, career centres, and assessment centres in regard to minors.
4. Is it possible to leave the Bundeswehr?
One very important protective measure to be taken when minor volunteers are recruited is to ensure that they are actually enlisting voluntarily. The binding English version of the Optional Protocol requires that such recruitment is genuinely voluntary (Art. 3 Para. 3a OP). A purely word-for-word interpretation of the norm might take it to mean that this only concerns the act of recruitment. That would have to mean, however, that minors might have to stay in the armed forces against their will once they have been recruited as volunteers. This goes against the purpose of both the norm and the Optional Protocol. A systematic and teleological interpretation would require not only that enlistment into military service be voluntary but would also demand that the option be provided to leave voluntarily as well.
In Germany, however, the actual voluntary nature of service required by law expires six months after the trial period ends. It is only possible to apply for dismissal or withdraw one’s formal obligation within the trial period of six months of service (cf. Section 58h Soldatengesetz (Soldier Act)). Following the trial period, the service contract can no longer be regularly terminated, but can at best be dissolved by way of a hardship case application (Section 55 Para. 3, Section 75 Para. 2 SA) or can be refused on grounds of conscientious objection in connection with major difficulties. Upon release, the applicant may subsequently be required to pay back large amounts of money for the training already received.
Although no lawsuits have been initiated against minor soldiers due to unauthorised absence (Section 15 WStG) or “desertion” (Section 16 WStG) since the abolishment of mandatory enlistment, absenting by minor soldiers from the Bundeswehr is generally punishable under criminal law. The risk of criminal liability after the trial period was a cause of concern for the UN Committee on the Rights of the Child as early as in 2014. Besides adult soldiers, this could also potentially affect soldiers doing voluntary military service ” (FWDL) as well as regular soldiers with a limited service contract (Zeitsoldaten) who are still minors when their trial period ends. In 2017, this amounted to 173 soldiers and in the previous years as follows: 31 (2011), 110 (2012), 139 (2013), 169 (2014), 212 (2015), and 222 (2016).
In practice, this is also affected by the fact that soldiers sometimes decide themselves to shorten the trial period of six months in order to qualify for additional education, training and study programmes following the three-month basic training. Those who are still in the trial period are sometimes denied access to corresponding training and career options. It is also possible that youth are subject to peer pressure, while also being pressured by supervisors or parents to commit quickly. This sometimes causes them to commit before the trial period comes to an end.
Minors should generally be required to sign the service contract with the Bundeswehr, which their parents or legal guardian previously signed on their behalf, again themselves once they reach adulthood. This would establish an independent declaration of intention from the grown adult.
Call to action: If volunteer minors are recruited, it must be legally possible for them to end their service with the Bundeswehr through a unilateral declaration at any time until they come of age. It must be ensured that violating the obligation to military service under the WStG (Wehrstrafgesetz) is not a punishable offence for minors. After reaching adulthood, the recruits should sign the service contract with the Bundeswehr again themselves.
5. Protection of minors during their period of service
5.1 Military training of minors
If minor volunteers are recruited, they must be properly protected. While serving voluntarily in the armed forces (from seven to 23 months), even minor volunteer conscripts (FWDL) receive full military basic training and are already serving in a military unit starting in the fourth month (army, air force, marine, medical service, armed forces joint support service). If they commit to a longer period of service as regular soldiers (Zeitsoldaten), they establish a career in the military. (Beyond that, the Bundeswehr also offers purely civil training for the field of Bundeswehr administration. These programmes are only examined in the shadow report to the extent that they function as an alternative to military training). Military training and the soldier’s profession, however, are associated with special demands that could violate minors’ right to protection.
Indeed, minors in the Bundeswehr are not allowed to serve with weapons neither abroad nor domestically, not even as sentries. Volunteer minors do, however, receive the same basic military training with the Bundeswehr as adult recruits. This means they are trained with weapons, namely with live munitions, they learn how to battle and to kill, and they participate in military drills. Even if training with weapons is performed under close supervision, the use of weapons with live munitions always poses hazards. Individuals may become careless in their handling of the weapons and this could lead to improper execution of shooting exercises. In June 2017, media reports also revealed glaring violations of safety guidelines and degrading treatment of recruits during shooting exercises at the Bundeswehr base in Sondershausen. Furthermore, in 2017, an individual case was revealed in which a 17-year-old soldier was assigned sentry duty with a weapon.
Even the SPD parliamentary group in the Bundestag, which supports the government coalition of CDU/CSU and SPD, has spoken out in favour of amending training so that minors receive purely civil training until they reach adulthood, without training with weapons and without any kind of military training content. In its position paper “Protection Provisions for Minors in the Bundeswehr” from June 2017, the parliamentary group calls for a civil employment relationship with civil administration of the Bundeswehr to be created for minor applicants until they reach adulthood and that a training concept be developed for this – so that minors are not employed through a military service relationship. The 2018 coalition agreement of the current federal government established an agreement to evaluate and adjust Bundeswehr training programmes. Here it is important to research the situation and experiences of minor recruits in particular and assess this information separately while considering the special protection minors require.
This is also important, as according to the Federal Ministry of Defence, serving in the armed forces demands special physical and psychological strength. Accordingly, basic training already functions as a kind of drill in and of itself, especially when special basic training programmes are involved. It can also be deducted from this that training is – at least in part – associated with great physical and psychological demands and stresses, particularly when it comes to minor soldiers. It therefore requires a certain degree of mental maturity and a specific physical constitution, even though limits have now been set for enlistment. Here it is important to emphasise that minors who are trained with weapons learn strategies for action that involve violent force ranging all the way through to the killing of another person are much more vulnerable to physical injuries and traumatisation.
The fact that young recruits do not always have the physical capacity to meet demands (despite enlistment tests) is evident, among other things, in the need for the Bundeswehr to enact a new concept of “activating physical training”; this was introduced in 2017 in reaction to cases where recruits were unable to meet demands. Following marching exercises performed in high temperatures during basic training in Munster, an officer cadet died in July 2017, while three others were taken to an intensive care unit, one of whom was seriously injured, and seven additional soldiers experienced health problems. Several soldiers collapsed in January 2018 during a run around the campus of the training centre in Pfullendorf. Although the Bundeswehr has not released the ages of the people affected by these incidents, it still reveals that minor soldiers in particular run the risk of being overworked, especially when trainers – as apparently occurred in Munster and Pfullendorf – neglect their leadership duties.
In specific cases, the military training, especially training with weapons, may violate the protective aim of Art. 32 of the CRC, which states that children (as defined by the CRC: minors) cannot, among other things, be put to work undertaking tasks that are hazardous or that could pose a risk to their health or development. Furthermore, it has now been internationally stated that the handling of dangerous equipment and materials as well as the physically and psychologically stressful training and working conditions present in the military might constitute “hazardous work” for minors as defined by ILO Convention 182 and the corresponding Recommendation 190. The latter recommends that children 16 years of age or older be allowed to work only when the health, safety and morality of the children involved are fully protected.
