The goal remains: Turning swords into plowshares

 A call to violate international law prohibiting violence is a call for a breach of the constitution

cc. In the following letter to the editors and chief editors of the Berlin newspaper “Der Tagesspiegel”, Dr Dieter Deiseroth, judge at the Federal Administrative Court, has raised firm objections to the fact that in future Germans are called to accept war as a “continuation of politics by other means” and thus radically break with the reason of state of the German Basic Law claiming to respect international law and never again to take part in a war of aggression.

Dear Dr Rudolph, dear co-editors
and editors

I do apologize that I take the liberty – outside my official activity – to approach you concerning a column entitled “Pazifistische Melodien” (pacifist melodies) by the historian Dr Alexander Gauland, published on 23 July 2012 in your newspaper. With all due respect for the personal freedom of opinion of every individual, I am very surprised, indeed shocked that a respected liberal-conservative newspaper like the “Tagesspiegel” supports public dissemination of a text which in substance invokes disregard and violation of established constitutional and international law.
The historian Dr Gauland, former chief civil servant of the Hessian State Chancellery of Prime Minister Walter Wallmann (CDU), is known to be a very well-read theorist of conservatism with a number of esteemed publications. The scandalous fact of his “Tagesspiegel” guest contribution is in my opinion that he makes the case for merely utilitarian political considerations when deciding on the military enforcement of foreign and security policy interests.
Thus Gauland in particular negates the prohibition of any use of military force in interstate relations anchored in the UN Charter, a historical achievement of humanity resulting from the crimes of the Second World War. The UN Charter allows only two narrowly defined exceptions of this prohibition: firstly, the use of force without prior explicit authorization from the UN Security Council (Article 42 UN Charter) and on the other hand – until the Security Council has taken necessary measures – the interim self-defense of a state and its allies against a present or imminent threat of military attack (Article 51 UN Charter).
The prohibition of the use of force under international law established by the UN Charter is part of the so-called peremptory norms of international law (“jus cogens”) and thus also of the “general rules of international law” within the meaning of Article 25 of the German Basic Law. These “general rules of international law” are “integral part of federal law” in Germany by virtue of explicit constitutional normalization, and according to Article 25 (sentence 2) of the Basic Law they “take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory”.
Columnist Dr Gauland cares little about these constitutional and international legal boundaries of military operations – assuming the self-chosen pose of a ­Niccolo Machiavelli, and Carl von Clausewitz. Indeed, he even speaks for noncompliance by explicitly invoking the Prussian “blood and iron-prime minister” Otto von Bismarck.
Piquant is the fact that Alexander Gauland, as a former state secretary, is subject to the obligations of civil service law, and of course also to the constitutional requirements, the breach of which he publicly advocates. This is also relevant with regard to disciplinary law. In accordance with civil service laws (cf. § 47-BeamtStG) it holds for retired officials as well as former officials with pensions that they cannot operate “against the free democratic basic order within the meaning of the Basic Law”.
This includes – despite all the misinterpretations of the terminology – at least the full respect for the constitutional precept – essential of a democracy – of strict and unexceptional binding of all public authorities to “law and justice” (Article 20, paragraph 3 Basic Law). “Law and justice” include the applicable international law. A retired civil servant, who argues in public for disregard of Article 20, paragraph 3 in case of the use of military force for reasons of political expediency under the express affirmative reference to the government statement of Otto von Bismarck as Prussian minister-president in 1862 and his proclaiming “blood and iron”-maxims, which took no notice of the law and “majority decisions”, calls in substance for a permanent breach of constitutional and international law.
To me it is, frankly speaking, incomprehensible that you as the chief editors print a contribution containing such evident serious journalistic weaknesses. How does Dr Gauland actually know that “the Germans”, in fact more than 80 million people, have “a disturbed relationship to military force” and that "the Germans” stand alone “the world” with their “absolute rejection of military force”? How does Dr Gauland define “the world”? Does he speak of all people/all citizens of this earth? Does he mean the governments? Or does he just mean the majority of Western governments, which do not represent “the world”? Such slogans are obvious simplicfications beond the level of a pub debate, which ignore the complexity of real facts and intricate problemes. For an academic historian this is, to put it mildly, approaching the limits of shame and embarrassment!
The scandal of such a plea of a high-ranking (retired) civil servant for a breach of constitutional and international law refers beyond the actual instance.
It is necessary to curb a development which attempts to bring back to normal the use of the military for political purposes unfettered by current law in Germany and to make the public agree to these outrageous attempts. In Dr Gauland’s column, this is also strategically connected with an underlying moral discrediting of those as politically incompetent and unrealistic dreamers who reject the use of military force in the face of the terrible experiences of war and the inextricably associated escalation of violence especially against non-combatants (“collateral damage”), or at least insist on strict compliance with international and constitutional boundaries.
I would be grateful if you gave me the opportunity to reply to Dr Gauland’s column in your paper in an appropriate manner.

Dr Dieter Deiseroth, Judge at the Federal Administrative Court

(Translation Current Concerns)