Will Germany rise again militarily?
Live from God's peace - ensure just peace
A memorandum of the EKD Council, 2007
3.3 Limits to the law-preserving use of military force
- In today's context of international law, a legitimate authorization of military means of coercion is only conceivable as a kind of international police action according to the rules of the UN Charter, because the United Nations is the only international organization that is based on universality in terms of the validity of its norms and membership. However, international law is in an intermediate position between a pure state law, from which it originates, and a human right of global citizenship, which must remain a regulative idea. From this intermediate position - especially in the changed threat situation - there are regulatory gaps and room for interpretation with regard to the legitimacy of a law-preserving use of military force, which require ethical and legal clarification. The most controversial issues are the interpretation of the right to self-defense (and the means permitted in doing so), military intervention for humanitarian reasons to protect against serious human rights violations and the criteria for armed military missions abroad below this threshold.
3.3.1 Limits to the right of self-defense
- Since the attacks of September 11, 2001, there has been an increasing number of questions as to whether the right of self-defense, conceived as subsidiary and provisional self-defense in the UN Charter, should not be completely reinterpreted. So arranges the National Security Strategy of the USA from autumn 2002 (revised 2006) included the long-lasting "war on terrorism" in the framework of self-defense as a now independent right of sovereignty, the "preemptive strikes" (preemptive strikes), as well as preventive wars and even does not exclude the option of the first use of nuclear weapons.
- On the one hand, it is argued that the previous rules of international law are generally tailored to interstate conflicts and therefore need to be supplemented in view of the new threat posed by “rogue states” and by non-state actors. This diagnosis is problematic from the outset. Because the UN Charter prohibits not only symmetrical armed conflicts emanating from states, but also indirect violence, such as the participation of a state in the use of force by militarily organized non-state associations such as rebels, rioters, mercenaries, etc. So it is not just cross-border deployment regular armed forces, which is covered by the prohibition of violence. Violence must not emanate from any state in the world, be it by non-state actors whose activities are supported or tolerated by a state, or by a state itself. The global fight against terrorism can therefore also be largely located within the collective security regulations of the UN. The fight against terrorism is not a legitimate aim of warfare that goes beyond self-defense, but rather belongs to the category of international fight against crime. The states are obliged to take legal action against terrorist groups and persons on their territory and, last but not least, to prevent the financing of terrorist activities. In addition to appeals, it is also necessary in this context to develop effective criminal prosecution and ensure international criminal justice.
- Another argument relies on the need for anticipated security: it is claimed that the conventional strategy of deterrence linked to the law of self-defense is unsuitable for international terrorism and the states that cooperate with it, since it presupposes an opponent who is ultimately risk-averse and committed to rational calculation. The potential victim of an attack by an unpredictable enemy, however, cannot be expected to wait for evidence, especially in view of the proliferation of weapons of mass destruction and extremely short reaction times. Against this problematization of the precarious borderline between (forbidden) war of aggression and (permitted) defensive action, the following must be stated: According to the conventional ethical view and definition under international law, the first use of armed violence is only not to be regarded as unlawful aggression if it anticipates an imminent attack by the opposing side . This borderline case, in which the first use of military force can still fall under the right of self-defense, does not justify anticipatory strikes against a threat that is only vaguely apparent, nor does it justify preventive wars against threats that are distant in both space and time.
- The limits of legitimate self-defense must also be drawn from the point of view of an ethics of means. The existence of weapons of mass destruction (atomic, biological and chemical weapons), the mode of operation of which is designed for indiscriminate destruction and annihilation, raises the most serious ethical and legal problems. The development, manufacture, storage and use of biological and chemical weapons are prohibited under international law by corresponding agreements. As far as nuclear weapons are concerned, the International Court of Justice in The Hague stated in a legal opinion in 1996 that the threat and use of nuclear weapons is generally contrary to international law; the question of whether the threat and use of nuclear weapons could be permissible if the survival of a state is at stake under extreme circumstances of self-defense was left open by the court (expert opinion on the legality of the use of nuclear weapons of 8 July 1996 [ ICJ Reports, 226]).
