[Translation of broadcast by Gegenstandpunkt-Verlags on Radio Lora, April 28, 2003]
One of the weightiest objections against the Iraq war by its opponents said: the war against Iraq is against international law. Enumerating the victims, exposing the USA’s real or alleged reasons for this war, showing all the possible catastrophic consequences of the war – for many war opponents, these are insufficient reasons for their protest. They felt properly justified only by their main reproach to Washington: this war violates international law because the UN did not sanction it.
With the appeal to international law, war opponents make some fundamental errors:
1. Someone who thinks he must justify his protest by reference to a breach of law by the USA does not take his objection to the victimization of war seriously. That a few thousand people are dead or mutilated is not then the objection to the war. The victims only become a proper reproach against the USA because they lose their lives in an illegitimate war. Someone who states the USA did not obtain authorization for the war according to the statutes of the UN and sees that as the real offense – what argument does he still have against a war, with all its victims, if it is statutorily approved?
2. Questions about the USA's reasons for the war and the goals of the war become inconsequential when war opponents excite themselves mainly over the illegitimacy of the war. Is the USA concerned about the “liberation of the Iraqi people from tyranny” or “only oil”? Wherein lies the “world domination” that Bush wants to come closer to with this war? In clarifying these questions, insights could be arrived at about what the past world order stood for, what disturbs the USA about it so that it wants to replace it by a new one, why the NATO allies and the European Union divide themselves over it and why the states which refuse to consecrate this war by international law with a Security Council resolution want to put in a word about the postwar order. But these really are of no interest if the accusations of the peace movement always culminate in the reproach: this war is a violation of international law.
3. International law is therefore a popular objection by war opponents because they succumb to the mistake that international law could abolish military force. “The prohibition of the use of force, which is at the center of the UN Charter, is the most important imperative of recent history,” writes Heribert Prantl, an editor of the German newspaper Süddeutschen Zeitung (March 29, 2003). This faith in the prohibition of force overlooks that a force prohibition does not prevent acts of violence:
Even inside states, where the citizens are forbidden the use of violence, violence is not absent when the state as the monopoly on violence takes it over, so that all private violence is prosecuted as illegitimate violence. As is well known, the law’s prohibition does not prevent acts of violence but places them under punishment, thus anticipates them being carried out and therefore has a whole judiciary and enforcement apparatus that judges which acts of violence violate the law and are therefore punished. In this law standing above all citizens and their clashes, the state determines which violations are legally forbidden, whereby vice versa all others are legally permitted.
This is no different with international law. On the one hand, the UN Charter outlaws war, but by specifying on the other hand which wars do not fall under this proscription. It expressly permits the use of war for self-defense or the defense of allies. If all states would only defend themselves, there would be no more aggressors, thus also no wars. The exceptions in international law assume – like the internal state force monopoly – that wars will not disappear from the world of states with the prohibition on violence, but that states will continue their foreign policy again and again by “other means,” in addition to arming themselves in the middle of peacetime, even making alliances with which they acquire for themselves the right – expressly assured by the UN Charter – to “defend themselves” far outside their borders. What international law carries out in the form of the UN Charter is the same as inside bourgeois states – not the abolition of violence, but the subjection of all violence under legal principles, thus to the distinction between legal and illegal acts of violence. The difference to domestic national affairs is that there is no authority over all the states in the world of states that, like the state above its citizens, judges their conflicts of interest separate from the legal standard for force. Over the question as to what is permitted as a defensive war and what is forbidden as aggression, the same states whose interests are affected by the war sit as the court: either directly as war parties and/or their allies or as states of middle or larger caliber which unfold their power and whose interests therefore are also world-wide. No impartial third power judges acts of violence by states as to whether they comply with a superior law, thus provide a permissible defense, or contradict it, thus are forbidden as a war of aggression.
The “international community of states” does not decree the abolition of war in the UN Charter, but a procedure for evaluating their violent clashes by the rest of the state world and/or their committee on the Security Council. If one state wants to force another state against its will, but observes behavior in compliance with international law (from territorial disputes up to the question whether and/or which weapons of mass destruction they may possess), then it may not simply attack. First, it must define its demand as a case of defense. The contentious territory always already belongs to it (or belonged to its predecessors in title); the population living on it longs for nothing but liberation from incorrect rule, under which it is ruled by an aggressor; or the deplored state supplied itself with weapons of mass destruction that are intended for nothing other than an attack on the aggrieved power or its allies. Second, the state that wants to wage a war must win a majority of the Security Council for its demand (and at least get the veto powers to abstain); then its war is a legitimate cause and it drops its hail of bombs under international law.
The cause goes, according to UN statutes, even in reverse: a state that has not received sanction sets the facts and afterwards strives for appreciation of its cause as defensive. The aggressor gets the agreement of the Security Council, and the war is not prevented as the lovers of international law expect, but is legitimized as a defensive war. If the UN refuses permission and the state placing its demand nevertheless goes ahead with the defense of its cause, the outcome of the cause depends on the power it or its ally has, and what interests the remaining states have either for the prevention of the war or its execution, regardless of whether it is legitimized or not. No wonder that in over 50 years of prohibition of force by the UN Charter, an enormous number of wars has taken place – few of which the UN authorized. And whether there is less or more war without the UN hangs on the fictitious comparison criteria of the apostles of international law, who can imagine still more war even without the UN Charter than is waged with it. We keep out of this debate by referring to what the consequence would be of a Security Council resolution which arranges to stop a war from “breaking out” or to stop an ongoing war: a war – only one mandated by the highest organ of the UN, but more lawful than one can imagine.
4. If the international law prohibiting war in the UN Charter did not prevent previous wars, and even legitimized at least two (the Korean war and the first Iraq war), wherein now lies the great epochal turn in international law which the USA causes with its new doctrine of “preemptive strikes” and its “case of prevention” in Iraq? First of all, it should be noted that even with their definition of the Iraq war as preventive, the “only remaining superpower” maintains that this war is completely in accord with the UN Charter as self-defense – stopping the threat of attack before it is too late. They justify what they want to change in international law as an updating of international law, an adaptation to the changed world situation since September 11, 2001.
Opponents of the Iraq war regard this – again in the exemplary words of Heribert Prantl – as a pretext: “Now the USA tries to convince the world that power and right are identical … the USA wants to tear up the old book and write a new one with the title: might makes right.”
Anyone who complains that the announcement of the New World Order by the USA means that in the future might makes right should admit what the establishment of the UN after 1945 was really about. The state coalition that prevailed at the end of World War 2 over the losing powers Germany and Japan established with its victorious power – and with nothing else – the international law of the UN. That the power that set the law was American does not disturb the lovers of international law, because they consider the law set back then to be good. For them, what is new and despicable is not the fact that today, in contrast to the end of the second world war, might makes right, but that today the USA repudiates a version of international law that they established with their power. They express their refusal that only one power may set international law according to its discretion as if that is the only way “power and law become identical,” because they separate the law from the power that establishes it, and welcome that there is occasionally a power which is so good as to set laws which they imagine are really barriers to any future wars.