Germany's defense minister reaffirmed that Berlin is basically ready to participate in military aggressions, such as the recent western attack on Syria. "We could also fulfill the contribution from the air that Great Britain had made in this case," said Ursula von der Leyen, but "we weren't asked this time." She made this declaration in full knowledge of the fact that the Reference and Research Service of the German Bundestag - like numerous other legal experts - had classified that attack a clear violation of international law. According to the expert assessment of the parliamentary jurists, it was a "retaliation" patterned after military interventions preceding the First World War. Legality was not the justification for those attacks, but rather a subjective political moral legitimation. Claiming "legitimacy," other countries may also decide to engage in military aggressions, warn experts. Admitting such a change of paradigm would cause "more, rather than less human suffering."

In Principle Prohibited

Last Friday, an expert assessment examining whether the April 14 air strikes carried out by the United States, UK and France against Syria, had violated international law became known. The assessment had been made by the Reference and Research Service of the German Bundestag. The authors concluded that judicially, the attacks were a "retaliation" - a "retaliatory" military response to activities of another state - in this case, Syria's use, or alleged use, of poison gas. Retaliatory measures are "prohibited in principle," the document notes,[1] This also applies "if a government had violated a major principle of international law." Instead of retaliation, international law, as it has developed since the Second World War, provides clear "legal mechanisms" to sanction the violation of norms whether "within the framework of the Chemical Weapons Convention (CWC) or by International Criminal Law." This also applies to the German government's objection that the UN Security Council cannot act, in regards to Syria, because Russia is rejecting the motions being advanced by the western powers. The fact that the aggressors had not even waited for the investigation by the Organization for the Prohibition of Chemical Weapons (OPCW) at the scene of the alleged or actual use of poison gas before bombing, is "all the more" important for the assessment of the legality of the attack.

Humanitarian Veil

The authors of the expert assessment also note that in the general discussion about the April 14 military aggression, and in the justification the three aggressor states and their supporters, use for the attack, "questions of international legality fade into the background" [2] and is replaced by insistence on a "political moral legitimacy" for the air strikes.[3] This had already been the justification used in 1999 for going to war against Yugoslavia, the document states. Gerhard Schröder (SPD), German Chancellor at the time, later publicly acknowledged that NATO's attacks - with Bundeswehr participation - had violated international law.[4] However, "legality does not automatically evolve" from a genuine or alleged "legitimation for of state's intervention," the assessment notes. From the standpoint of international law, this would more conform to a classical case of "armed retaliation," even though wrapped in a "humanitarian veil." Before World War I - and occasionally also between the World Wars - this sort of retaliation had been quite common. However, following the devastation of World War II, it was banned under international law.

Carte Blanche for Aggression

An ultimate relapse into the era of retaliation would be fateful, also because, in the absence of universally recognized rights, any country could claim the political moral "legitimacy" for itself, to pursue its own interests. This was recently pointed out by the jurist Andreas Kulick at the Eberhard Karls University in Tubingen. The price for claiming this "legitimacy," is that in the future other countries can lay claim to this "legitimacy" to pursue their objectives, Kulick warns. Recently, Russia has used this approach.[5] In fact, Crimea's integration into Russia can be seen as modeled after the West's secession of Kosovo, albeit, unlike NATO, Moscow did not wage an illegal bombing campaign, causing innumerable casualties. It must be assumed that if the principle of legality is permanently replaced by a nebulous political moral "legitimacy," sooner or later "every state will feel justified" in going to war against an adversary, as long as it can loudly accuse "its adversary of being responsible for a human tragedy," predicted Kulick. The possible consequence of such carte blanche to use force against an opponent is not less, but more human suffering.[6]

Following the West's Example

Recent declarations about Iran demonstrate how the situation could escalate. The Trump administration has put Iran under heavy pressure with its announcement that it intends to abandon the nuclear treaty, even though Tehran has been strictly abiding by its stipulations. Now, the Iranian capital has warned that it is holding all options open. Last week, an editor in chief of an Iranian periodical, deemed to be among the hardliner critics of the West, was quoted saying "every country - including Iran - can attack another country the way America attacked Syria, without an international mandate.[7] That would be a violation of international law. However, it can be assumed that the Iranian government can find the means and the methods to justify such an attack, claiming an alleged legitimacy from the perspective of its political morals - following the West's example.

