On the prohibition of the war of aggression
General ban on war of aggression
by Ruprecht Großmann
[This article published on Aug 28, 2020 is translated from the German on the Internet, https://gewerkschaftsforum.de/zum-verbot-des-angriffskrieges/
Article 26 paragraph ] of the Basic Law (GG): Acts which are suitable and are carried out with the intention to disturb the peaceful coexistence of the peoples, in particular to prepare the conduct of a war of aggression, are unconstitutional. They are to be made punishable.
I. Guidelines of the Basic Law
The provisions dealing with wars and their prevention are among the most explosive in the constitutions and laws of the states. This is mainly due to the fact that they deal with the relationship of states to each other and against the background of the respective history. This is also the case with Art. 26 (I) of the Basic Law (GG). In simple terms, it can be explained by past experience and the objectives of international law; three legislative roots can be identified. The GG forms the democratic antithesis to the dictatorial power system of National Socialism. According to its preamble and the individual articles (see, for example, I, para. 2, 4, para. 3, 8, para. 1, 24, para. 2, 26), it is a commitment to the peaceful coexistence of peoples. Third, it is based on the supremacy of law in relation to power. The triad democracy - peace - right determines the GG as a whole and art 26 paragraph I in detail.
II. standards of the Basic Law for international relations
a. Prohibition of war of aggression (Article 26 (1) sentence 1 GG)
There are now a large number of publications on the war of aggression in general and its special regulation in Article 26 (I) of the Basic Law. I therefore refer to the attached list of literature (this too is only a selection) and here primarily to the work of Norman Paech and Gerhard Stuby, "Völkerrecht und Machtpolitik in den internationalen Beziehungen" (International Law and Power Politics in International Relations), which was published in an updated edition in 2013. In over 1000 pages, the authors deal thoroughly and critically with the individual international legal facts, norms and decisions in Germany and abroad, in their historical context and in relation to current politics. In particular, I would like to mention Wolfgang Beutin's extensive research work, e.g. on Kant and other literature. Until the beginning of the last century there were no binding rules on war. Rulers with power and means carried out campaigns of conquest which brought great suffering to people, but which often allowed those in power to go down in history with glory. For example, the Great Elector of Brandenburg was one of the first colonial rulers with the settlement of Friedrichsburg on the West African coast, even though he issued the Edict of Potsdam for the Huguenot refugees in 1685. Frederick the Great saw to the introduction of the General Land Law for the Prussian States (which is still valid in some SS today), but justified his fame with the Silesian Wars, wars of aggression par excellence. War and peace were often close to each other, in many countries even today. In the literature, the occupation with wars of aggression, including approaches under international law, can already be observed in earlier centuries. Kant saw the cause of wars of aggression already in the establishment of standing armies, which should therefore "cease completely with time" (Of Eternal Peace, l. Section No. 3) and demanded under NE 5 of this section: "No state should interfere violently in the constitution and government of another state".
A definition of war of aggression is missing in German law. In 1974, the General Assembly of the United Nations (UN) agreed in Resolution 3314 that this meant military aggression in the form of a first strike. According to Art. 3 of the resolution, the individual forms are Invasion and annexation, bombing and use of weapons against foreign territory, blockade of ports and coasts, attacks against foreign armed forces, the merchant or air fleet, use of armed forces stationed abroad in contravention of contractual agreements, surrender of one's own territory for acts of aggression against a third state, dispatch of armed gangs, free-riders, mercenaries, etc. to foreign territory. According to art. 5 of the resolution, war of aggression is a crime against world peace with full criminal and reparation responsibility.
b. Restriction of the use of the armed forces to defense (Article 87a paragraph 2 GG)
The Basic Law does not stop at banning aggressive warfare, but also regulates the consequences for the institutions affected by it. For example, according to Article 87a (2) of the Basic Law, the federal armed forces may only be used for defense, apart from the exceptions listed in the Basic Law. These cases concern the deployment for the protection of civilian objects, for the support of police measures, e.g. against armed militant insurgents, in the case of natural disasters and particularly serious accidents, i.e. all for measures within the federal territory (see Art. 87a para. 3 and 4 and Art. 35 para. 2 sentence 2 and para. 3 sentence l). The measures to be taken in case of defense are regulated in Articles 115a to 115 1 GG. Alliances with other states for common defense can be entered into according to Article 59 (2) sentence I GG. The use for defense is always only permitted as defense against a military attack, not for the pursuit, enforcement and protection of economic or political interests.
c. Classification of the Federation in systems of mutual collective security (Article 24 (2) of the Basic Law)
A regulation completely different from Art. 87a (2) GG applies Art. 24 (2) GG. It reads: "The Federation may, for the purpose of maintaining peace, submit to a system of mutual collective security; in so doing, it shall agree to the limitations of its sovereign rights which will establish and secure a peaceful and lasting order in Europe and among the peoples of the world.
