War Violates International Law
By Tobias Pflueger
[This article is translated from the German "Urteil volkerrechtswidriger Krieg" on the World Wide Web, www.tobias-pflueger.de. Tobias Pflueger won an appeal from a desertion conviction on March 2, 2000 in a court in Tiergarten, Germany. The German court declared that the US/NATO war on Yugoslavia violates international law and German law.]
Debates occurred and occur in the anti-war movement, the peace movement and peace research whether the NATO war against Yugoslavia violates international law (as a breach of the UN Charter) and the German constitution (Art.26,1).
Some people emphasize that international law and the German constitution were broken. Another part pretend not to care that the war against Yugoslavia was a breach of the law.
In this connection I warn of two positions which could lead into cul-de-sacs.
The first position says that international law and the constitution are the laws of the rulers. That they do not hold or observe them is logical.
This position is analytically correct. However the conclusion means that we take away our chance of showing the rulers that they do not observe their own rules. Legitimation problems are always created when for example the German minister of justice Herta Daubler-Gmelin said before the war that the US broke international law through the fact that it killed German citizens with the death penalty. Shortly afterwards she declared in an ignorant way that the breach of international law in the war against Yugoslavia was not so terrible. The necessity to help supervened. These contradictions must be clearly exposed. Legal norms are not only valid when they strategically fit the dominant concept.
In my opinion the existence of binding norms of international law is an advance of civilization. International law creates important hurdles before a state can wage war. The NATO states have torn down important barriers here. States with a model character for many have replaced international law with the brutal law of the stronger or jungle law. The basic rights catalogue of the constitution is also an advance even if basic rights are undermined everywhere under the sun. Whoever cannot refer positively to international law and the constitution should do this at least for tactical reasons.
Both the breach of international law and the constitution are not acceptable. Regardless whether one backs international law and the constitution in its real configurations and interpretations or not, international law and the constitution are important civilizing intermediate stages which do not forbid but make more difficult war as a means of politics. The brutal enforcement of power and interests which are essentially responsible for wars are made somewhat difficult but obviously not prevented through the constitution and international law. The new NATO strategy raises the breach of international law into a normal possibility of NATO war policy. International law and the constitution are stages on a ladder to the principle that war may not be a means of politics.
The second position that I resist concentrates criticism on the war against Yugoslavia on the breach of legal norms and argues only legalistically. As everybody knows, the second Gulf war was approved by the UN Security Council and thus formally covered by international law and in a certain way a UN war. (Even if the warfare of the US repeatedly violated the international law of war, for example in burying alive surrendering Iraqi soldiers.)
Whoever only regards war as wrong when it breaks international law misjudges that wars always involve the enforcement of interests and cause or includes the death of persons. The killing of people can never be right whether the killing is with international law or against international law... Norms of international law alone do not prevent any war; they are only intermediate steps... In East Timor, the Indonesian military had a free hand for incursions... International law did not prevent incursions and assertion of interests there.
Wars, even UN wars, will always be waged because brutal interests of individual states, firms or alliances are involved. Wars are never purely humanitarian actions. Whether they are killed with or without international law is the same to the dead of a war.
War may never be a means of politics regardless of the actors of war (NATO, UN, individual states like the US, Russia or Germany) and independent of legal norms like international law and the constitution.
War as a means of politics and the military must be proscribed and made impossible!...
An illegal operational mission should be stopped on the strength of objective law... Extending punishment in order not to endanger the troop in lawful operations is not obvious. The soldier who leaves the troop to avoid participation in an operational mission acts at his own risk. He cannot be punished on grounds of desertion if the action should not have taken place because it was objectively unlawful. Constitutional interpretation (#16, par 1 WStG) leads to the same conclusion.
The state is hindered by the subjective rights of soldiers from requiring their participation in an illegal war action under criminal threat. In the course of an armed action, the state intervenes as intensively as possible in the basic rights of involved soldiers. Soldiers are expected to kill other persons for the goals of the state and in the extreme case to sacrifice their own lives. Criminal sanctions can only be constitutionally justified when lawful goals are pursued with the incursion.
