This section of my blog relates to issues of gender equality and military conscription.
Select your language
This section of my blog relates to issues of gender equality and military conscription.
Attached is a letter I wrote to the President of the German Federal Constitutional Court.
Section 3(2) of the German Basic Law declares that men and women are equal. However, section 12a states that only men can be conscripted for national/military service. This is clearly a contradiction. However, the Court has ruled that the German Basic Law can contain contradictions and that it is up to the Bundestag to determine that such contradiction are in fact contradictions and to amend the Basic Law accordingly.
I am of the opinion that the Court's ruling is erroneous. At the very least the Court should declare one of the two clauses of the Basic Law to be inoperative to resolve the contradiction. However, leaving that aside, the argument in my letter is as follows.
By conventional legal practice, the Basic Law must be interpreted in a way that is consistent with international law, especially if the Bundestag has ratified an international treaty. Section 59 of the Basic Law provides for this.
In 1973 the Bundestag ratified the International Convention on Civil and Political Rights. The Bundestag has therefore already decided that the German Basic Law must be interpreted in the light of the ICCPR. This is not a decision that the Bundestag still has to take. The Constitutional Court itself is therefore acting in contravention of the Basic Law if it does not interpret it in the light of the ICCPR.
Article 26 of the ICCPR prohibits discrimination on the basis of sex/gender, even if the very existence of Germany as a state is threatened (Article 4.1). Military conscription only of men is discriminatory and therefore a contravention of the ICCPR. Section 12a of the German Basic Law must therefore yield to section 3(2) of the German Basic Law and the Constitution Court should interpret section 12a in a way that does not discriminate on the basis of sex.
Letter to the President of the German Federal Constitutional Court
Dear Sir, Madam or person of any other gender,
The International Covenant on Civil Rights and Political Rights (ICCPR, https://bit.ly/3XTwNI4) is a human rights treaty to which all EU countries, as well as Russia and Ukraine, are signatories. Compliance with it is an obligation under international law. Article 26 of the ICCPR prohibits signatories from discriminating against people on the basis of sex. Article 12.2 extends to all persons the right to leave any country, including their own. Article 4.1 allows signatories to derogate from Article 12.2 and other provisions of the treaty in the event that circumstances arise that threaten the very existence of the respective nation. However, Article 4.1 may only be invoked provided such a derogation does not involve discrimination based on, for instance, sex. Ukraine and Russia have breached the ICCPR in the following respects:
The EU Human Rights Agency has failed to make any comment on these violations of human rights or to call to account members of the European Commission or other officials who have failed to make mention of these human rights abuses. The Agency has failed to demand of EU officials that they uphold and defend the rights of men who are subjected to these abuses. Furthermore, the EU Temporary Protection Directive for Ukraine, of which mainly women and people younger than 18 and older than 59 are able to make use, is in practice predicated on the above human rights abuses by Ukraine. The EU Human Rights Agency has failed to draw attention to the fact that the EU Temporary Protection Directive is in practice discriminatory, if for no other reason than because it is not designed to ensure that both men and women have equal access to it. The Agency has not called on the EU and Ukraine to respect the right of men to leave Ukraine, nor has the Agency demanded that the derogation from Article 12.2 be applied without discrimination based on sex, as Article 4.1 requires. The Agency has, in fact, allowed this discriminatory practice to persist without comment and without any demand for measures to ensure the protection of men's human rights under the ICCPR and the ECHR.
In addition to the situation in Ukraine and Russia, the EU Human Rights Agency has failed to challenge the practice of male-only conscription and conscription in general within the EU. Article 15.1 ECHR allows any signatory to derogate from the provisions of the ECHR "...provided that such measures are not inconsistent with its other obligations under international law." Discriminatory male-only conscription is a violation of the EHCR and the EU Charter in peacetime and, since it is a treaty obligation under the ICCPR and hence under international law, it is also a breach of the EHCR and the EU Charter in wartime. The EU Fundamental Rights Agency has not challenged the practice of male-only conscription in, for instance, Finland, Estonia, Latvia, Lithuania, Cyprus, Austria, Denmark and Greece.
Male-only conscription is not only discriminatory, but is also a form of institutionalised gender-based violence against men, perpetrated by the above EU Member States. It subjects men to the violence of war, as involuntary perpetrators and victims, solely on the basis of their sex/gender, resulting in death, injury, disability and psychological trauma. On this issue, the EU Human Rights Agency has failed to adopt a position, assess the human rights situation in this regard in EU Member States and call Member States to account.
It should also be borne in mind that male-only conscription in one EU Member State or member of NATO has discriminatory effects on citizens of other states in time of war. Suppose, for instance, that Finland were to be attacked by Russia and male and female conscripts from the Netherlands and Sweden were required to come to Finland's defence. These conscripts (male and female) would be required to defend Finland, while Finnish women would be free to seek refuge elsewhere in the EU. This would amount to discrimination based on sex between Dutch and Swedish male conscripts and Finnish women, and discrimination based on nationality between Finnish women and Dutch and Swedish women conscripts.
I would appreciate it if you would reply to this email as soon as possible and take the necessary steps to address the issues referred to in it.
Kind regards,
Robert Ensor
The Netherlands
The document below contains the complaint I submitted to the BBC in May 2023, the BBC's response and my reply.