This is further complicated by the fact that the German Youth Worker Protection Act (Jugendarbeitsschutzgesetz) does not apply to minor soldiers. According to the Federal Ministry of Defence, numerous of its legal requirements are met by existing measures. Reference is also made to the applicable conditions of the general Law on Safety and Health at Work (Arbeitsschutzgesetz) and corresponding information provided to all soldiers. Youth worker protection does not apply, however, as it does in civil training and professional settings. Even the manual provided to supervisors on how to handle minors in the Bundeswehr, which is currently being updated and is expected to be released later on in 2019 as a central service regulation , indicates without any further explanation that the Youth Protection Act does not apply and that, for example, there are no limitations on overnight or bivouac training. Even though provisions are made to require that minors receive separate rooms, the Federal Government has stated that this is neither a mandatory requirement nor is it always possible to execute. Data are not collected on this matter. Furthermore, this apparently does not apply to accommodations for military exercises. It is just as difficult to determine the extent to which the advisors for minors are qualified for this task.
Call to action: Minors should not perform military duties and should not receive any kind of military training. Instead, they should be engaged in a civil employment relationship and benefit exclusively from civil training. During training and while serving, they should not be put to undertake tasks that are hazardous or that pose a risk to their health or development. In the evaluation of Bundeswehr training agreed upon in the coalition agreement, the training of minor soldiers should be researched separately and should also take violations of children’s rights into consideration.
5.2 Protection of basic rights
Beyond occupational protection, a review must be carried out of the extent to which rights and guarantees of protection for minors – which Germany pledged to uphold by ratifying the Convention on the Rights of the Child – can be restricted. Soldiers generally have the same basic rights as any citizen, but these are “limited during military service by the soldier’s legal obligations” (Section 6 SA).
Soldiers are subject to a strict obligation to maintain secrecy, for example. According to the Soldier Act, a soldier must maintain the secrecy of matters made known to them through their service, even after they have left the armed forces (Section 14 Para. 1 SA). Without approval from – the current or last – disciplinary supervisor, he/she can divulge information or give statements or explanations about such matters neither before a court nor outside of court (Section 14 Para. 2 SA). This constitutes a major restriction on freedom of speech that must withstand an assessment of proportionality. Anecdotal evidence seems to indicate that, in individual cases, the required obligation to maintainsecrecy can be excessive. There are not, however, any empirical studies on the matter.
Furthermore, any soldier must not, for example, engage in political activities while being on duty. The right to express one’s own opinion in discussions with comrades, however, remains unaffected by this. On military bases, however, limits are also set for free time in the “basic rules for camaraderie” and mutual consideration in order to prevent serious disruptions to camaraderie during service. Specifically, a soldier cannot “act as an advocate for a political group by holding speeches, distributing literature, or working as a representative of a political organisation” (cf. Section 15 Para. 1 and 2 SA). The legal limitations are indeed in keeping with Art. 13 Para. 2 of the CRC. It is worth examining whether or not limitations on freedom of speech or even the freedom to assemble are far too strict. The latest report from the Parliamentary Commissioner does not address this.
The Parliamentary Commissioner does, however, mention – 63 (2016), 167 (2017), and 150 (2018) – reported cases in the category “suspected of endangering the democratic constitutional state, inappropriate political activities and incitement of the people”. This mainly involves propaganda offences such as xenophobic and anti-Semitic statements, listening to right-wing extremist music, swastika graffiti, demonstrating the forbidden Nazi salute, calling out “Sieg-Heil”, and using stored images, texts and music with extremist content. If these incidents are not consistently reported, punished and prevented in accordance with the basic principle of “leadership development and civic education” (Innere Führung), they bring with them the risk of seriously suppressing minor soldiers’ opinions – thus impairing personality development in the spirit of the ideals expressed in the Charter of the United Nations and the Convention on the Rights of the Child. In general, there is also the question as to whether the right to develop in keeping with the ideals of peace, tolerance and friendship between peoples can always be maintained within the context of a military education.
Call to action: Minors in the Bundeswehr must be effectively protected against unreasonable restrictions on their basic rights and against propaganda offences perpetrated by comrades and supervisors.
5.3 Protection against degrading initiation ceremonies and sexual abuse
It is particularly important – as defined under Art. 34 CRC – to protect minors against mistreatment and abuse. There is an especially great need to protect female minors.. Since suspension of mandatory enlistment as of 1 July 2011, their numbers were on rise up to 2017: 2011 (half year): 57, 2012: 152, 2013: 153, 2014: 193, 2015: 247, 2016: 356, 2017: 448, 2018: 313.
The Ministry of Defence emphasises that supervisors must pay special attention to minor soldiers during training. The need to protect minor soldiers from sexual discrimination and assault is effectively implemented by these service supervisors. Within the internal reporting system of the Bundeswehr (Meldewesen Innere und Soziale Lage), the reporting of revealed cases of suspected degrading initiation ceremonies or forceful assaults is mandatory. d. It was not until 2018, however, that specific data were collected on whether the affected soldiers were minors. No suspicious cases were reported during the period from 1 January to 8 August 2018. In 2017, however, at least one minor recruit was at the centre of a scandal involving sexual abuse and degrading initiation ceremonies at the Staufer Barracks in Pfullendorf (Baden-Württemberg).
Evidence of other violations beyond Pfullendorf and indications that the reporting system within the Bundeswehr as a whole has deficits can be found not only in a report by the General Inspector Volker Wieker to the members of the Defence Committee of the German Bundestag (2017), but also in numerous media reports. This includes sexual assaults occurring in the mountain infantry in Bad Reichenhall, at the Todendorf Barracks, and at the Hain Barracks near Gera, to name a few. The annual reports of the Parliamentary Commissioner also point toward problems in implementing the principles of leadership development and civic education and warn that supervisors should not downplay such misconduct or brush it off as insignificant isolated case.
The number of events and special incidents subject to mandatory reporting due to suspicion of criminal offences against sexual autonomy has increased significantly: 86 (2015), 131 (2016), 235 (2017), 288 (2018). This also includes sexual assault and harassment of soldiers within the Bundeswehr, ranging from verbal sexual harassment to sexual harassment in the form of touching through to attempted or successful assault and rape. The actual number of sexually motivated assaults may be considerably higher, since it is probable that many cases – out of shame or fear of professional or personal retaliation – are not reported. According to the study “Troops With Women Out of the Picture?” (“Truppenbild ohne Dame?”) released by the Bundeswehr’s Centre for Military History and Social Sciences in 2014, 55 percent of women and 12 percent of men have experienced some form of sexual harassment in the Bundeswehr. The majority of cases involved verbal sexual harassment or unwanted touching. Three percent of women, however, also reported having been the victim of sexual assault or rape at least once in the Bundeswehr, and such cases also occurred among men.