This does not refer to the armed forces of the Confederation and their deployment in case of defense, but to an overarching system of collective security. It is not already formed by a majority of states that are committed to mutual support through an alliance system and, within this framework, to securing peace. What is needed is rather the possibility of participation by all states and the primary obligation to create and maintain peace with and within all states. This requires certain agreed conflict regulation mechanisms, which are usually lacking in an alliance system. The collective security system primarily addressed here is the United Nations (UN) system of international law. It is not limited to the case of defense, but aims at mutual security. Security should be common, i.e. not limited to alliances and military alliances as they were common in earlier centuries. Against the background of the experiences from the last wars with numerous peoples and states, there is a need for security not only for one's own state but for all potential adversaries. A legal bond that encompasses all states collectively can strengthen the degree of security accordingly.
III. regulations of international law
a. Briand-Kellogg Pact
The first international legal agreement directed against war is the Treaty on the Outlawing of War, concluded and signed in Paris on August 27, 1928, by France, the United Kingdom, the United States, the German Reich, Japan, India, Italy, Poland, the Czechoslovak Republic and Belgium, named after the French and American negotiators (the German Reich was represented by Foreign Minister Stresemann, ratified by the Reich Law of February 9, 1929). "The High Contracting Parties solemnly declared on behalf of their peoples" that they condemned war as a means of resolving international disputes and renounced it as a tool of national policy in their mutual relations. They also agreed that the settlement and resolution of all disputes or conflicts should never be sought other than by peaceful means. Thus, wars of aggression were prohibited for the first time, even if not all acts of violence were covered and sanctions were lacking. The pact has never been challenged or rescinded, so it continues to exist. Its legal effects have now been overtaken by the far more detailed UN Charter.
b. UN Charter
On June 26, 1945, 50 signatory states as members of the UN agreed in San Francisco on the UN Charter, still the most important international legal regulation today. It contains in Art. 2 No. 3 the obligation that all members of the UN must settle their international disputes by peaceful means in such a way that world peace, international security and justice are not endangered. According to Art. 2 No. 4, all members must refrain in their international relations from any threat or use of force directed against the territorial integrity or political independence of a state or otherwise incompatible with the objectives of the UN. The desired system of collective security is based on this strict prohibition of violence on the one hand, and on Article 24, paragraph 1, according to which the members of the UN transfer the primary responsibility for maintaining international peace and security to the Security Council. It consists of 15 members of the UN, with China, France, the United Kingdom of Great Britain with Northern Ireland, Russia and the United States of America being permanent members (Art. 23 para. I sentence l). The General Assembly elects 10 further members as non-permanent members of the Security Council for a period of two years in accordance with more detailed provisions (Art. 23 para. I sentence 2 and para. 2). Decisions of the Security Council on procedural matters require the consent of nine members including all permanent members (S 27 para. 3). At least one permanent member or four non-permanent members can thus prevent a decision from being taken by veto.
In accordance with Art. 39, the Security Council determines whether there is a threat or a breach of the peace or an act of aggression. It makes recommendations or decides which measures are to be taken on the basis of Art. 41 (non-violent sanctions) or Art. 42 (military sanctions with air, sea or land forces) in order to maintain or restore international peace and security. Another fundamental provision is Art. 51, collective self-defense impaired until the Security Council has taken the measures necessary to maintain international peace and security (Art. 51 sentence l).
The main judicial organ of the UN is the International Court of Justice (ICJ) (Art. 92 of the Charter). All members of the UN are automatically parties to its statute (Art. 93). The end of the East-West confrontation, initiated by the "new thinking" of Mikhail Gorbachev, who was elected General Secretary of the CPSU on March 1, 1985 (glasnost and perestroika, openness and reconstruction), has given the ICJ, as well as the UN as a whole, a new status. With the 1986 Nicaragua verdict, the ICJ rejected the right to interfere with the facilities of a foreign state in order to safeguard human rights. In a 1994 decision, the European Parliament took the opposite view in the event that all other means failed, without clarifying the contradiction to the strict ban on violence and intervention under the UN Charter.
c. Other provisions of international law
The Geneva Conventions on the Protection of Victims of Armed Conflicts of 12.8.1949, which took effect for the Federal Republic of Germany on 14.8.1991, contain, for example, in the Additional Protocol of 8.6.1977, provisions for the protection of the civilian population and civilian objects against the effects of attacks of any kind (Articles 48-51). The protected objects include e.g. food, fresh water, production and irrigation facilities (art.52-54).
