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America's Preventive War as Ultimate Risk

by Reinhard Merkel Sunday, Mar. 20, 2005 at 4:12 PM

Never before has a democratic state threatened so openly to repudiate the basic norm of all law, the prohibition of violence.. Apart from self-defense, no war is legal.. The American government does not feel bound to the fundamental norms of law and ethics.


Preventive War and the Logic of Imperial Power Undermine the Legal Consciousness of Humanity

By Reinhard Merkel

[This article published in: DIE ZEIT 12/2003 is translated from the German on the World Wide Web, Reinhard Merkel is a professor of criminal law and legal philosophy at the University of Hamburg.]

If all the signs are not deceiving, we will be forced to witness an enormous historical change. People sense this in Germany and everywhere. However no one can judge the range of the shadows that this process will cast in the future of the world, least of all the government in Washington. Never before has a democratic state threatened so openly to repudiate the basic norm of all law, the prohibition of violence. Since the actor is the guaranteeing power of global order, this may have consequences far beyond the occasion and end of the imminent war.

The hopelessness of this diagnosis is not changed by the fact that it occurs at the end of a long series of hard questions. Each of these questions was and is contested. A conclusive argument legitimizing this war is impossible on the basis of accepted international law and its principles. The official government explanations in London and Washington emphasize the opposite with deceptions, tricks and other unreasonable demands in morality and understanding.

The legal situation is one of illegitimacy. Even an approval of the Security Council cannot change anything in this illegitimacy. The credibility with which the opposite is accepted by politicians and international jurists in Germany is strange. This acceptance proves to be bizarre before the basic principles of the law. How could the formal resolution of 15 states from the normative nothingness conjure the material justification for a war that otherwise would be illegitimate according to prevailing law? What an incredible Deus ex Machina: permission for killing many thousands, devastatngf whole countries and creating endless human suffering – only from an accidental convergence of the subjective arbitrariness of a handful of governments? Should this be given the dignity of law? Certainly not.

The Security Council has an authority for warfare that goes beyond the right of self-defense of individual states. However it only has this authority in the scope of norms establishing and limiting its own competence: Chapter VII of the UN Charter. The Security Council may avert acute threats to world peace. An abstract risky precaution with belligerent means is outside its legal range. Apart from self-defense, no war is legal if the Security Council has not approved. However it does not follow that every war approved by the Council would be legal… Nothing suggests that Iraq is a present threat to any other country.

None of these considerations will irritate the resolutions of the American government. It has begun assembling the facades of a legality whose objective “irrelevance” for the plans of the world power was clear months ago. Doubts against the boundlessness of its own exceptionalism, that innocent megalomania that easily derives a singular right from the singular position of its means of force are striking. The American government does not feel bound to the fundamental norms of law and political ethics.

Now we face the core problem of a post-war discussion. As always in such situations, reporters follow the imperial actors on the historical stage. Neo-realists of political science appear who have read Clausewitz and found the key to understanding present realities from him. They explain to us the “action logic of empires”. What about law and ethics? – “Empires,” Herfried Munkler writes in Frankfurter Rundschau, follow their “survival instinct” and nothing else. This masquerade may be revealed to them from case to case with legal stage-props. Its application only follows the norm-less maxims of power. The question whether this imperial logic is described, recommended or justified to us is unclear.

The empire itself seems to raise a similar question. If it refuses, it will certainly be forced to do this in the near future. Even before the first bombs on Baghdad, the American government opened up the front in another conflict. The US can neither win nor lose the military conflict. This conflict involves the fundamental principles of law. These principles are the material that the Faustian greed for knowledge has sought. These principles hold together the world of states and people. The “action logic of empires” may describe itself as a fact as Munkler suggested. As a political directive with all its “realism,” it is an undertaking of gigantic irrationality and lawlessness.

The war that America is not beginning and will wage and end with destructive fury in a few days will be more than a breach of international law. It will be a crime against international law. The killing of tens of thousands of civilians that its authors consciously accept makes this crime horrific. International law does not know any individual criminality for the authors of an offensive war or does not know this any more. International law knew this individual criminality in the 1946 Nuremberg war crimes trial.

Fifty years later the US violates Article 5, Paragraph 1 of the International Criminal Court statute. Offensive war is also called an “international crime” in Article 19 of the drafted “law of state responsibility” on which the UN international law commission has worked for a long time. There is no provision for punishment. Whole states can be punished politically and metaphorically but not legally. This does not change anything in the global description of the event. Offensive war is a crime according to legal principles.

In truth, this crime violates every state of the world and every citizen. It transgresses the original norm of all law, the prohibition of violence. This is not an arbitrary norm of international law but its source, the condition of its possibility as law. The argument of some international law jurists about the present “emergence” of a new norm allowing preventive- or offensive war is testimony to a blindness in legal theory. Every war of aggression is an attack on the foundation of every conceivable international order of law. The basic norm of the world is threatened when a state wages war out of a hegemony position as America does today.

In view of the imminent confiscation of decades of international law development, quoting one of the great theoreticians from the 19th century may be helpful. 150 years ago Johann Caspar Bluntschli wrote: “International law grows in substance and authority as the community consciousness of humanity grows in clarity and energy. International law emerges from the legal consciousness of humanity.” The opposite, an internalization of the maxims of injustice as among the Washington adventurers, arises out of its destruction. This destruction is imminent today. No state and no military power of the world can compel such a legal consciousness with means of force after previously destroying it.

This destruction is not inevitable. A brighter long-term hope can be added to the dark short-term prognosis. There is something that is stronger than the American government today – America. In the quantity and quality of its elites, this country is too strong, too vital, too intelligent and too democratic to be forced by an intellectually mediocre administration into a frontal attack on the rest of the world. Some time after this war, this country will be horrified at the discrepancy between the oversize of its means of force and the undersize or tunnel vision of its present rulers. Its government will be forced to correct its course or be voted out of office. Until then, the moral and political command for Europe is to be in solidarity with the better America that for a century promoted and developed that gentle civilizer of nations, “international law,” like no other state. America and the rest of the world do not deserve a government that now inverts this development with the malevolent hand of destruction.

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