Call to action: As minor soldiers in armies are not (and cannot be) effectively protected from degrading rituals and sexual abuse – even in the Bundeswehr – minors should not be recruited as soldiers.
6. Information measures and advertising campaigns of the Bundeswehr
Advertising the military to minors runs counter to the spirit of the Optional Protocol and the Convention on the Rights of the Child. Accordingly, the UN Committee on the Rights of the Child recommends that Germany “prohibits all forms of advertising campaigns for the German armed forces that target children.” This recommendation echoes the demands of numerous child and human rights organisations in Germany as well as the Education and Science Worker’s Union (GEW), among others. The Children’s Commission (Kinderkommission) of the German Bundestag also spoke out against such ad campaigns during the 18th voting period.
The State Party Report from the federal government to the UN Committee on the Rights of the Child stated: “Given the minimum age of 17 for joining the Bundeswehr, the main target group for recruitment activities is defined as persons aged between 17 and 30 as a matter of principle. Youth marketing activities do not pursue any personal advertising objectives according to the definition of recruiting to the Bundeswehr. In fact, they aim to provide interested young people with general first information about the Bundeswehr and to reduce fear of contact. No special advertising campaigns aimed at children are carried out for the German armed forces.”
In practice, these statements do not hold true:
For one thing, the variety of personnel recruitment measures implemented by the Bundeswehr also addresses minors under the age of 17. It can therefore be assumed (and is desirable) that youth under 17 will also visit the many training and career fairs in which the Bundeswehr participates. In the fourth quarter of the year 2018 alone, the Bundeswehr attended 194 fairs and exhibitions. They presumably also take smaller personnel recruitment measures (small booths, info mobile, etc.) outside of military bases and events at career information centres. The Bundeswehr also participates in the so-called “Girls’ Day” (girls-day.de) and “Boys’ Day” (boys-day.de) in order to inform youth of career opportunities with the Bundeswehr. The offerings are explicitly geared toward minors 15 years of age and up. Furthermore, the Bundeswehr also clearly organises “individual and group troop visits (outside of school) for the personnel recruitment target group (including young pupils) in various regions across the nation” that pupils participate in. The events held by career counsellors at schools are also geared toward minors in particular, and indeed many of them are under 17 years of age (see below).
Two- to three-week pupil internships with the Bundeswehr are even expressly geared towards students aged 14 and over. According to their website, these are intended to “gain an insight into the career possibilities and individual development opportunities in the Bundeswehr.” The student internships are mainly offered in training workshops as well as in service centers of the Bundeswehr.
Furthermore, the differentiation between information and advertising is rather blurred in practice. In setting itself apart by addressing youth and giving them a positive image of the Bundeswehr, many of its offline and online youth marketing offerings ultimately constitute open and offensive advertising for the Bundeswehr going far beyond pure image maintenance and informational purposes.
The child-friendly designs of Bundeswehr websites make this clear. A discourse linguistic analysis performed by Vogel (2014) concluded that the Internet presence of the Bundeswehr aims to channel the stereotypes, emotions and needs of young people into an idealised image in conjunction with the message: “Join the Bundeswehr!”. Such images are also produced on the current website bundeswehrentdecken.de and the Bundeswehr is actively promoted. Here, for example, the youth magazine “BE Strong. The Info Magazine of the Bundeswehr” (“BE Strong. Die Infopost der Bundeswehr”) published by the press and information branch of the Federal Ministry of Defence can be ordered free of charge. This youth magazine contains multiple references to career opportunities with the Bundeswehr and is clearly intended to enthuse young people about the Bundeswehr as an employer.
Also geared specifically toward young people is the YouTube series produced by the Bundeswehr. In his report from 2017, the Parliamentary Commissioner gives the YouTube series “The Recruits” (“Die Rekruten”), in which cameras follow 12 new recruits during their basic training, a positive assessment. It supposedly provides potential applicants with a first look at the Bundeswehr. Strenuous physical activity, deprivations, the handling of weapons, and even the experience of camaraderie can be conveyed better and more vividly here than would be possible in glossy brochures. The question remains, do such four- to 13-minute videos really capture the reality or rather do they trivialise and embellish to a great extent, thus functioning – even if indirectly – as advertising for the Bundeswehr.
Accusations of true “militainment” (military and entertainment) for the purposes of recruiting youth seem justified in the case of the web series “KSKS – Never Fight Alone” (“KSK – Kämpfe nie für dich allein)” produced by the Bundeswehr and published in November and December 2018 on social media (YouTube, Instagram, Facebook). The 22 episodes (usually five to ten minutes in length) chronicle a jungle combat course being completed by KSK soldiers in Belize, who are accompanied by a civil “adventurer” as the main protagonist, appearing in typical influencer format. Depending on the episode, the videos were viewed between about 95,000 and 600,000 times on YouTube, certainly with declining numbers over time. The Federal Ministry of Defence views the videos more as image films targeted toward potential trainees for the KSK and their supporting forces. Content, aesthetics and format are all geared specifically toward youth. The series was promoted accordingly in the youth magazine of the Bundeswehr: “Get excited for jungle action guaranteed to give you goosebumps and become part of the adventure every day at 5pm on YouTube, Facebook, and Instagram,” as it was advertised in the youth magazine “BE Strong” (3/2018, p. 5) – at the same time with references to extensive supplementary information on Whatsapp, in the Facebook ChatBot at “Bundeswehr Exclusive”, on Snapchat under “Bundeswehr Jobs”, and in a daily podcast on Spotify. There was also a corresponding quiz for interested persons aged between 16 and 20.
A trailer for a new series titled “SURVIVAL – 7 Officers. One Mission!” (“SURVIVAL – 7 Offiziere. Eine Mission!)” now appears on the official YouTube channel of the Bundeswehr “Bundeswehr Exclusive”. The new series was announced in April 2019 as follows: “One of the hardest lessons of the Bundeswehr awaits you: the lesson of the lone warrior. From leading a group left to their own devices under extreme conditions to survival skills in the wilderness through to sleep deprivation and food shortages, our participants face some great challenges – and YOU can be there for it all!”