- The ethical evaluation of nuclear weapons was controversial in German Protestantism from the start. In relation to the system of nuclear deterrence established between NATO and the Warsaw Pact after the Second World War, the majority of the West German Protestant churches in their peace ethics, however, still have “participation in the attempt to secure peace in freedom through the existence of nuclear weapons, as one still does today possible Christian action "recognized . This position, first represented in the Heidelberg Theses of 1959, was already subject to two conditions: firstly, it saw itself as limited in time until an effective nuclear disarmament process was implemented; This also seemed possible under the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Second, it was originally related to the retaliatory deterrent doctrine, which, in response to a nuclear attack, threatened an appropriate response in order to prevent a major nuclear war. As a result of the continued diversification of scenarios of controlled nuclear or nuclear-conventional warfare and corresponding further armaments and retrofits in the 1980s, the voices in the Protestant Church were louder, rejecting the spirit, logic and practice of deterring nuclear weapons as incompatible with the Christian faith . Even those who see the existence and availability of nuclear weapons not as a direct belief, but "only" as a problem affecting practical reason, have to state today: Despite the unlimited extension of the NPT in 1995, the non-proliferation regulations have now been largely eroded. Even a nuclear threat cannot prevent the production and storage of weapons of mass destruction in risk countries. During the Cold War it was assumed that the risk of a nuclear war breaking out was limited by mutual rational risk assessment. In contrast, in the current situation, deterrence cannot count on an opponent who is inclined to rational calculation from the outset. Against this background, the reasons for the criticism of the deterrent strategy have gained significantly in importance. (For the consequences of this in terms of peace ethics and security policy, see paragraphs 162-164 below).
3.3.2 Limits to the collective responsibility to protect against domestic threats
- Since the end of the East-West conflict, the question of whether it can be ethically and legally legitimate to protect the population of another state from serious injustice by means of military coercive force, in addition to securing peace between states, has become more and more topical ( so-called »humanitarian intervention«). The serious injustice under consideration here means the systematic and massive violation of human rights (and the associated threat to peace). However, no hasty conclusions for the justification of military interventions should be drawn from the human rights ethic. This is true because the idea of human rights does have a universal claim to validity, but they are still interpreted and understood differently. Long-term intercultural communication processes are required in order to fulfill their claim to general validity. Such understanding is a civil and civil society task for which interreligious and intercultural dialogue is of great importance.
- The fact that respect for state sovereignty should take a back seat to the protection of human rights is, in principle, a correct approach; but it is questionable to what extent he can justify interventions with armed violence. The traditional prohibition of intervention is based on the elementary peace function which is due to respect for the legal equality of states and their territorial integrity; But it also protects the autonomy of the state people in shaping their political relationships. These should be democratic and human rights everywhere, but precisely through the autonomy, the self-legislation of the peoples. The recognition and guarantee of civil, political and social human rights cannot bypass state-organized polities, rather it must in them, With them and by they are realized. Even relapses into despotism do not as such justify armed intervention from outside; it must primarily remain a matter for the members of a community themselves to restore their political freedoms or to achieve them in a changed political order. Even in the case of civil war-like conflicts, external military intervention must not replace internal conflict, as long as the conflicting parties are able to help themselves and strive for a political constitution. An exception to the principle of military non-intervention can only be considered if a state does not even fulfill its primary function (namely that of protecting the life of the population and maintaining a minimum legal status), or if the conflicting parties in a civil war are guided by maxims let that exclude written legal relationships altogether.
- Reason for permission Military interventions for humanitarian reasons can only be topical, most serious acts of injustice that eliminate the minimal peace function of a political order altogether and deprive the population of the self-determination of the population by threatening entire groups of a population in life and limb and abandoning them to annihilation. A state in which the physical existence of its citizens is acutely threatened or in which large parts of the population are collectively disenfranchised has forfeited the right to respect for its territorial and political integrity. In the case of crimes against humanity such as the onset of genocide, mass murder of minorities, massacres of ethnic groups and ethnic displacement, collective torture and slavery, military intervention can be justified if the other criteria of law-preserving use of force (see section 3.2 above) are met.
- In particular, one is required Authorization by the world organization, i.e. according to the rules of the collective security system of the UN or a regional organization of collective security. Apart from the fact that this is the only way to preserve the rule of law against the "law of the strongest", the collective decision-making process offers the chance of a fair weighing of all factual aspects. In addition to the authorization, the monitoring of the measures, their assessment with regard to the defined goal and the determination of their duration must also be carried out by the UN. Whether an intervention is legitimate and whether it complies with the norms of international law must be open to review by the International Court of Justice and other international law bodies.
