German court declares Iraq war violated international law
By Justus Leicht
27 September 2005
Just a few weeks ago, a highly significant judicial decision was
handed down by the German Federal Administrative Court but barely
mentioned in the German media. With careful reasoning, the judges
ruled that the assault launched by the United States and its allies
against Iraq was a clear war of aggression that violated
international law.
Further, they meticulously demonstrated that the German government,
in contrast to its public protestations, had assisted in the
aggression against Iraq without having any legal right to do so.
Although the decision was made three months ago, the judgement and
its legal arguments have only just been made available in written
form, comprising more than 130 pages.
The decision was made in relation to legal proceedings initiated by a
German army officer who had refused to obey an order following the
invasion of Iraq by the US-led coalition of forces because he feared
that he would in effect be supporting the war. As a result, he was
demoted from major to captain and the army filed a criminal complaint
against him for insubordination. In its latest judgement, the Federal
Administrative Court reversed the demotion and said the charges
against the officer contravened Article 4, Paragraph 1 of the German
Constitution, which guarantees the right to freedom of conscience.
The 48-year-old career soldier was assigned to work on the
development of a computer program that he feared could be employed in
the war against Iraq war. He informed his superior that he could not
carry out the order. He then sought the army chaplain and his unit's
doctor and informed them that, in his opinion, based on what he had
read in the German press, the war contravened international law. The
doctor then sent him to a psychologist and even arranged for him to
be examined to determine his mental sanity in an army hospital—a
reaction that reminds one of Franz Kafka's novels and the actions
taken by Stalinist regimes against dissidents.
His superior also sent him to the army unit's legal advisor so
that "the legal background could be explained" to him. The advisor
threatened him with dishonourable discharge and demotion. The soldier
challenged the legal advisor over the war's legality under
international law, prompting the advisor to turn to the German
defence ministry.
The advisor received a written reply stating that although the German
government rejected the war, it had given permission to the US and
Great Britain to use its airspace and their military bases in
Germany, as well as agreeing to the operation of German AWACS
airplanes for the surveillance of Turkish airspace.
The defence ministry defended its stance by citing Germany's
obligation as a member of NATO to assist the US and Great Britain,
and United Nations resolution 1441, which threatened Iraq with
serious consequences unless it proved that it had destroyed its
weapons of mass destruction. It was "an open question" whether the
employment of military measures required another UN Security Council
resolution, the ministry said.
In other words, the German coalition government of the Social
Democratic Party (SPD) and the Green Party used exactly the same
legal reasoning as the Bush administration. As the officer was not
prepared to accept these arguments and maintained his refusal to obey
orders, he was demoted and a complaint filed against him. The German
Federal Administrative Court has now pulled this argument to pieces
and overturned it juridically.
Grave concerns for international law
Due to strong public resistance to the remilitarisation of Germany
after the Second World War, under conditions in which the army
leadership initially consisted largely of former members of the Nazi
Wehrmacht, the rebuilding of the German army in the 1950s was tied to
a series of democratic provisions. This included the right to not
follow orders that contravened human dignity, the constitution or
German law, or that violated international law.
The Constitutional Court, however, left open whether such criteria
applied in this case. It said a decision on this issue did not have
to be made. The defendant's complaint was upheld because he made a
difficult decision based on his conscience under special
circumstances.
The court left no doubt, though, that it had "grave concerns for
international law" arising from the Iraq war and Germany's support
for it.
The court referred to Article 4, Paragraph 4 of the United Nations
Charter, which classifies "every" threat and use of military force
against another nation as an act of aggression. It specifies only two
exceptions: a formal resolution of the UN Security Council and for
self-defence purposes. Neither of these was the case with Iraq.
In particular, the United States had no legal basis for attacking
Iraq based on previous UN resolutions that it itself had introduced.
UN Resolution 678 in 1990 had only authorised the expulsion of Iraq
from Kuwait. The ceasefire Resolution 687 in 1991 certified that this
aim had been realised. This resolution also threatened Iraq
with "serious consequences" if it used poisonous gasses or other
biological weapons and renewed the demand for Iraq to maintain a
clear distance from "international terrorism." This resolution was
accepted by Iraq.
The court stated that UN Resolution 707 in 1991 did not revoke the
ceasefire nor has it since been repealed. No subsequent resolution
contained a justification for military operations, not even in
relation to forcing Iraq to cooperate with weapons inspectors.
This fact was seen by the court as particularly valid in relation to
Resolution 1441, passed on November 8, 2002, which was later used by
the US and Great Britain to justify war.
This resolution gave instructions to the chief weapons inspectors,
Hans Blix and Mohamed El-Baradei, to report any lack of cooperation
from Iraq to the UN Security Council, so that it could properly
assess the situation. The decisions that the UN Security Council
would then take in such a situation were left open, according to the
court.
Although the Security Council threatened "serious consequences," it
did not make explicit what form they would take. On the contrary,
Resolution 1441 expressed "unmistakably," according to the court,
that the matter had yet to be determined by the Security Council. The
court argued that the resolution did not give a free hand for
military action, but rather—based on the UN Charter—left the decision
about any consequences to the UN.