Such media and other public relations work of the Bundeswehr specifically target youth (under 17 years of age as well) and surely do not just serve informational purposes, but also directly or indirectly serve to recruit youth. Again, it must be emphasised that the Bundeswehr is not just your ordinary run-of-the-mill employer. Correspondingly, the armed forces must avoid using sugar-coated, trivialised, aesthetic or glorified youth marketing techniques to enthuse minors for military service and the profession of soldier, which is associated with substantial risks that are hard for youth to foresee. Youth are particularly trusting, adventurous, willing to take risks, open to group experiences, and highly engaged with new technology, which tends to make it easier to get them excited about the profession of soldier than adults or even mothers or fathers with families. This means the Bundeswehr has a correspondingly greater responsibility not to suggest in their information and marketing campaigns targeted toward youth that military service is nothing but fun, camaraderie, adventure, and heroism. The risks of traumatisation, injury, and death involved in military deployments cannot be playfully trivialised or hidden.
In keeping with this, it is important not to encourage associations with action films and video games. During the Cologne digital games fair “Gamescom” in 2018, for example, the Bundeswehr’s advertisement poster was justifiably criticised. With armed fighters made to look like figures from a computer game and with slogans such as “multiplayer at its best” and “there’s no better open world”, even conservative media believed the Bundeswehr was specifically trying to recruit youth. The Bundeswehr explains this by saying the posters were intended to get people to think about what really counts: war games or ensuring peace (#Gamescom2018#GC18#Bundeswehr). These and many other campaigns are ultimately part of greater campaigns to recruit youth, who the Bundeswehr has been addressing since 2015 with the slogan: “Do Something That Really Matters.” Despite the recommendation of the UN Committee on the Rights of the Child to the contrary in 2014, such measures have increased considerably.
Call to action: The federal government should discontinue all advertising and marketing measures for military service targeted at minors – especially trivialising, sugar-coating, aestheticising, and glorifying measures.
7. Cooperation of Bundeswehr with schools
In Germany, the Bundeswehr’s cooperation with schools is a controversial socio-political topic. Put simply, three different positions have been identified: the first position does not see the advertising or information measures of the Bundeswehr at schools as problematic. The second position rejects all advertising measures, but not information measures of the Bundeswehr at schools. The third position is against the presence of the Bundeswehr at schools altogether.
Once again, however, it must be highlighted that it is very difficult to differentiate between advertising and information measures. This is clear in the activities of career counsellors at schools. Information provided by them about training and career opportunities with the Bundeswehr at least implicitly go hand in hand with advertising for service in the Bundeswehr. This is especially true when the school administration does not at the same time present information on the variety of professional careers outside of the Bundeswehr in order to ensure that neutral and balanced information is conveyed. This requirement can be seen as early as 2010 in the report “School and the Bundeswehr” issued by the Scientific Service of the German Parliament.
In the fourth quarter of 2018 alone, there were 165 presentations or events held by the career counsellors of the Bundeswehr within and outside of class at schools or sometimes outside of schools. Measures mostly engaged pupils from middle and high schools. Most of the pupils in this instance were minors, with many of them being under 17 years of age.
Although the Bundeswehr does have to compete with other civil employers for new recruits, it should again be emphasised that military service and a career as a soldier are associated with great dangers and more pervasive obligations than civil careers. It was with good reason that the UN Committee on the Rights of the Child called upon the federal government in 2014 not to conduct advertising campaigns for the German armed forces that target children. This demand also applies to minors at schools. Any career counselling that takes on a promotional nature must be discontinued.
This opinion endures – despite the latest controversy surrounding the regional party convention resolution of the Berlin SPD from April 2019. The resolution called for the following clause to be added to the school act for the state of Berlin: “Military organisations will be banned from advertising for service or work in the military field at Berlin schools.” Even after the subsequent declaration that this does not constitute the banning of information, but rather advertising for the Bundeswehr at schools, and only affects Bundeswehr career counsellors (and not so-called Bundeswehr youth officers, see below), criticism of the resolution from well-known politicians, even from the ranks of the SPD, has not abated. The Federal Ministry of Defence also defended the visits of soldiers, Bundeswehr career counsellors as well as Bundeswehr youth officers, to schools. These were purported to be associated with the constitutionally mandated role of the Bundeswehr as a parliamentary army. In order to better protect minors as required by the Convention on the Rights of the Child and the Optional Protocol, however, career advising by the Bundeswehr at schools must be discontinued, as it is at least implicitly of a promotional nature.
Call to action: The federal government should also and especially discontinue military recruitment by the Bundeswehr at schools, as the audience there would primarily be composed of minors.
Unlike Bundeswehr career counsellors, so-called “Bundeswehr youth officers” (Jugendoffiziere) are not allowed to directly promote a career in the Bundeswehr. Rather, these soldiers are usually supposed to participate in school events about peace and security policy and merely provide information about the associated duties of the Bundeswehr. According to the Parliamentary Commissioner, they make a valuable contribution to the public image of the Bundeswehr and the political training of young people.
One to four Bundeswehr youth officers are stationed at each of the 61 locations nationwide (whereby in 2018 only 69 of the planned 94 full-time Bundeswehr youth officer positions were filled). Based on the Bundeswehr’s own accounts, the Bundeswehr youth officers held a total of 5,743 events in 2017, which were attended by 157,205 people, with 122,483 of these attendees being young pupils (and university-age students) and 34,722 multipliers (incl. teaching staff and trainee teachers). These events mostly involved presentations, seminars, and information events, as well as troop visits and participation in major events and podium discussions. The number of events and participants here has remained stable for the most part since 2013 (2013: 5,484 events/ 152,235 participants; 2014: 5,520/ 161,515; 2015: 5,569/ 149,966; 2016: 5,468/ 146,509).
Between 2008 and 2011, the ministries of education and cultural affairs of the federal states even concluded cooperation agreements with the Bundeswehr that made it easier for Bundeswehr youth officers to gain access to schools and to train and provide supplementary education to teachers and trainee teachers. This was initiated by North Rhine-Westphalia. It was followed by (in alphabetical order): Baden-Wuerttemberg, Bavaria, Hesse, Mecklenburg-West Pomerania, Rhineland Palatinate, Saxony, and Saarland. The wording of the agreements varied, but the fixed goals were similar. Additional information provided by Bundeswehr youth officers should enable young pupils (of secondary levels I and II as well as vocational schools) to independently engage with the issues of peace and security policy in more depth, relating generally to Germany’s role.
Safeguards are clearly incorporated into several cooperation agreements – with the exception of the one in Rhineland Palatinate. They stipulate, for example, that schools or teachers can decide independently and voluntarily if they wish to take advantage of the offerings provided by the Bundeswehr youth officers. Bundeswehr youth officers are in some cases explicitly forbidden from promoting service or work in the Bundeswehr. In some instances, Bundeswehr youth officers are, for example, explicitly bound by the principles of the “Beutelsbach Consensus”, particularly in relation to ban on indoctrination and treating controversial subjects as controversial. Some agreements required teachers to be present at events and emphasise their responsibility for the class. In Saarland and Hesse, the schools and teaching staff are required to ensure that information is factual and that multiple viewpoints are presented. In North Rhine-Westphalia, the agreement explicitly states that various institutions and organisations should be equally incorporated. The agreements in Hesse and Saarland refer to the option of engaging in dialogue with peace organisations.
