September 14, 2005

The appended article is a translation of one that appeared in the left-wing German newspaper junge Welt on September 10^th. It reports on a recent decision by a German court that the US/UK war in Iraq is a violation of international law. The court was ruling on a case brought before it by a German army Major and dealt specifically with the duty of a soldier to obey an order and the legal issue of neutrality in international law, a status publicly avowed by the German government.

While there is some interest in reading what a court has to say on this subject, there is absolutely nothing new here. It's like reading a paper invoking the laws of physics to calculate the trajectory of a batted baseball. Everyone with knowledge of the field knows the rules and the outcome is a foregone conclusion. In physics.

In the real world in which international law governs the relations between states, for which the laws of physics governing the batted ball are a metaphor, the outcome is anything but a foregone conclusion. The really interesting question is why, when every state has experts to advise it on the law, the prevailing climate of international relationships, in the face of universal claims to the contrary, is lawlessness.

My answer to this question is that in the absence of a punitive force which makes lawlessness costly, there will be lawlessness because lawlessness pays.

This answer leads to several interesting corollaries:

• The policy-determining and -implementing personnel in states are criminals in the ordinary sense of the word.
• The elites of states, i.e., persons who are grossly over-represented in the percentage of the national wealth they own or control, are likewise criminals in the ordinary sense of the word.
• In a revolution in which a new state arises to replace the old one, the revolutionary state is no more bound to be lawful than was the old one.
• In the absence of an international punitive force, the duty to enforce international law falls, of necessity, to the non-elite citizenry of every state.

Interestingly, in accordance with the last point, the Iraqi Resistance are fulfilling their duty by severely penalizing the US/UK for their violation of international law.

OTTO

National

International Law Violated

Federal Administrative Court condemns support of Iraq war by federal government as illegal

By FRANK BRENDLE
Translated by Otto Hinckelmann

By supporting the Iraq war, the federal government [of Germany] has violated international law. The accusations made by the peace movement have now been explicitly confirmed by the Federal Administrative Court. This past week, the judges in Leipzig made public the basis for their judgment, originally reached in June, in a written opinion. In it, in view of the war and German support for it, the court expressed "grave legal objections."

Operating on two tracks

German army Fox-type tank

Barely three years ago, in the middle of the last federal election campaign, federal Chancellor Gerhard Schröder (SPD) [Federal Chancellor since October 27, 1998, having formed a coalition government with the Green Party] publicly opposed the US Iraq war policy and German participation in it. Schröder said, "We are not available for adventures." In fact, the federal government has moved along two tracks: In public view it opposed the war preparations of the US and Great Britain, but in practice it gave them unlimited support, excluding direct sending of its own soldiers. The US received unlimited overflight and transit rights in federal territory and German airspace; war materiel and troops were unloaded and reloaded for further transport to the war zone. US troops trained in the Grafenwöhr practice area for deployment in Iraq. In order for the war preparations to proceed unhindered, seven thousand German soldiers were assigned to guard duty around US bases. In Kuwait, German Fox-type tanks were made available to the "Coalition of the Willing." Later, German crew-members flew on board NATO AWACS surveillance aircraft that flew from Turkey and spied from Iraqi airspace.

The peace movement saw these activities as a violation of international law and the constitution. In an appeal addressed to German soldiers they were asked "to oppose all orders whose performance would serve as preparations or support for a war against Iraq." A Major who did exactly that was demoted for disobedience. To defend himself he placed his case before the Federal Administrative Court [in Leipzig]. That court has confirmed the position of the peace movement. One of the participants in the decision was Judge Dieter Deisenroth, a member of the board of directors of Jurists Against Atomic, Biological, and Chemical Weapons, who, at the end of 2002, had rendered an opinion that, "not only the aggressor, but also those states which help the aggressor," are acting in violation of international law.

The decision explicitly states that there is no basis in international law for the Iraq war. In relation to the Federal Republic, the judges rejected the claim that Germany was a neutral state, saying that such a state has the obligation in international law "to defend, with force if necessary, against any violation of its neutrality." Instead, wrote the judges, the Federal Republic has pursued the aim of "facilitating or even promoting the actions of the US and the UK" by the support they rendered.

The argument belabored by the Federal Republic that Germany was merely fulfilling its obligations as a member of NATO was rejected by the court. There is no obligation "to support actions by NATO partners which contravene the UN charter and international law." While official sources were reluctant to comment on the judgment, it was greeted enthusiastically by peace groups. Ralf Siemens of the Campaign Against the Draft, Alternate Service, and the Military sees the decision of the court as undermining the attempt by the SPD [Socialist Party of Germany, in power since Oct. 27, 1998] to portray itself as a "Peace Party" in the current electoral campaign. The peace movement has been given an impetus "to pay greater attention to the activities of the German army" rather than just to the US.