"We Can Do that Also"

The statements made by German Defense Minister, Ursula von der Leyen, over the weekend, are confirmation that the German government is prepared to go down the slippery slope leading from traditional international law to justifying military aggression with an alleged legitimacy. Already in the immediate aftermath of the April 14 bombing of Syria, Chancellor Angela Merkel claimed that that illegal aggression was "necessary and appropriate."[8] Other German government officials have expressed similar opinions, including Germany's Foreign Minister Heiko Maas (SPD). Defense Minister, Ursula von der Leyen - knowing that the German parliament's legal experts have determined that those attacks were illegal - has now announced that there is nothing to rule out German participation in such attacks. "We could also fulfill the contribution from the air that Great Britain had made in this case." However, Berlin had "not been asked this time."[9]

"No Longer International Law as we Know It"

The authors of the Bundestag's expert assessment are warning against entering an era of retaliation. "International law attributes great importance to states' legal opinions - which may even influence customary law," they write. As a consequence, they could, in principle. "transform existing international law." In the future, it cannot be ruled out that "cases with justifications of 'humanitarian retaliation'" may be included into international law, if the western powers apply it often enough.[10] Helmut Philipp Aust, Professor for Public Law at the Free University in Berlin, recently made reference to this fact. The German government is free to arrive at "the legal opinion," he wrote last week, "that the current form of international law's prohibition of the use of force should not be upheld." "In that case, it should clearly articulate and publish its legal position, whether the doctrine of humanitarian intervention or the relapse to armed retaliation should predominate."[11] The jurist, concluded, "it would ... no longer be the international law as we know it."

[1] Völkerrechtliche Implikationen des amerikanisch-britisch-französischen Militärschlags vom 14. April 2018 gegen Chemiewaffeneinrichtungen in Syrien. Deutscher Bundestag, Wissenschaftliche Dienste. WD 2 - 3000 - 048/18. Auszüge aus dem Gutachten: Legalität und Legitimität.

[2] Great Britain had attempted to justify the bombing of Syrian installations under international law. However, according to the experts of the Bundestag, the reasoning is unsustainable.

[3] Völkerrechtliche Implikationen des amerikanisch-britisch-französischen Militärschlags vom 14. April 2018 gegen Chemiewaffeneinrichtungen in Syrien. Deutscher Bundestag, Wissenschaftliche Dienste. WD 2 - 3000 - 048/18. Auszüge aus dem Gutachten: Legalität und Legitimität.

[4] See also A President's Policy.

[5], [6] Andreas Kulick: Syria and the Humanitarian Reprisal - President Trump’s Poisonous Gift to International Law? verfassungsblog.de 14.04.2018.

[7] Rainer Hermann: Iran bereitet sich auf den Ernstfall vor. Frankfurter Allgemeine Zeitung 21.04.2018.

[8] See also Auf dem Weg in den Weltkrieg (II).

[9] "Anbiedern oder Nachgiebigkeit macht Putin nicht freundlicher". spiegel.de 22.04.2018.

[10] Völkerrechtliche Implikationen des amerikanisch-britisch-französischen Militärschlags vom 14. April 2018 gegen Chemiewaffeneinrichtungen in Syrien. Deutscher Bundestag, Wissenschaftliche Dienste. WD 2 - 3000 - 048/18. Auszüge aus dem Gutachten: Legalität und Legitimität.

[11] Helmut Philipp Aust: Völkerrechtswidrigkeit benennen: Warum die Bundesregierung ihre Verbündeten für den Syrien-Luftangriff kritisieren sollte. verfassungsblog.de 16.04.2018.