While Bundeswehr youth officers are still invited to schools in federal states where no cooperation agreements exist, such agreements have strengthened the cooperation between Bundeswehr youth officers and schools and expanded offerings. Although Bundeswehr youth officers visiting schools was defended during the Berlin debates concerning a ban on advertising in schools, it remains controversial. The influence of the Bundeswehr on the content of courses and the training and continuing education of teaching staff and trainee teachers has at times been heavily criticised, by the Education and Science Workers’ Union (GEW), for example, as well as by national and local associations and parent initiatives. They demand the termination of the cooperation agreements with the Bundeswehr and “School without the Bundeswehr” (“Schule ohne Bundeswehr)”.
According to critics, the Bundeswehr has no education mandate at schools. If, however, they are involved in information and education work – even with the aforementioned safeguards in place – the risk still exists that the Bundeswehr will convey a biased viewpoint. In reality, peace organisations and organisations critical of the military are almost never invited and also do not have the financial or personnel resources to facilitate a comparable alternative offering at schools. This means that Bundeswehr youth officers who have been rhetorically trained dominate the field without allowing the expression of critical opinions from the peace movement or children’s and human rights organisations. Whether or not opposing opinions are presented and a balanced controversy is (or can be) introduced is largely up to the teachers themselves.
No less controversial are the troop visits made by school classes in the form of official school excursions. On “Hesse Day 2018”, for example, the GEW strongly urged school administrations to refrain from organising school group visits to the Bundeswehr. This was deemed objectionable based on experiences from “Hesse Day 2017”, during which military equipment was displayed and hand-to-hand combat techniques were demonstrated, accompanied by rousing rock music (“I kill ‘cause I’m hungry”, “Only the strongest will survive”). If troop visits were to occur, participation should be voluntary.
Call to action: Lessons on political security and peace topics should generally be given by trained teachers and not by youth officers from the Bundeswehr. During these lessons, educating youth for peace as defined under Art. 29 of the CRC should remain at the forefront. If Bundeswehr youth officers are invited, attendance of the lesson provided must be voluntary and should ensure the necessary political balance, e.g. in the form of podium discussions with various experts.
8. Human rights and peace education in schools
It is generally important to keep in mind the necessity of raising children for peace and teaching them about human rights at schools. The education of the child, as recorded in the UN Convention on the Rights of the Child, shall be directed, among other things, to to the development of respect for human rights and fundamental freedoms, and the principles enshrined in the Charter of the United Nations” (Art. 29 Para. 1 b CRC) while also preparing the child to live responsibly in a free society with a spirit of understanding, peace, tolerance, equality of the sexes and friendship among all people and ethnic, national, and religious groups as well as indigenous peoples (Art. 29 Para. 1 d CRC). Similarly to the International Covenant on Economic, Social and Cultural Rights (in Art. 13 Para. 1), the Convention on the Rights of the Child lists raising children for peace and educating them about human rights as important content to be incorporated into the human right to education. The Permanent Conference of the Ministers of Education and Culture of the German Federal States (ständige Konferenz der Kultusminister der Länder in der Bundesrepublik Deutschland) explicitly acknowledged the Convention on the Rights of the Child and updated its recommendations for human rights education at schools for 2018. Here, human rights are seen as the foundation for every human society as well as being fundamental to maintaining peace and a just world , but the goal of raising children for peace remains unmentioned in the recommendation.
Peace education is also not specifically mentioned in the government report to the Committee on the Rights of the Child. According to the report, human rights education is a core aspect of the mandate to educate and raise youth and is established as a top educational goal in all state constitutions and school laws. It should be involved in all areas of school activity and aim to instil in youth esteem, tolerance, and respect for other cultures as well as a fundamental responsibility towards society. Contrary to this, the findings of the German Institute for Human Rights (DIMR) indicate that just three school laws explicitly mention human rights in the general educational goals. The DIMR therefore recommends the states of the Federal Republic of Germany responsible for education to establish education about human rights explicitly as an educational objective in their school laws . The goal of peace education, however, is more or less explicitly incorporated into the states’ school laws.
There is still a need for empirical data on the extent to which this is implemented. The same applies to implementation of the – also supported by the KMK – recommendation to establish human rights education as an interdisciplinary topic pervading all school life and as the subject of a teaching method that connects and encompasses multiple disciplines. Identifying indicators that this is truly taking place on a regular basis has proven difficult. Aside from the several good practice examples, peace and human rights education at German schools is approached more implicitly rather than explicitly. Evidence of existing deficits can be found particularly in the variety of reform proposals for establishing stronger and more comprehensive peace and human rights education at schools – or even for an education built upon children’s rights.
Call to action: Human rights and peace education must be implemented at German schools as an explicitly interdisciplinary mandate and strengthened. Schools and the education provided there should show a consistent orientation toward the human rights of children as well as peace and tolerance.
9. Former child soldiers as refugees
In 2014, the UN Committee on the Rights of the Child welcomed the withdrawal of the German declaration of reservation concerning Art. 22 CRC and acknowledged Germany’s efforts to host a large number of “refugee children” from numerous countries. They remained, however, especially concerned that children who had been recruited as soldiers or were fleeing forced recruitment were not appropriately identified during the asylum process or were rejected.
9.1 Recognising forced recruitment of minors as child-specific persecution
According to the UN Refugee Agency (UNHCR), forced recruitment of a minor and recruitment of a minor for a country’s armed forces for direct participation in combat activities constitutes a child-specific form of persecution as defined under Art. 1 (A) 2 and 1 (F) of the Geneva Convention relating to the Status of Refugees. The same applies to the recruitment of minors into a non-governmental armed group. Factors indicating persecution illegible for refugee status include – in addition to other characteristics where applicable – membership in a social group of children who are specifically recruited or deployed by armed forces or armed groups. Under the qualification directive of the EU, which requires member states to consider child-specific forms of persecution when reviewing the applications of minors, actions against children can also be considered persecution.
Accordingly, courts in Germany have also recognised the forced recruitment of minors as child-specific persecution in some cases. Here too, reference was made – in accordance with the GFK and its legal opinion through the UNHCR – to the aspect of being a child (as defined under Section 3a Para. 2 No. 6 AsylG) and therefore membership in a certain social group (as defined under Section 3 Para. 1 No. 1 AsylG) . Verdicts have also been passed, however, that do not recognise the forced recruitment of minors as persecution in a warlike confrontation where the country – or the respective ruling groups – are forced to rely on large numbers of soldiers, and children are not seen as a social group (as defined under Section 3b Para. 1 No. 4 AsylG). The Federal Office for Migration and Refugees (BAMF) has apparently also repeatedly rejected asylum seekers with the justification that there is no individual risk of persecution, even when there is a nationwide risk of recruitment.