The Declaration on the Principles of International Law concerning Friendly Relations and Cooperation between States of 24.10.1970 presents a summary of Art. I and 2 of the Charter, the Declaration on the Principles of International Law concerning Friendly Relations and Cooperation between States of 24 October 1970 represents the most important contribution to international law since the Second World War and contains the following principles: renunciation of violence and the threat of violence, independence and sovereign equality of states, equality of rights and self-determination of peoples, non-interference in the internal affairs of a state, cooperation in solving economic, social, cultural and humanitarian problems and strengthening human rights, peaceful settlement of disputes, fulfillment in good faith of the obligations of membership.
A special regulation under international law is the Moscow Treaty of 12.9.1990, on which the German reunification is based, concluded between the Soviet Union, the United States, the United Kingdom, France and the two German states. It is described in Art. I as an essential part of the peace order in Europe. Art. 2 sentence I and 3 read The governments of the Federal Republic of Germany and the German Democratic Republic reaffirm their declarations that only peace will emanate from German soil.
The Governments of the Federal Republic of Germany and the German Democratic Republic declare that the united Germany will never use any of its weapons except in accordance with its Constitution and the Charter of the United Nations.
d. Customary International Law
In addition to written law, customary law can also develop in international law, provided that the usual conditions for this are fulfilled, namely a longer handling in state practice and a corresponding legal conviction among states. In the Nicaragua v. USA case, for example, the ICJ found that the following principles were valid under customary law: prohibition of violence, prohibition of intervention, respect for the independence and territorial integrity of states, and freedom of navigation. Thus the prohibition of force belongs also after article 25 GG to the general rules of international law, which are a component of the federal law and take precedence over the national laws.
V. NATO Law
NATO was founded as a purely defensive alliance, for example after the North Atlantic Treaty of 4 April 1949 in the version of 17 October 1951, the NATO troop statute of 19 June 1951 and the supplementary agreement in the version of 18 March 1993. The Brussels Treaty on Western European Union (WEU) in the version of 23 October 1954 regulated economic, social and cultural cooperation beyond collective self-defense. After the dissolution of the Eastern Bloc, the Eastern European states joined NATO (1999 Poland, the Czech Republic and Hungary, 2004 Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia and Slovenia). Russia, which the Security Council and other international organizations recognized as a successor state to the USSR, forms the Commonwealth of Independent States (CIS) together with Belarus, Ukraine and eight other states in the Middle East; it is linked to NATO only through a few cooperation agreements. Thus a pan-European security system has not been established. Nonetheless, according to its Strategic Concept of 24 April 1999, NATO, in addition to its tasks as a defense alliance, performs peacekeeping and stability keeping functions on the basis of shared fundamental values such as democracy, human rights and the rule of law. Neither the NATO treaties nor the treaties with its members adequately define this new orientation. For this reason and because of the lack of involvement of potential adversaries, it is misguided to classify NATO as a regional system of collective security. Moreover, it lacks a binding conflict resolution system comparable to that of the UN.
An example of NATO's competence difficulties as a defense alliance is provided by the decision of the Federal Constitutional Court of 3 July 2007, which formally addressed the question of whether the further development of NATO through the participation of armed German forces in the deployment of an International Security Assistance Force in Afghanistan (ISAF mandate) in 2007 required the involvement of the German Bundestag. The court denied this and explained in detail that NATO, as a "basically classic defense alliance" according to its strategic concept of 1999, could also conduct additional "crisis response missions" across the alliance's borders for the security of the Euro-Atlantic area. The ISAF mission, which was "essentially intended to create and secure the framework for the civilian reconstruction of Afghanistan by military and police means", was also based on UN Resolutions 1386 (2001), 1510 (2003) and 1707 (2006). In this regard, it must be said that the UN resolutions are not legally binding in themselves, because the decisive factor in the case of interventions in the existence of another state is whether the conditions established for them under the UN Charter have been met, which, given the facts of the case, is likely to be negated. To speak of a possible emergence of customary international law with the help of resolutions is also out of the question here, because the UN Charter cannot be questioned as a basic substance.
V. Theaters of War
In the second half of the 20th century, the following wars of aggression, among others, took place: Korea 1950-1953, Iran 1953, Guatemala 1954, Indochina 1954, Hungary 1956, Lebanon 1957-1958, Congo 1960, Cuba 1961, Vietnam 1964-1975, Dominican Republic 1965, Greece 1967, Czechoslovakia 1968, Cambodia 1970, Chile 1973, Afghanistan 1979-1980, Grenada 1983, Nicaragua 1981-1984, Panama 1989, Gulf War 1991, Iraq 1998, Sudan 1998.