With the formulation "serious consequences," Resolution 1441 only
issued a general warning, but had deliberately distanced the Security
Council from authorising the use of force by the US and the UK.
The court argued that only if the UN Security Council resolution text
had explicitly provided for the use of military force, within the
confines of the UN Charter, would military action against Iraq have
been permitted. An apparent "silence," or the position that the
meaning of "serious consequences" was left unclarified, did not
suffice to justify military action.
The court also did not consider the objection valid that the
resolution text was interpreted differently by the US and UK. It
stated: "For the determination of what the UN Security Council had
decided in one of its resolutions, what is decisive is not what
government representatives `thought' about the proceedings and
resolutions themselves. It is far more dependent on what was actually
laid down in the text of the agreed resolution. If it is not in the
text, an appropriate draft resolution is lacking. The mental
reservations of governments or their representatives are not valid
insofar as international law is concerned."
The text of Resolution 1441 showed, on the contrary, that an
exemption to the fundamental prohibition on the use of force had not
been decided on. Nowhere did it contain an endorsement or an
authorisation for any government or state to use force according to
Chapter VII of the UN Charter. The term "authorisation" in this
context did not even appear anywhere in the resolution.
The attempt of the governments in the US, UK and Spain to have a
resolution passed immediately before the start of the war that would
have authorised military action did not find majority support in the
Security Council. To avoid the resolution being defeated, the draft
resolution was withdrawn.
German support for the war violated international law
What was particularly noteworthy was that the judges continually
referred to a paper published by the scientific study service of the
German parliament committee on January 2, 2003, that also concluded
that the UN resolutions did not legitimise an attack on Iraq. Even if
one assumes that not every parliamentarian read this paper, one has
to assume, at the very least, that members of the cabinet and German
Chancellor Gerhard Schröder himself must have been made aware that
the Iraq war violated international law.
The court said that the US and UK had, in their diplomatic notes to
the UN Security Council, nowhere made a substantiated claim that a
dangerous situation existed—something necessary if a right to self-
defence was being put forward as the justification.
The court devoted much detail to the logistical support provided by
Germany to the war—in particular, the use of military bases and the
fly-over rights for the US and UK.
It soberly declared: "The support for an illegal military action can
not only be expressed through military participation in combat
operations, but also in other ways. A breach of international law can
be committed through an action or—when an obligation exists under
international law—through inaction. Support given to an offence under
international law is itself an offence." Article 26 of the German
constitution, which prohibits the "preparation" of an illegal war,
prohibits even more forcefully any support of such a war.
The obligations of Germany under international law were sourced to
Resolution 3314, passed by a general sitting of the United Nations on
December 14, 1974, the works of the International Law Commission of
the United Nations, and various international treaties and customs
that stem back to the Hague Convention of 1907.
The last-mentioned prohibited states from allowing their territory to
be used for the transport of troops or military supplies. The Hague
Convention also prohibited third nations from supplying
telecommunication services in every form as well as airspace rights.
By Article 25 of the German constitution, these general rules of
international law, as part of German federal law, take priority over
other laws.
The claim of the German government that it had a "partner duty" as a
member of NATO did not invalidate these rules. The NATO Treaty refers
to the UN Charter and does not compel its member states to support
wars conducted by other NATO members that violate international law.
In addition, the court stated that the clause that specifies
supporting other NATO members only applies in those cases where
an "armed conflict" takes place inside NATO territory. Nor did the
NATO Council agree to any kind of cooperative action in the case of
war with Iraq. In addition, the NATO Treaty contained a clause—
inserted in 1949 at the behest of the US—where member states cannot
be forced to fulfil obligations to the NATO Treaty or its
implementation if this violates their own national constitutions.
The German government also did not have the right to offer its
support for the war for political reasons, as it was bound to the
rule of law by Article 20, paragraph III of the Constitution and by
Article 25 to the general regulations of international law.
At first glance, it is amazing that this judgement did not make
larger waves, as the German government has effectively been accused
of violating both the German constitution and international law. The
government's claim that it did everything in its power to prevent war
in Iraq was proven to be false by one of the highest courts in the
land. Not only did the government have the legal possibility, but it
also had the responsibility to bar use of German airspace and bases
on German soil from use for the Iraq war.
In most of the media, Gerhard Schröder is celebrated for his supposed
anti-war stance. Others accuse the SPD-Green coalition government of
having damaged the transatlantic alliance with the United States over
its handling of the Iraq war. If a coalition government consisting of
the Christian Democratic Union, Christian Social Union and Free
Democratic Party emerges out of the recent German elections, it will
either continue the policy of Schröder or bring Germany closer to the
US—and most likely confront decisions similar to those made by
Schröder the next time the US attacks a country. As for the recently
formed Left Party-Party of Democratic Socialism, one only needs to
note that its leading candidate, Gregor Gysi, has praised Schröder's
policy with regard to Iraq.
See Also:
Munich Security Conference
Schröder demands role for Germany as world power
[18 February 2005]
Paris and Berlin consider military intervention in Iraq
[28 January 2004]
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