Taking this into account, political requests for a stronger recognition of child-specific persecution by the BAMF or Administrative Courts in decisions to grant protective status should be supported. What makes this even more important is the fact that none of the usual domestic fleeing alternatives (as defined under Section 3 AsylG) are available to minors. They cannot usually be expected to go to other parts of the country without family aid to seek out protection against forced recruitment by armed forces or non-governmental armed groups. Returning to their home country is also often associated with dangers that would justify a non-refoulement. Fleeing former child soldiers face double threats: on the one hand from the armies and armed groups they have fled from, since these often punish desertion with death or brutal mistreatment; and on the other hand from the opposing party in the conflict and parts of the population who continue to view them as enemy fighters. Most child soldiers are also traumatised and may be able to assert post-traumatic stress disorders as barriers to deportation.
No data are available on how many former child soldiers have applied for asylum or received protective status in Germany as accompanied or unaccompanied minors. The same applies for the presumably higher number of minors who have fled the threat of forced recruitment by armed forces or non-governmental armed groups. For its annual “Report on the Situation of Unaccompanied Minors in Germany”, however, the federal government performs an online survey of establishments in which unaccompanied minors live. The survey indicated that war and civil war were the most common reasons provided for fleeing. Fear of forced recruitment is given as a reason quite frequently by male minors. This also corresponds to the data on countries of origin of the 35,939 (2016) and 9,084 (2017) unaccompanied minors who submitted applications for asylum in 2016 and 2017. They come mainly from Afghanistan, Syria, Eritrea, Somalia, and Iraq. It becomes even more problematic when the asylum process concerned ultimately does not (or will not) provide secure protective status.
Call to action: The actual or threatened forced recruitment of a minor and a minor’s actual or threatened involvement in combat activities must be consistently considered a child-specific form of persecution in decisions granting protective status.
9.2 Identification and treatment of escaped child soldiers
The Federal Government has addressed the concern that fleeing child soldiers are not properly identified in asylum processes by highlighting the special commissioners at the Federal Office for Migration and Refugees (BAMF) who are specially trained in working with unaccompanied minor refugees. Their duties include identifying “refugee children” with a special need for protection within the context of the asylum process, particularly during questioning of children on the facts of their flight. Additional special commissioners for traumatised persons, victims of torture and those fleeing gender-specific persecution are presumably employed to assist these minors who have been traumatised, were victims of torture, or have experienced gender-specific persecution. All special commissioners purportedly undergo continuous comprehensive legal, cultural and psychological training in the form of basic and advanced training courses.
Annex 1 (Section 9a) of the State Party Report contains an example of how child soldiers are identified in practice in Berlin. According to this document, specialised experts in organisations for the care of children record detailed case histories for the unaccompanied minor refugees (during a clearing phase that generally lasts three months) before sending the minor on to the youth welfare facilities that can best meet their needs. This should facilitate the identification of children who were or are still threatened with forced recruitment. Suitable educational, social-pedagogical, and psychological support could presumably be provided at ththese facilities.
The described measures do show that it should be possible to identify former child soldiers. It does not, however, guarantee that this will happen. This also explains why there is still a lack of information as to how many people in Germany are currently seeking or have received protection as former child soldiers. Further complicating the matter is the fact that there can sometimes be quite a long delay before unaccompanied minor refugees submit an application for asylum. Contributing to this is also the fact that identifying oneself as a former child soldier during the asylum process may also entail making self-incriminating statements about oneself. If the child was recruited by non-governmental units, criminal persecution could follow as a consequence (member of a terrorist organisation, etc.).
Call to action: It must be generally ensured that former child soldiers, who came as refugees to Germany, are identified and that they receive appropriate (psychological and other) support.
9.3 Child soldiers as victims and perpetrators
Recruiting and deploying children under 15 years of age is considered a war crime as defined under Art. 8 of the Rome Statute of the International Criminal Court (ICC). War criminals who are not punished in their respective countries can and should be held responsible under international criminal law. This is also required by the Optional Protocol (Art. 4.2) and the “Principles and guidelines on children associated with armed forces or armed groups” (Paris Principles) passed at a conference organised by France and UNICEF with the title “Free Children from War”. By signing the agreement, the participating countries, Germany among them, pledged to disarm child soldiers under 18 and reintegrate them into civil life among other things. Perpetrators who recruited and deployed children were to be punished. –The first lawsuit of the ICC involved the recruitment and use of child soldiers for the militia of defendant Thomas Lubanga Dyilo in the DR Congo and he was ultimately sentenced to 14 years in jail.
The German Code of Crimes Against International Law (VStGB) established in 2002 also allows for the criminal punishment of war crimes in Germany, even if the crime was perpetrated abroad and is not related to Germany. At the same time, the VStGB also defines the recruitment of children under the age of 15 for armed forces, integrating children into the armed forces or armed groups, or using children as active participants in hostilities as a war crime (Section 8 Para. 5 VStGB). As defined here, it is to be expected that, provided they are captured in the country, the people who have perpetrated such war crimes should be held accountable for their crimes by German law enforcement authorities. In the first trial following the Code of Crimes Against International Law in 2015, Ignace Murwanashyaka, the president of the Rwandan Hutu militia FDLR, was sentenced to 13 years in prison for his involvement in war crimes and co-defendant Straton Musoni was sentenced to eight years. Murwanashyaka was also charged with using child soldiers, but it wasn’t possible to clarify the charges and they were dropped.
In its “Concluding Observations” of 2014, the UN Committee on the Rights of the Child also stated that extraterritorial legal jurisdiction could also be expanded for the recruitment of children 15 years of age or older but regretted that both sides would have to be punishable by law in this case. The committee therefore recommended considering the expansion of extraterritorial legal jurisdiction for crimes concerning the recruitment and involvement of children in in hostilities, without submitting it to the condition of double criminality.
It is especially problematic when child soldiers are not only victims, but also perpetrators. One example is Dominic Ongwen, a former child soldier who – admittedly as an adult – has been charged by the International Criminal Court with recruiting child soldiers. In accordance with its statute, the ICC only has jurisdiction over people over 18 years of age. In Germany, however, persons reach the age of criminal responsibility under both general domestic and international law at 14 years of age (Section 19 StGB; Section 2 VStGB). What if child soldiers have committed serious criminal acts as minors? Due to the nature of the situation, minors have often been forced to participate in armed conflicts. As combatants of governmental armed forces, international humanitarian law (laws of armed conflict) state that they will not be punished for participating in lawful armed conflicts as long as they do not commit any war crimes. But what happens if they are recruited by irregular units involved in an armed (internationalised) internal conflict that is denied combatant status?