The three most serious wars of the last 15 years will be briefly discussed here:
a. Yugoslavia 1999
The NATO bombing in spring 1999 had an extensive history (dissolution of the Eastern Bloc, disintegration of the Socialist Federal Republic of Yugoslavia, civil war-like fighting in the province of Kosovo from 1997). Despite this development, the UN Security Council would have had no difficulty in identifying the conditions, particularly in Kosovo, as a breach of peace and in initiating and implementing military sanctions in accordance with Article 42 of the Charter. However, it did not consider itself able to do so because of Article 27, paragraph 3, because Russia had announced a veto against such measures. This fact, however, did not give NATO the right to attack the sovereign state of Yugoslavia militarily without a UN mandate. To make matters worse, the bomb drops violated the protocols to the Geneva Conventions (see III 3) and the principle of proportionality under customary international law. This constituted a war of aggression that was illegal under Article 2 No. 4 of the UN Charter. With regard to the Federal Republic of Germany, which participated in the mission, e.g. with tornadoes (see Weser-Kurier of 25 March 1999: "German Tornados safely returned"), this was a flawlessly unconstitutional war of aggression in accordance with Article 26 (1) sentence 1 of the Basic Law.
A storm of public indignation arose after the fighting. Of the large number of protests, the declaration "We accuse" by W. Beutin/Deschner/Wollschläger with a detailed list of violations and quotations from other critics, and the paper "The Terror of War" about a protest event on May 27, 1999 (see also literature survey) are worth mentioning.
b. Afghanistan 2001
The attack by the terrorist network Al-Qaeda on the World Trade Center and the U.S. Pentagon on IL September 2001 was, in terms of its nature and extent, an epochal break in international relations and at the same time an attack on the entire civilized world. President George W. Bush responded to the act of terror with the call for a military counterstrike. Rather on the sidelines, the UN Security Council was called upon to issue a mandate for military intervention in Afghanistan, which the Security Council rejected with reference to the UN Charter". The U.S. administration then invoked its right to self-defense under Article 51 of the Charter for its war, which it started on October 7, 2001. To this day, it has not been able to prove the prerequisite under Article 51, an armed attack by the Afghan state. The terrorist attack hit the USA unexpectedly, but not unprepared. According to the book title of its long-time security adviser Brzezinski, "The Only World Power. America's strategy of domination", they are constantly prepared for military action in the Middle East simply because of the sources of raw materials.
What the USA did not succeed at the UN, they achieved without further ado at NATO: the authorization for war, namely by NATO announcing on October 1, 2011, for the first time in its history, in accordance with Article 5 of the NATO Treaty, the fall of the alliance, which called on the member states to support the USA in its war against Afghanistan. The Federal Republic was just as unsuccessful as the USA before in obtaining authorization from the UN Security Council for military action against Bin Laden and the Taliban. Nevertheless, Afghanistan was militarily attacked with the participation of NATO, including the Federal Republic.
In the legal assessment, this war was also an act of military violence prohibited by Article 2 No. 4 in conjunction with Articles 39 and 42 of the UN Charter. In addition to the right of self-defense (Art. 51), there is no right to a military counterattack; groups and individual perpetrators must be held criminally accountable, for which purpose tribunals may be established under international law. As far as the Federal Republic is concerned, there is a war of aggression prohibited under Article 26 (I) sentence I GG.
c. Iraq in 2003
After a history of more than 12 years, determined by Iraq's invasion of Kuwait, military action by the United States and the United Kingdom against Iraq and Iraq's failure to comply with Security Council resolutions, the conflict escalated again at the end of 2002. With the claim that Iraq was in possession of weapons of mass destruction and thus an immediate threat to international peace, the USA tried to obtain authorization for military action from the UN Security Council in early 2003. To this end they presented a large number of implausible and even forged documents. An independent commission was therefore set up to verify the US claims. The world waited eagerly for the result of the examination; it was negative. The Security Council therefore refused to grant a mandate under Article 42 of the Charter. The United States did not let this discourage it and prepared a military action against Iraq by a coalition of several states led by the United States. An intervention met with resistance in neighboring Turkey. Against the will of its government, the Turkish parliament rejected the stationing of special US forces in Turkey on March 1, 2003, thus preventing a ground offensive by US troops from Turkey into northern Iraq. However, Turkey released its airspace for the overflight by military aircraft of the coalition of states. The German Chancellor Schröder declared that Germany would not take part in a war against Iraq, but would fulfill its alliance obligations and grant the USA and NATO overflight, movement and transport rights. To protect the alliance area, AWACS (AWACS Airborne early warning and control system of NATO) planes would be manned by German soldiers. In accordance with these declarations, the U.S. and NATO operations against Iraq were carried out.
