[Translation of broadcast by Gegenstandpunkt-Verlags on Radio Lora (April 28, 2003)]
One of the weightiest objections against the Iraq war by its opponents read: 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 -- all these are insufficient reasons for many war opponents for their protest. They felt correctly 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 victims 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 correct reproach against the USA because they lost their lives in an illegitimate war. Someone who states the USA did not obtain permission for the war according to the statutes of the UN and therein lies the real offense – what does he still have for an argument against a war with all its victims if it is statutorily approved?
2. The question about the reason for the war and about the war goals of the USA becomes inconsequential if war opponents excite themselves mainly over the illegitimacy of the war. Whether the USA is concerned about the “liberation of the Iraqi people from tyranny” or “only the oil”; wherein lies the “world domination” which 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 disturbed the USA about it so that they want to replace it by a new one, why the NATO allies and the European Union divided themselves over it and why the states which refused 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 only an offence against 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 force prohibition, which is located in the center of the UN Charter, is the most important imperative of recent history”, writes Heribert Prantl, an editor of Süddeutschen Zeitung (03/29/2003). This faith in the prohibition of force overlooks that a force prohibition does not prevent acts of violence:
Also inside of states, where the citizens are forbidden the use of force, force is not absent if the state as force monopoly takes it over, so that all private force is prosecuted as illegitimate force. 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 violate the law and therefore are 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, however 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 -- like the internal state force monopoly -- assumes with the force prohibition that wars will not disappear from the life of the state world, but that they will continue their foreign policy again and again by “other means,” in addition arm themselves in the middle of peacetime, even make 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 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 states whose interests are affected by the war themselves 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, 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 a state wants to force another against its will, but observes behavior in agreement 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 move the veto powers to abstain); then its war is a legitimate cause and it drops its hail of bombs with international law. - The cause goes UN-statutorily even in reverse: A state without sanction sets facts and later 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 what 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 permitted. And whether there was less or more war without the UN hangs on the fictitious comparison criteria of the apostles of international law, which even without the UN Charter can imagine still more war than was led with it. We keep out of this controversy by referring to the consequence of a Security Council resolution which arranges to stop a war from “breaking out” or to cancel the result of a running war: a war -- only mandated by the highest organ of the UN, but more lawful than one can imagine.
4. If the international law war prohibition of the UN Charter did not prevent previous wars, even still at least two additional (Korea war and 1. Iraq war legitimized), wherein lies now the large international law epoch turn, which the USA caused with their new doctrine of “preemptive strikes” and its first “case of prevention” in Iraq? First of all, it should be noted that even with their definition of the Iraq war as preventative, the “only remaining superpower” maintains that this war is completely in accordance with the UN Charter as self-defense -- even a that once threatening attack the impossible, before it is too late. What they want to change in international law with their doctrine is justified as an update of international law, as an adjustment 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 try to in-blue the world that power and right are identical. … It concerns that the USA want to tear the old book up and write a new 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 at once what the establishment of the UN after 1945 actually was. The state coalition, whose power prevailed at the end of this war over that of the war losers Germany and Japan, had with its victorious power -- and with nothing else -- after World War 2 set the UN’s international law. That the responsible power that set the law was American disturbs international law lovers not at all because they find the law set at that time to be good. New and despicable for them is also not the fact that today, in contrast to the end of the second world war, might makes right, but that the USA repudiates a version of international law that they set today with their power. They express their refusal, which only one power sets as international according to its discretion, as if only thereby “power and law became identical”, because they separate the law from the power which sets it, and welcome that there is occasionally a power which is so good as to set laws which they imagine is really a barrier to every future power.