There are still only very few case laws on this issue. In at least one case, a German court sentenced a pupil to three years of juvenile detention – as a result of membership in a terrorist organisation while at the same time exercising force with an illegal weapon of war (assault rifle) and attempted murder. According to his self-incriminating statements – first during the asylum process and later in criminal court – the convict was recruited by an illegal armed group following a family crisis. Following brief military training, he was forced to participate in armed attacks on police and military posts before he succeeded in fleeing. After a harrowing escape that involved a number of stops along the way, he made it to Germany. He was placed in detention while awaiting trial and was ultimately found guilty of attempted murder (for the attack on the military) and imprisoned at a juvenile detention centre. This conviction for attempted murder is problematic in many ways, as at the time the child felt that he was forced to participate in the armed attack, and it was not possible to determine if the child actually attempted to shoot anyone. Furthermore, the German court also viewed the armed group as a terrorist organisation, which precluded the child from claiming combatant status – without even considering the possibility.
Regardless of how the specific situation is assessed, it should generally be emphasised that minors are treated differently under criminal law than adults and enjoy certain protections even as perpetrators. German criminal law for young offenders is focussed mainly on raising the child. Of all the resources available under criminal law for young offenders, imprisonment for – especially traumatised – youth is generally the worst option. Here, General Comment No. 10 of the UN Convention on the Rights of the Child specifies that alternatives to criminal persecution should be considered. The Optional Protocol also aims to facilitate the physical and psychological recovery and social reintegration of child soldiers (Art. 6 Para. 3 OP). When child soldiers have not only experienced serious crimes, but have also been forced to commit them, they should be supported in actively dealing with their role as a victim and also as a perpetrator, e.g. through trauma therapy. The latter is important for reintegration, even from the perspective of their victims and family members. Such a discerning approach should be incorporated into transitional justice efforts even in German exile.
Calls to action: Persons who live in Germany and have been or are responsible for recruiting and deploying child soldiers should be held accountable under international law. Here, the extraterritorial responsibility should be expanded to include recruitment and deployment of child soldiers of any age, without submitting it to the condition of double criminality. If child soldiers commit crimes themselves, they should be assisted in dealing with their role as a victim and a perpetrator through therapy and transitional justice efforts.
10. Exports of weapons
According to art. 7 OPAC, state obligations of the Optional Protocol relate not only to national, but also intergovernmental and international levels. In terms of extraterritorial obligations to respect and protect human rights, the States Parties must discontinue and prevent any measures that entail violations of the protocol in other countries. This includes weapons trade in countries where child soldiers are recruited.
In its “Concluding Observations” from 2014 for Germany, the UN Committee on the Rights of the Child expressed concern about the lack of an – recommended already in 2008 – explicit ban on the sale of weapons when the final destination is a country where it is known or possible that children are recruited or used for armed conflicts. It recommended ensuring the greatest transparency possible regarding the transfer of arms and, as per the law, forbidding the sale of weapons when there is a risk that the weapons’ final destination is such a country.
10.1 Transparency in the weapons trade
According to the government report to the UN Committee on the Rights of the Child, the Federal Government has enhanced the transparency of its arms export decisions. In addition to the annual arms export reports, it has been submitting intermediate reports on its export policies for conventional military equipment since October 2014. Furthermore, the final approval decision of the Federal Security Council (Bundessicherheitsrat/BSR) is regularly submitted promptly to the Economic Committee of the German Bundestag.
Two remarks must be made here: firstly, the arms export reports mainly provide information on the issued approvals for (and not the actual export of) arms goods. Only the actual exports of weapons of war are recorded statistically. For another thing, – which is particularly important in connection with child soldiers – small arms are indeed listed according to recipient country, but this does not include all handguns. According to the statistical definition of the federal government, “small weapons” are: guns with a War Weapons List (KWL) number (semi- and fully-automatic guns), machine pistols, machine guns, shotguns for military purposes, weapons for coreless ammunition, and parts for these weapons. Other handguns are not included though: weapons without a KWL number, revolvers, pistols, sniper rifles, inoperable weapons, hunting rifles, sports pistols and revolvers, sports guns, semi-automatic hunting and sports guns, and other shotguns. In its arms export report, namely, the federal government bases its description on the weapon categories defined by the EU . Deviating from this, the “OSCE Document on Small Arms and Light Weapons” and the working definition of the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects also encompass revolvers and semi-automatic pistols. Even when voluntarily reporting exports of small arms and light weapons to the UN Register of Conventional Arms (UNROCA), the federal government did not use the UN working term, but rather the EU definition of small weapons. Only the annual official export statistics of the Federal Statistical Office (DESTATIS) contain all handguns. Art. 5 Para. 3 of the Arms Trade Treaty of 2014, which Germany has also signed, requires the States Parties to use the UN definition of small arms and light weapons.
Call to action: In its statistical information on small arms exports, the federal government should apply the working definition of the United Nations as required in the Arms Trade Treaty signed by Germany.
10.2 Export of weapons to crisis regions
According to the German Government report to the UN Committee on the Rights of the Child, the federal government pursues a restrictive armament export policy on the basis of various legal and political regulations. Among these are the Weapons of War Control Act (Kriegswaffenkontrollgesetz), the Foreign Trade Act (Außenwirtschaftsgesetz), the “Political Principles of the Federal Government for the Export of War Weapons and Other Military Equipment” (2000), the EU “Council Common Position Defining Common Rules Governing Control of Exports of Military Technology and Equipment” (2008), and the Arms Trade Treaty ATT (2014), in which the federal government pledged not to export weapons if they could be used to commit war crimes – which would include the use of child soldiers (Art. 6 ATT). According to the Federal Government, approval generally will not be given when there is sufficient suspicion that military goods might be misused for internal repression or other ongoing and systematic human rights violations. The guideline for applying the “EU Council Common Position” specifies that in checking if the intended final destination country is respecting human rights and humanitarian international law, it is important to consider if the recipient country has set a minimum age for recruiting (voluntary and obligatory) people to the armed forces and if the country has taken legal steps to ban or prevent the recruitment of children and their deployment in hostilities.
Despite the mentioned legal stipulations and political pledges, there is still, however, no special national legal ban on weapons trade (with final destination) in countries where children are recruited. Even more: a look at the recipients of German armament exports does not reveal any evidence of a restrictive armament policy adhering to the standards of EU law and human rights. Germany is not merely one of the largest armament exporters worldwide. German armament goods also go to countries where human rights are systematically violated and countries that are involved in armed conflicts. Between 2014 and 2017, Germany reported to the UN Register of Conventional Arms, for example, exports of battle tanks to Indonesia and Qatar as well as exports of submarines to Egypt. It is especially problematic that extensive armament exports have been approved for countries participating in the war coalition in Yemen led by Saudi Arabia that has committed serious violations of international humanitarian law and despite the fact that child soldiers are used in Yemen. Between 2015 and 2017, the federal government approved armament exports of a total value of over 2.6 billion euro for Saudi Arabia, the United Arab Emirates, and Egypt alone.