The state is not entitled under any imaginable point of view to force a soldier to cooperate in actions against his will and at the risk of his life that are illicit under international law. This is also true for the soldiers not directly dispatched to the war front. Under the conditions of modern division of labor warfare, soldiers in logistics perform just as important a service for the military success as the combat troop itself. The presence of the soldier with the troop and his constant readiness for action can be important for the success of a war. However the individual soldier does not need to be expelled.
Individual commands recognized as non-binding can be refused. Individuals can remove themselves without punishment from troops when expected to participate in an unlawful war action...
Art.4, sec 3 of the German constitution gives the right not only to refuse military service generally but in a situation-oriented way in relation to specific actions and participation in an illegal action... Punishment on account of desertion is excluded for the specified reasons. The offense of arbitrary absence can be set aside.
2. The action of the German army against the republic of Yugoslavia was objectively unlawful as a violation of the general rules of effective international law.
a) The air war against the republic of Yugoslavia violated the absolute prohibition of force in Art.2, sec 4 of the UN Charter. The prohibition of force includes every kind of force of arms directed against the territorial integrity or political independence of another state. Such force is inconsistent with the goals of the United Nations. The justifications for violent military actions explicitly recognized by the Charter of the United Nations were not given. The Security Council of the United Nations issued no authorization for implementing action according to Art.39,42 of the UN Charter.
A case of collective self-defense according to Art.51 of the UN Charter hardly existed since the republic of Yugoslavia did not wage an armed attack against a member of the United Nations. The violent action of the Yugoslavian state against the Albanian ethnic group in Kosovo did not change that. Human rights violations that a state perpetrates against its own citizens can not be equated with an attack on a foreign state according to customary international law. The UN Charter does not recognize further exceptions from the prohibition of force.
b) The war against Yugoslavia was also not covered by an unwritten established right of international law. While attempts were made to justify the action with the inactivity or incapacity of the UN Security Council for introducing measures according to Chapter VII of the UN Charter, the actual prerequisites for justification were lacking. The war began without even waiting for a resolution of the Security Council. Incidentally the prevention of the desired resolution by the veto of a permanent member according to Art.27, sec.3 UN Charter cannot be regarded as a legal abuse entitling another state to pass over the prerogative of the Security Council and take the measures considered necessary. Quite the contrary, the permanent membership in the Security Council and the power of veto of the permanent members were created to prevent belligerent conflicts being instigated over the heads of the most important states.
The justification of emergency assistance also does not apply. Whether the humanitarian intervention in the original sense - the violent intervention of a state to save its own citizens abroad - would be permissible under international law can be left unanswered. The war against the republic of Yugoslavia was not waged to protect its own citizens. Application of Art.51 UN Charter also cannot be considered. The mission did not pursue the goal of directly supporting the Albanian population of Kosovo in their military self-defense against human rights violations by the Yugoslavian state. This goal would have required intervention with ground troops in the Kosovo combat. The war was actually waged as an air war on the territory of the Serbian republic and had the objective of weakening the Yugoslavian republic to force a change of its policy in Kosovo and end the human rights violations committed there.
An arbitrary intervention of this kind is not allowed according to effective international law even if it occurs out of humanitarian motives. According to the intention of the UN Charter, a violent settlement of international conflicts is no longer possible outside the international system of collective security. The UN Charter withdrew the use of force between states from the disposition of individual states and transferred decisions to responsible groups of the United Nations. No room remains for emergency rights exercised individually beside the right of self-defense guaranteed in Art.51 UN Charter.
The use of force against a foreign state is unlawful without participation of UN organs. Individual member states can not ignore this prohibition by weighing considerations. The reason is not first of all that the orderly procedural authorization by the UN Security Council would guarantee greater accuracy. The Security Council does not decide whether a measure is materially lawful or unlawful. Permanent membership in the Security Council is tied to the respective member's world political importance, not to its constitutional condition.
War operations can no longer be waged against the most powerful states controlling weapons of mass destruction. The UN Charter deems the peril of a war waged against a nuclear power as more significant than the abuses which this war can remove. Effective international law and state praxis have held to this principle since 1945...
The action of the German army against the republic of Yugoslavia violated international law from the beginning... Battle commands in the commendable intention of preventing further human rights violations up to genocide should not imputed to those responsible for the action. Whether the command represents criminal injustice is not important for the questions to be decided here.