Practice Relating to Rule 141. Legal Advisers for Armed Forces
Germany’s Military Manual (1992) states:
A lawyer who is qualified to exercise the function of a judge is assigned to every military commander at the division level and above to perform the following tasks:
–to advise the commander (and his subordinate disciplinary superiors) in all matters pertinent to the military law and the international law;
–to examine military orders and instructions on the basis of legal criteria;
–to participate in military exercises (in his wartime assignment) as a legal officer whose duties include giving advice on matters pertinent to international law; and
–to give legal instruction to soldiers of all ranks, particularly including the further education of officers …
The Legal Adviser has direct access to the commander to whom he is assigned.
In 2005, in the Limits of Obedience to Superior Orders case, Germany’s Federal Administrative Court noted:
… advising the commanding officer and the disciplinary superiors subordinate to the commanding officer in all questions of military law and
international law, as well as the legal co-examination of orders and instructions is part of the tasks of a legal adviser (No. 146 ZDv 15/2).
[emphasis in original]
In 2006, in a white paper on German Security Policy and the Future of the Bundeswehr, Germany’s Federal Ministry of Defence stated:
6.9. Military legal system
Military decisions may only be taken in compliance with the established principles of national and international law. It is therefore essential that all members of the Bundeswehr [Federal Armed Forces] are familiar with the law and know right from wrong. The servicemen and women are entitled to seek protection of their rights before independent courts in case of such rights being violated. In the Armed Forces it is primarily the members of the Bundeswehr Military Legal System who have the task of imparting the necessary legal knowledge.
They also advise military superiors, particularly on matters of military law and criminal law as well as constitutional and international law. The Bundeswehr Military Legal System has a civilian structure and consists of the following:
- Courts having jurisdiction over military disciplinary offences and complaints by military personnel
- Disciplinary attorneys for the Armed Forces including the Disciplinary Attorney General for the Armed Forces
- Legal advisers
- Legal instructors
More than 100 civilian legal experts are currently employed as legal advisers to commanders and directors in units, agencies and offices of the Armed Forces at division level and higher. These act, in a secondary function, as disciplinary attorneys for the Armed Forces. Some 50 civilian legal instructors are employed at schools and academies of the Armed Forces. Military jurisdiction is exercised by the North (Münster) and South (Munich) Disciplinary and Complaints Courts of the Bundeswehr, with a total of 15 divisions and the two Military Affairs Divisions of the Federal Administrative Court in Leipzig. The courts having jurisdiction over military disciplinary offences and complaints by members of the Armed Forces are staffed by professional civilian judges and military lay judges. They take decisions on military complaints and disciplinary matters. In so doing, they are independent and bound only by law. Prosecution of criminal offences, however, is the exclusive jurisdiction of civilian criminal courts.
The operations-oriented posture of the Bundeswehr also poses fresh challenges to the Military Legal System. Legal advisers take part in operations abroad in the rank of field-grade officers. They advise the contingent commanders on the wide range of legal issues pertinent to operations. Not only are they tasked with the interpretation of United Nations resolutions, Status of Forces Agreements and Rules of Engagement, for instance, but they must also conduct a legal sufficiency review of operation plans to ensure that they comply with the rules of international humanitarian law. They are besides employed in multinational headquarters together with legal advisers of other nations. Their tasks additionally include supporting the deployed units during disciplinary investigations in the country of deployment, rendering administrative assistance to German investigative and judicial authorities, and providing military personnel on operations with initial legal advice on private legal matters.