This violates the criteria of the above-mentioned “ EU Council Common Position” from 2008. According to that, EU member states are obligated to refuse export licenses for military technology and equipment when, for example, there is a clear risk that these will be used to violate international humanitarian law or endanger regional stability. They also cannot be used for internal repression and aggression against another country. Despite severe criticism, the German Federal Government – under pressure from some European partner governments – is currently not prepared to completely cease the export of weapons to Saudi Arabia. These exports were suspended following the murder of journalist Jamal Khashoggi in the Saudi Arabian embassy in Istanbul at the end of 2018. The coalition compromise, however, still allowed for the supply of components for mixed European weapons systems (such as for Eurofighter military aircraft) and their export to Saudi Arabia as long as the German parts do not make up more than ten or twenty percent of the entire weapons system. In the first half of 2019 alone, 122 export licenses were also issued for military goods valued at 1.1 billion euro to six other member states of the Yemen war alliance such as Egypt and the United Arab Emirates.
During the entire period covered by the report, the federal governments also gave approval for the export of small weapons to government recipients in third-party countries, including countries with precarious human rights situations and with conflict situations. In the period from 2014 to 2017, for example, exports of guns, machine pistols, and machine guns to Brazil, India, Indonesia, Iraq, Jordan, Qatar, Malaysia, Oman, Singapore and the United Arab Emirates were approved. Minors are recruited by the armed forces or conflict parties in several of these countries. Despite the passing of the “Principles Adopted by the Government of the Federal Republic of Germany for the Issue of Licenses for the Export of Small and Light Weapons, Related Ammunition and Corresponding Manufacturing Equipment to Third Countries” (Small Weapons Principles) by the federal government in March of 2015, no major changes have been made: small arms have been exported to countries where child soldiers are used by conflict parties as early as the period from 2008 to 2015.
As has already been emphasised in “Shadow Report Child Soldiers 2013”, the distribution of small arms in particular can have wide-reaching effects on the situation of human rights and children in many countries and regions. They can be used for decades to come and can easily be passed on with no oversight. Despite final destination declarations (that specify that small arms cannot be made available to another end user in the recipient country without the approval of the federal government), despite the principle “New for Old” (government recipients of small and light weapons pledge to destroy the older weapons being replaced by the new purchase), and despite the pilot programme for post shipment checks introduced in 2015 (in the first two on-site-checks of the actual final destination of small arms in 2017 there were no objections in the case of India and the United Arab Emirates), it is almost impossible to monitor the use, passing on, and final destination, as many years of experience with German small arms exports have given cause to fear. This is especially true for conflict regions – as the federal government itself emphasises – as national monitoring mechanisms are, for the most part, underdeveloped. The German Federal Government should therefore consistently refrain from exporting small arms to countries where child soldiers are recruited by governmental or non-governmental entities.
Call to action: The federal government should suspend the export of weapons, especially of small arms, to countries where human rights and international humanitarian law is violated and where child soldiers are recruited by governmental or non-governmental entities by establishing a legal ban.
11. International cooperation
Art. 7 of the Optional Protocol calls for the cooperation of the States Parties. This also includes extraterritorial obligations to fulfil human rights. Accordingly, the reintegration of child soldiers into civil life should be promoted, e.g. through technical and financial cooperation, in coordination with the affected State Parties and the responsible international organisations.
The government report states that the federal government relies not only on political-diplomatic channels to better protect children in armed conflicts, but also provides technical and financial support for the reintegration of former child soldiers into their families and local communities. Attachment 1 of the government report lists individual project funding of the Federal Foreign Office, admittedly without a detailed listing of the associated financial expenses. Projects in Yemen (2014), Nepal (2017), and the DR Congo were mentioned specifically as well as – through payment into the post-conflict fund of the United Nations – two projects in Columbia.
There is no information on the extent to which the Federal Ministry for Economic Cooperation and Development (BMZ) supports the reintegration of former child soldiers in the government report and its attachments. According to Parliamentary State Secretary Thomas Silberhorn at the BMZ – in reply to a parliamentary inquiry in the Bundestag – as part of its efforts to promote peace and to support the social and professional reintegration of ex-combatants, including child soldiers, the federal government is currently engaged in measures in the following countries (status January 2018):
As part of the NATO Mission “Resolute Support” in Afghanistan, the federal government is also financing a high-ranking expert to deal with the issues of UN Security Council Resolution 1612 “Children and Armed Conflicts” for training and advising the Afghani armed forces. The mission has also introduced a reporting and monitoring system to help identify, clarify and punish cases where minors are recruited or when military units use force against children in Afghanistan.
Considering the great problems – and the insufficient international financing available – in association with the resocialisation of child soldiers, the opposition parties in the German Bundestag recently made an unsuccessful proposal to require the federal government to make measures aimed at demobilising as well as socially and professionally reintegrating former child soldiers a focal point of German development cooperation and to provide sufficient funding for this. The proposal of the “Die Linke” parliamentary group included other requirements – such as increasing the minimum age to 18 years for recruitment of volunteers to the Bundeswehr – that was met with opposition. The proposal was supported only by the Bündnis 90/Die Grünen parliamentary group and was rejected.
Even if the topic is not made a focal point of German international and development work, it would be important and meaningful to stock up on resources. Many countries simply do not have the resources to prevent, protect and reintegrate child soldiers. Within this context, it is important to remember that, under Sub-Objective 8.7 of the global Sustainable Development Goals, the international community pledged to end the use of children as child soldiers.
The EU also played a potentially very important role in this when it passed its own guidelines for children’s rights and armed conflicts in 2003 and updated them in 2008. In its guidelines, the EU pledges to pursue foreign policies regarding human rights which help protect children against the effects of armed conflicts. Its intention is to convince governments and organisations worldwide to apply humanitarian law and human rights to protect children against the consequences of armed conflicts. An end should be put to the recruitment of children for armed forces and immunity from punishment for crimes committed against children. The EU has indicated that it strives to coordinate its actions with entities such as the special representatives of the UN Secretary-General for children and armed conflicts and the Work Group for Children in Armed Conflicts of the UN Security Council.
Call to action: Government funding from the federal government for prevention, protection, and reintegration measures for child soldiers in crisis regions should be increased considerably. At the same time, the federal government should work toward lending greater weight to the issue in the EU in accordance with its guidelines.