Federal Court of Justice | Extradition of conscientious objectors permitted

The peace movement is in turmoil. The reason for this is a decision by the Federal Court of Justice (BGH) , the highest court in Germany for criminal and civil proceedings. The BGH ruled that a Ukrainian conscientious objector may be extradited to his home country even though he faces the threat of military service there : Extradition is possible despite conscientious objection if the country of origin is attacked in violation of international law and there is no right to conscientious objection there. Unlike in Ukraine, the Basic Law in Germany stipulates that no one may be "forced into military service with weapons against their conscience" . Nevertheless, the BGH ruled that in Germany too, the right to conscientious objection can be suspended "in extraordinary circumstances" , for example if Germany is attacked.

Is the Federal Court of Justice undermining the right to refuse military service?

"The ruling is scandalous and demonstrates a worrying 'turning point' within the judiciary, which apparently also wants to align itself with the government's proclaimed 'competence for war,'" says Michael Schulze von Glaßer, political director of the German Peace Society – United War Resisters (DFG-VK) . Martin Singe, editor of the magazine "Friedensforum," fears: "Legislators could now, citing the Federal Court of Justice's ruling, decide to declare the right to conscientious objection invalid in emergency situations."

The "nd" newspaper interviewed several legal experts about the case. What do they think of the decision? "The Federal Court of Justice is completely wrong," says Kathrin Groh, Professor of Public Law at the University of the Federal Armed Forces in Munich. The fundamental right to conscientious objection is " sustainable from balancing ," meaning it cannot be restricted in favor of defending the state. This is certainly possible with other fundamental rights. Groh points to rulings of the Federal Constitutional Court confirming that the right to conscientious objection applies, especially in times of war. "Anything else would make absolutely no sense."

Experts on the decision: "Totally wrong," "vulnerable," "inapplicable"

Stefan Oeter is a law professor at the University of Hamburg. He describes the Federal Court of Justice's ruling as "vulnerable." The claim that the Basic Law does not stipulate that the right to conscientious objection applies without restriction is "a bold thesis." Robert Esser, professor of criminal law at the University of Passau, also told "nd": "I think the Federal Court of Justice has not accurately assessed the situation in the case of a German defense situation."

All experts interviewed point out that the Federal Court of Justice has no power to challenge the right to conscientious objection, since the Federal Constitutional Court is ultimately responsible for matters related to the Basic Law. So, should conscientious objectors—at least in Germany—have nothing to worry about?

"I'd be relaxed—we should all keep a low profile," says Groh. Her colleague Oeter points out that the decision concerns an extradition request from Ukraine; the reference to Germany is merely an "orbiter dictum," a passing remark by the court "that has no decisive force on the legal situation." In his opinion, such minor statements shouldn't be given too much importance.

"I would be relaxed – we should all keep a low profile."

Kathrin Groh Professor of Public Law at the Bundeswehr University Munich

However, a constitutional complaint against the ruling cannot be filed. According to Groh, that would have been open only to the affected Ukrainian, who opted against it. The legal scholar says: "Unfortunately, no one can do anything about the ruling itself and what it said." While she believes the right to conscientious objection continues to be comprehensively protected by the Constitutional Court's previous rulings, criminal law professor Esser points out that these rulings date back many years, had different focuses—and were primarily issued in peacetime. "The legal scenarios used by the Federal Court of Justice for the hypothetical defense scenario in the event of an attack on Germany are anything but constitutionally clarified," says Esser.

Just quickly refuse military service

Like Schulze von Glaßer of the DFG-VK, he also speaks of a turning point in the right to conscientious objection, which the Federal Court of Justice has implemented "under the pressure of the current global political situation" - at least for extradition proceedings.

But even if the Federal Court of Justice's ruling does not directly restrict the right to conscientious objection in Germany, the federal government can change the way applications for conscientious objection are decided through a simple law. Once recognized, the recognition of the objection remains in effect even in the event of war, explains Grohe from the Bundeswehr University in Munich. Is it therefore advisable to refuse military service promptly – before a possible change of course? "So far, I haven't heard that the procedure is going to be changed," says the lawyer. Grohe says: "If you want to continue to sail under the radar and don't want to send any signals, you really shouldn't do anything at the moment." After all, there is currently no list of possible candidates for military service.

This also corresponds to the recommendations of the German Research Foundation (DFG-VK). "Currently, we recommend that civilians prepare a refusal, but not submit it yet," says Schulze von Gaßler. Nevertheless, the Federal Court of Justice's decision has sparked an internal debate on the recommendations. Further discussion is scheduled for this weekend. The DFG-VK is then organizing a nationwide congress "against a new military service – and for the refusal of all military service."