A slap in the face

Nevertheless, it is unlikely that there will be mass rebellion among soldiers relying on the current precedent in the next war that violates international law. The judgment limits itself to freedom from punishment for military disobedience in the case of a moral decision in relation to a violation of international law. Just as conscientious objectors even today are not recognized until they have presented a detailed "moral justification," so must professional soldiers present their moral dilemmas to their superiors and, in case of disagreement, to the courts. The number of soldiers who will fulfill the Federal Administrative Court's ideal of "critical obedience" is, in any case, vanishingly small. The German soldiers who learned national defense on the Elbe instead of in Afghanistan have been replaced by a new generation in the past 15 years which has been trained for action.

The court's decision is not only a sound defeat for the Federal Government, but also for the Attorney General. In March of 2003 he had rejected the accusation by the PDS [Party of Democratic Socialism, politically to the left of the SPD, with roots in the former Communist East Germany] against the Chancellor [Gerhard Schroeder, SPD] "for appearing to prepare for a war of aggression." At the time, he wrote that it was far-fetched "to subsume under the concept of waging war mere toleration or acts of omission." Now that a Federal Court has straight out declared the behavior of the Federal Government as aiding and abetting a violation of international law, it will be interesting to see on what basis the Attorney General rejects the next accusation against leading politicians.

A case study: Army Major Florian Pfaff

The decision of the Federal Administrative Court rests on the case of an army Major who, immediately after the beginning of the war against Iraq, had notified his superior that he considered the war to be a violation of international law and that he would not obey any order which would represent support for that war. Florian Pfaff, who was 46 years old at the time, was involved in developing software with which the Army intended to manage all its materiel. The Major, who is a member of the military association Darmstaedter Signal, told the pacifist publication, ZivilCourage, "If I had continued to work on this project, I would have participated in absolutely everything, also on the guarding of US bases or on AWACS missions. Thus, I would have participated indirectly in the war."

Since his commander would not give him an alternate assignment, Pfaff refused to perform further service. He based his action on the military law, according to which orders which violate international law may not be obeyed.

Subsequently he was subjected to a disciplinary hearing for disobedience and a court martial reduced his rank to Captain. The military judge stated that Pfaff's duties were in no way supportive of the US war. Additionally, the functionality of the military would suffer in the absence of a "readiness to obey."

Pfaff filed an appeal against this judgment, in which, just as the military disciplinary attorney had accused him, he accused the embarrassed officer of having "violated the core military duties" and demanding his "removal from service."

The second Military Panel of the Federal Administrative Court agreed completely with Pfaff. The judges stated that the duty of a soldier to obey ends at the point where his conscience forbids him to carry out an order. And orders which are directed against human rights or international law need not be obeyed.

Documentation: "Aiding and abetting a crime against international law is itself a crime against international law."

* The most important comments by the Federal Administrative Court on the contravention of international law of the Iraq war and its support by the Federal Government [of Germany]:

In respect to the war begun by the US and the UK on March 20, 2003 against Iraq there are grave legal objections in view of the prohibition against the use of force by the UN charter and other relevant international law. The governments of the US and the UK can rely neither on resolutions of the UN Security Council nor on the Right of Self Defense enunciated in Article 51 of the UN Charter…

An order whose transmission or execution can be considered as appropriate to, and is intended to, disturb the peaceful coexistence of people is legally non-binding.

A violation of the international prohibition against violence cannot be negated simply because the Federal Republic of Germany has repeatedly said publicly, "that German soldiers will not be involved in combat." Support for a military action contravening international law can be committed not only by an act or an omission. Aiding and abetting an offense against international law is itself an offense against international law.

In international law, a neutral state is bound to resist, with force if necessary, every violation of its neutrality (…) Military forces of a party to a conflict which are on the territory of the "neutral state" are to be prevented from participating in combat (…)

Neither the NATO treaty, nor the NATO military statutes, nor other NATO agreements anticipate an obligation by the Federal Republic of Germany to support actions by its NATO partners that contravene the UN Charter or international law. NATO may take no decision, nor carry out anything which violates the UN Charter (…)

Grave concerns in international law have arisen in consequence of many (…) verified instances of support by the Federal Republic of Germany on behalf of the US and the UK in connection with (…) the war against Iraq. This applies, among others, to the granting of overflight rights to military aircraft of the US and UK which departed German territory for the war zone in the Gulf region or returned from there. It also applies to the permission to send troops, to the transport of weapons and military supplies from German territory to the war zone, as well for all undertakings which could lead to the territory of the German state becoming a point of origin or a hub to serve to support military operations directed against Iraq. The objective sense and purpose of these measures was to facilitate, or even to promote, the military operations of the US and UK. As a result of this policy, there are grave objections to the behavior of the Federal Government in this matter in view of the prohibition against the use of force international law and the cited provisions of the Fifth Hague Convention (…)

Full [German] text of the Federal Administrative Court's ruling (pdf document)