Procurers of International Law

Notes on a Zeitgeist debate on the apparent necessity to modernize international law

by Jürgen Rose, Munich

Does the extent of the threat posed by the Iraqi dictator justify a war in which thousands of innocent children, women and men will meet with certain death, asked Gerhard Schröder in his Chancellor’s Statement on 18 March. His answer was a clear no. This has proven true in a most horrible way, as the war has meanwhile cost the lives of more than a thousand Iraqi civilians. The number of dead and wounded Iraqi soldiers can only be estimated and runs into the tens of thousands. The losses on the side of the aggressors are small, just a little over a hundred dead.

The Chancellor was also completely accurate with regard to this war’s lack of political, moral and international law legitimation. In this regard the Parliamentary Assembly of the European Council pointed out in Resolution 1326 of 3 April 2003 that the war against Iraq is in clear violation of international law. Moreover, this body recognized that the new doctrine of preemptive war threatens the achievements of the past 50 years in securing peace, collective security and international stability. And not least, it recognized that the offensive war against Iraq has established a dangerous precedence which could motivate other states to follow in the future. Not only politicians, but also serious and honorable international lawyers recognized the American-British preemptive war as clearly violating international law. Legal philosophers such as Professor Reinhard Merkel from Hamburg even speak of a ‘crime of international law’.

Interestingly enough, even the majority of proponents admit that the preemptive war against Iraq cannot be reconciled to current international law order. However, they vehemently deny that this poses a problem in any form. The crucial point in their argumentation is their demand for a modification of international law in accordance with the new reality. Any insistence on categorical adherence to the existing international law order is denounced as old, traditionalist thinking. At the core of this apparently reformist position is the argument that ‘the new form of aggression in the 21st century cannot be met by classical international law’. This is the view of Josef Joffe, one of the editors of DIE ZEIT weekly and one of the most conspicuous representatives of this species. This apparently new form of aggression stems from ‘countries with unconventional weapons, non-states with conventional weapons, from civil and private wars.’ Due to this new situation the law must be changed accordingly. The German Attorney General, Kay Nehm, seems to share this opinion: in arguing his case for rejecting investigations to determine whether the Federal Government is guilty of preparing a war of aggression, he reasons, among other things, that international law is in a state of flux. Moreover, he argues that international lawyers are even debating the ‘admissability of preemptive defense in the face of modern weapons of mass destruction.’ Other proponents of this position also argue that the term ‘immediate threat,’ which is the decisive factor in justifying the use of military force against an aggressor, must be redefined, particularly since states which are secretly or covertly attempting to acquire weapons of mass destruction can be expected to deploy them at any time. It is therefor justifiable to enforce the prohibition of owning such weapons by means of preemptive military interventions if necessary, and not to wait until an attack has already been made.

Proponents of preemptive warfare are right to argue that the world is no longer clearly divided between friend and foe as it was during the East-West conflict. Today, the lines of conflict in international politics run between North and South, or rather between the rich, highly developed countries of this planet and those that are poor and underdeveloped. It is moreover correct to see that the respective risks have become more diffuse, more difficult to calculate and - as the terror attacks on 9/11 drastically demonstrated - that the unimaginable can indeed become reality.

The champions of the new international law order, which allows for the unilateral application of preemptive military force, however, fail to prove that, first, their way is effective; and second, that in comparison with the other options it minimizes the damage and number of victims. Both are highly questionable. With respect to international terrorism, it must be pointed out that the majority of those responsible for terrorist acts have been captured by patient and persevering intelligence and police work, and not by major military operations. This is particularly true with regard to terrorists in Osama bin Laden’s al-Qaida network. With regard to the fight against the proliferation of weapons of mass destruction, the current case of Iraq demonstrates in particular that the meticulous UN weapons inspections discovered and destroyed more lethal arsenals of ABC weapons than both murderous wars with their devastating collateral damage.

Besides these practical arguments there is also a fundamental argument against the idea that a preemptive war can be carried out at all in conformity with international law. This view is based on the fact that the norms of action defined in any legal order must be universal. The prohibition of the use of force that every legal code of order makes in principle is one such universal norm of action. Otherwise any legal code of order that allows for the arbitrary use of force - such as robbery, plundering, murder - would make itself superfluous. This is true on the national level, where the monopoly on the use of force is given to the constitutional institutions, as well as on the international level, where the UN Security Council System is the sole institution that is legitimized to use force. Any individual right to a preemptive war, however, would ultimately mean that every state would be able to arbitrarily use any subjectively perceived threat and risk as an occasion to make war on another state. A norm allowing preemptive warfare would at the same time undermine a prohibition on the use of force, thus making any kind of legal order impossible in the first place. As a consequence, a world of war of all against all would exist in the sense of Thomas Hobbes, the English philosopher, meaning, a world in which only the law of the jungle applies. Those therefor who, in embracing the Zeitgeist, rashly and thoughtlessly propagate a seemingly immediate necessity to modernize international law would do well to heed the words of the great philosopher Immanuel Kant: ”Law should never be modified according to politics, but rather politics must always be modified according to law.’

Jürgen Rose is Lieutenant Colonel of the German Army. The above reflects his personal views only.