The Covid-19 Vaccination Mandate of The Bundeswehr Explained

In the last week of 2021, a video circulated on the web. It showed Sergeant Major (Oberfeldwebel) Andreas Anton Oberauer issuing a vague warning against unnamed politicians without specifying much. He set an “ultimatum” in the event that the corona policies were not lifted by 4:00 p.m. (presumably of the following day – but that was also unclear). A second video revealed the nature of his “warning.” He “ordered” his subordinates to dress in uniform and protect the decentralized anti-corona-policy protests. It goes without saying that political activism is not permitted within the framework of the military service (§15 SG (1)). It is also forbidden to try to influence subordinates politically (§15 SG (4)). Uniforms may only be worn outside of work if there is an explicit permission to do so (§3 UnifV). Since he uttered an “order”, Oberauer seems to think that he is acting within the confine of his military role. However, arbitrary, non-official instructions from superiors to their subordinates are also prohibited (§10 SG) and cannot simply be interpreted as official orders.

But just as Oberfeldwebel Oberauer cannot give arbitrary and politicized instructions, neither can his own superiors or other Bundeswehr officers. The approximately 180,000 Bundeswehr soldiers are one of the first professional groups to be subjected to a Covid-19 vaccination mandate. On November 24, 2021, then Defense Minister Annegret Kramp-Karrenbauer added the Covid19 vaccination to the Bundeswehr’s basic vaccination scheme Basis-Impfschema. Previous standard vaccinations in the scheme are measles, poliomyelitis, hepatitis A and B, mumps, rubella, whooping cough (pertussis), diphtheria, tetanus and the flu. It is, indeed, more important for soldiers than for the average population to be vaccinated against some diseases. Tetanus, for example, is an often fatal disease and its robust pathogen spores commonly reside in the soil and can easily penetrate into wounds. For missions abroad further vaccinations, e.g. against tropical diseases such as malaria, are obviously warranted. Many of the vaccines are also a good option for large parts of the population because they’ve actually got rare, often mild side effects, protect effectively against serious diseases and are only injected a few times, some even only once.

There are plenty of doubts about the long-term effectiveness of the available Covid vaccines. The standing vaccination commission recommends the first booster shot after three months. This does not mean that the immune system were not already prepared for the virus from the first injection on. Neither does this negate the assumption that the vaccine might mitigate future infections down the line. However, the effectiveness does not hold up to that of a measles vaccination, which provides strong, permanent protection with one jab. As of now, the vaccine side-effects of constant booster vaccinations are not known. Alternatively, immune protection can also be built up with an infection if the immune system is strong and the virus variant is relatively weak. We don’t know the long-term consequences of either the repeated, frequent vaccinations or the occasional infections.

The ostensible reason why the risk assessment is not left to the individual is “solidarity”. But even the Robert Koch Institute cannot quite quantify how much less often a vaccinated person transmits the disease than an unvaccinated person. The difference is marginal and becomes increasingly meaningless with the advent of ever milder variants. And the Covid-19 vaxx attitude contrasts starkly with the very lax attitude towards flu vaccination refusals.

In two open letters [1] [2] from Lieutenant Colonel (Oberstleutnant) Daniel Futschik, which were published on Boris Reitschuster’s blog, one learns that the arbitration committee Schlichtungsausschuss on the inclusion of Covid19 vaccines into the basic scheme found on their meeting on November 22, 2021 that only 90,000 men and women are vaccinated against the flu every year in the context of the required vaccination scheme. A total of 180,000 people work for the Bundeswehr. Thus, there is a disproportionate harshness towards Covid19 vaccination refusals and some few other vaccination refusals. Either there is a consistent enforcement of the basic vaccination scheme or the general obligation is lifted and only well-reasoned vaccination campaigns are ordered, e.g. for foreign deployments or for particularly dangerous flu waves that occur again and again because of the very high mutability of the influenza viruses.

Several soldiers stated that they no longer felt that they were properly advised by the duty doctors under the current political pressure. Lieutenant Colonal (Oberstleutnant) Daniel Futschik reports in his letters about comrades whose doctors did not react to mentions of previous illnesses, allergies or to questions about ingredients in the vaccines. Of course, an allergy or previous illness does not mean that the vaccination is already a danger. However, the doctors apparently did not cite any studies on its tolerability for a given allergy or previous illness, and questions were not answered. Yet, even if no studies are available, a doctor can at least make anecdotal comparisons to other drugs with comparable side-effect profiles and how they wound up on patients with this or that pre-existing disease or allergy. The soldiers mentioned in Daniel Futschik’s letter apparently had the impression that they were only being blocked.

The former sergeant Robert Müller reported such a situation. After his release, Müller was arrested from December 7th to 13th for refusing to vaccinate with Covid-19. There were several vigils in front of his barracks in Minden. In a conversation with reitschuster.de, Müller reports that he has been referred to a civilian doctor, who, however, did not address his concerns at all.