- Compared to a not mandated by the UN Security Council, but extralegal as Emergency aid Justified intervention by individual states or alliances of states is the greatest concern. The fact of domestic emergency aid is positively recognized in national legal systems. This is possible because domestic law is an order with an established monopoly on the use of force and a judicature that is able to prevent excessive and abusive use of the right to emergency aid. However, this is not the case in international legal relationships. The granting of a right to so-called "humanitarian intervention" on the part of individual states would entail the risk of initiating a return to the free right to wage war. Should the legitimate collective security mechanism fail by blocking the UN Security Council (as in 1998 with a view to Kosovo, where the problem of the tension between law and morality arose), military emergency aid measures should at least be strictly examined to determine whether they would have the following effect Strengthening or weakening the war prohibition principle of the UN Charter and the transnational enforcement of law by the world organization.
- The intention An armed intervention must be clearly related to the goal of protecting the victims from life-threatening grave injustice, securing the foundations of a state's existence and restoring the conditions for political self-determination of the local population. With regard to the question of how this political self-determination is perceived and shaped, the intervention must remain impartial.
- On the basis of a mandate from the UN, the international community should be put in a position to prevent genocide and crimes against humanity across borders - possibly also through the use of military force. At the same time, however, it is also true here that the use of military force - as in all other cases of the use of law-preserving force - only as ultimate means may be considered. Especially when, on the basis of the Convention on the Prevention and Punishment of Genocide (Genocide Convention) of 1948, the effective prevention of genocide is one of the obligations of the community of states, it is urgently necessary to implement national and international prevention mechanisms in the sense of a To establish influence in advance. These include: early warning measures and their networking, the imposition of economic sanctions, the establishment of monitoring bodies to implement the genocide convention analogous to the monitoring of human rights treaties. However, there is a need to act in the event of genocide or other serious human rights violations when national courts fail. Just as the model of just peace requires law to be realized, so law needs the instruments of law-preserving force in certain, clearly delimitable contexts.
3.3.3 Limits to international armed peace missions
- Operations of national armed forces for "international crisis management", which include the threat or use of military coercion, but which cannot be assigned to the national right of self-defense or to the responsibility of the international community for the protection of threatened population groups against excessive violence - here called international armed peace missions - have recently been carried out increased greatly. The growing willingness to intervene in the military is now accompanied by clear skepticism about the possibilities of using military means to create peace.
- The experience gained so far, as well as the principles of peace and legal ethics outlined, speak in favor of external armed intervention as ultimate means cannot be completely ruled out, but the military component should be strictly limited to the function of securing the external framework conditions for an independent political peace process on site for a limited period of time. Military measures must remain part of a coherent peace policy under the primacy of civilians.
- To the legitimate Objectives Firstly (in the sense of conflict prevention) the performance of police surveillance tasks or the containment of severe violent conflicts within society through an international military presence, secondly (in the sense of peacebuilding after armed conflicts) the guarantee of an already negotiated ceasefire, the safeguarding of a peace agreement, the demobilization of armed forces, the creation of a safe environment for self-sustaining civil, political, economic and cultural reconstruction.
- The participation of those affected on site must be ensured on a regular basis (local ownership). As far as possible, this should include the consent of the conflicting parties to external military intervention. In situations in which this consensus cannot be reached and / or a functioning statehood has collapsed, the question must always be asked as a priority which local actors, political forces and social groups can be considered as carriers of a legitimate, self-determined state formation. Long-lasting quasi-protectorates based on coercive violence do not serve this goal.
- Military intervention is also required below the threshold of combat missions Authorization and legitimation in the form of a clear international and constitutional basis. National and alliance political interests must not take the place of the primary responsibility of the UN and its regional agreements.
- A reasoned chance of success exists for armed peace missions only if they are part of an overall peace and security policy. This requires, among other things, a precise definition of the assignment, the availability of coordinated capabilities, careful coordination of the various national and international, military and civil actors among each other, a realistic assessment of the time horizon necessary for political, economic and cultural consolidation (including the definition of » Exit «criteria). Since the financial resources required for armed peace missions may limit economic development aid, the Proportionality military means should also be examined under the aspect of costs. Furthermore, the personal burdens and risks for the soldiers and their relatives must remain accountable.
- Armed peace missions abroad should - analogous to the practice of development policy - always with an accompanying and a subsequent one Evaluation be connected by independent entities.
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