Disciplinary arrest (§26 WDO) like that of Robert Müller is considered a light punishment and can be ordered by a superior for a period of between 3 days and 3 weeks without legal proceedings. However, the punishment is not just an arbitrary tool. The refusal to follow a random order like walking the colonel’s dog or washing the generals car cannot be punished with arrest. Orders must be related to the military service. A supervisor may also not arbitrarily lock away Covid-19 vaccination deniers and let flu vaccine deniers go unpunished for the same behavior. Given the current weak flu wave and the mix of delta and omicron variants in the face of a young and athletic soldier population, both vaccinations are clearly not decisive for any war and have no other recognizable military reference.

A sergeant major (Hauptfeldwebel) sued at the Federal Administrative Court (ECLI: DE: BVerwG: 2020: 221220B2WNB8.20.0) against an eight-day detention for a non-covid-related refusal to vaccinate. The man was afraid of the vaccination because he attributed his neurodermatitis (atopic eczema) and asthma to previous vaccinations. The arrest was imposed on July 6, 2018, but was not enforced until the verdict of the administrative court on December 22, 2020. One of the refused vaccinations mentioned in the verdict is the one against tetanus, which mainly spreads through open wounds and does not readily endanger comrades. Other vaccinations in the basic scheme concern various childhood diseases for which there should be herd immunity in the troops anyway. Regardless of the disproportionate reaction to the refusal to vaccinate, I wished, of course, that the sergeant major would get vaccinated against tetanus. It is an actually effective and safe vaccine against a terrible, often fatal disease. Soldiers in particular who easily suffer wounds on the open terrain should understand that.

The verdict is quoted by General Army Inspector (Inspekteur des Heeres) Alfons Mais in a letter to the generals of the Bundeswehr which was obtained by the press agency dpa. He writes that he considers disciplinary proceedings to be inevitable. He repeats the finding of the court that a repeated refusal to follow orders is a military offense (Wehrstraftat). In doing so, he ignores the fact that – as already mentioned several times – the orders must be of a military nature. While a tetanus infection suffered during exercises or in action is a substantial risk for a soldier’s military readiness, the risk to suffer any impairment due to a missing Covid-19 vaccination is limited for young, fighting fit soldiers; especially since the virus evolution shows a trajectory towards milder variants. A military offense (Wehrstraftat) can be punished with a reduction in salary, a promotion ban or a demotion. In the letter Army Inspector General Alfons Mais stipulates that all volunteers and all fixed-termination-contract soldiers (Zeitsoldaten) who have worked in the army for shorter than four years should be dismissed if they refuse to take the vaccines (according to §55 (5) SG). The law allows fixed-termination-contract soldiers (Zeitsoldaten) to be dismissed if their continued existence would jeopardize the ‘military order’ or damage the reputation of the military.

In the previous passage he wrote, ‘When implementing this order, care must be taken that there will be no stigmatization or exclusion of still unvaccinated soldiers in order to preserve the inner structure in our ranks.’ This annoys me almost the most. The woke ‘inclusiveness’ buzz is everywhere. It is like words haven’t got any meaning anymore. He asks the troops not to exclude soldiers who he’d like to see fired! Helllllooooo?!?

This contrast between slimy posturing and harsh reality can also be found in the law. Law §31 SG expresses glib and slick care-taking intentions to nanny the soldiers and their entire families, yet without much detail. The mentioned verdict on the non-covid-related vaccine-denier arrest, however, states callously, “From the onset different standards apply because soldiers are to accept considerable health risks by profession when they follow orders – particularly on missions abroad and when the country is under attack.”

Not only does the alleged we-nanny-you-all slick posturing drop right into the toilet, but also fundamentally the respect. The fact that soldiers risk their health and even death to protect the life and freedom of others does not mean that they are plainly cheap.

Interestingly, the law on the ‘obligation duty’ (Duldungspflicht) – as the compulsory vaccination is ominously called in the military – provides no punishment at all. It merely withholds assistance from soldiers who become ill after they skipped a vaccination against the disease. In §17a (4) SG it says “If the soldier refuses a reasonable medical procedure and his ability to work or make a living is impaired as a result, he can be denied care.” I have no idea on what basis the court allows a further punishment and I don’t find it really in the text. However, the court also did not issue a penalty, either. Rather, it did simply not denounce the superior’s arrest order.

The arrest was ordered because the ‘military order’ would have been in danger otherwise. That is the prerequisite for an arrest in the case that previous punishments did not yield any results (according to § 38 Abs. 3 Alt. 2 WDO). The ‘military order’ is endangered if there is a risk of imitation from other comrades. As far as I know (and I can be wrong) it has not been clarified legally whether the imitation by others must be sufficient to endanger the operational capability of the Bundeswehr. The specific case was about common vaccinations such as the one against tetanus and mass imitation would have been very unlikely. Given the short-term protection of a Covid-19 vaccination and the unknown health ramifications of regular injections, it is even unclear whether military fitness is threatened more by taking or skipping the vaccination.

And it is precisely this danger to military fitness that is also the prerequisite for an apparently non-military order, such as a vaccination order, to be interpreted as a legitimate military order. That connection would only exist if a refusal to vaccinate would impair the operational capability of a soldier or the entire ‘military order.’ Unlike Army Inspector Alfons Mais claims in his letter to the generals such an impairment due to a lack of Covid vaccination cannot be justified.

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