According to the above facts, this is also a case of the use of force in violation of international law according to Art. 2 No. 4 of the UN Charter and at the same time a war of aggression that is unconstitutional and prohibited according to Art. 26 para. I sentence I. Although the Federal Republic's share of the crime is lower than in other cases, it has been an essential part of the overall action. This is also the conclusion reached by the Federal Administrative Court in a very detailed and thorough ruling of June 21, 2005. The case concerned a professional soldier in the German Armed Forces who had refused to participate in the further development of a military software program intended for use in war operations as part of his official duty for reasons of conscience. As a result, the military court reduced his rank because of a service offense. His appeal to the BVerwG was successful. The court explained in detail that the operations of the USA and NATO were contrary to international law and the constitution. To this end, it based itself on Articles 2 (4), 39 and 41 et seq. of the UN Charter and denied authorization by the UN Security Council, and after a thorough evaluation of Articles 25 and 26 (1) of the Basic Law, it affirmed that the preparation and conduct of a war of aggression was independent of subjective objectives.
Against the background of the clear facts of the wars of aggression and the equally clear provisions of the UN Charter prohibiting violence and intervention, a reorganization of international law is being discussed under the heading of "constitutionalization". The extreme position is marked in the direction of a "relativization of the ban on violence in favor of the protection of elementary human rights" and the "teleological adaptation of international law norms to new challenges", even if this favors states with "economic and military hegemony or oligopoly positions". In refuting this position, Paech and Stuby have pointed to a weakening of the legal system, an increase in legal uncertainty and a misjudgment of the normative hierarchy (prohibition of violence as ius cogens of international law, human rights as simple international law).
Chancellor Merkel has brought another variant into play in the growing conflict between power, good will and law. During her participation in the party conference of the Junge Union on October 16, 2015, she referred to the "Responsibility to protect" as the basis under international law for a military intervention on humanitarian grounds in Syria. This refers to a study that was developed at the instigation of former UN Secretary-General Kofi Annan in 2001 and was noted as such by the General Assembly at the time. It calls on states to conscientiously fulfill their responsibility to protect their own population and does not give them the right or even the obligation to intervene vis-à-vis other states. The decision to intervene in such cases remains the sole responsibility of the Security Council under Articles 39, 41 and 42 of the UN Charter. The General Assembly is also bound by it, unless it amends the relevant provisions of the Charter with the necessary two-thirds majority. Good will, even if it really exists, is not enough to change the strict commitment to international law.
Referring to UN Declaration of Principles 2625 of 1970, Paech and Stuby have clearly outlined the current state of affairs as follows
All basic rules and values in the UN Charter are listed bindingly for all states. This applies to the sovereignty and equality of states, the guarantee of territorial integrity and political independence, the prohibition of violence and intervention, the right of self-determination of peoples, and the obligation of states to cooperate and settle international disputes peacefully.
VI Criminal liability of war of aggression
a. Nuremberg Military Tribunal 1946
From 1946 onward, the Allied Powers sat in Nuremberg to judge Nazi crimes, not as a world court suspended above the individual states, but as the bearer of Germany's national sovereignty after its unconditional surrender. The content of the indictment was therefore only secondarily crimes against humanity, but primarily the planning and execution of a war of aggression by a sovereign state against other sovereign states, ending peace in the world. Art. 6 letter a of the Charter of the International Military Tribunal drawn up by the Allies in London in 1945 mentions among the "crimes against peace" "the planning, preparation or execution of a war of aggression". This corresponded to the carefully conducted proceedings under the direction of the American chief prosecutor Robert H. Jackson and his deputy Robert H. W. Kempner. Jackson's credo must also be emphasized that the trial should set an example that the entire international community would no longer tolerate wars of aggression and would outlaw and punish the crimes associated with a war (see Ingo Müller, keynote lecture 60 years after the beginning of the Nuremberg Trial of Major War Criminals). Extensive minutes and other records are available on the 13 Nuremberg Trials, including the so-called Wilhelmstrasse Trial, in which Kempner was the chief prosecutor, especially on the interrogation of the accused. After these trials, Egon Bahr, who as a 23-year-old journalist had experienced the end of the war in Berlin, characterized the situation in Germany with the sentence "We got away with it once again".
b. Development towards the International Criminal Court
The Nuremberg Trials have stimulated the discussion on international criminal law. It is true that criminal law essentially still falls within the jurisdiction of national courts (territoriality principle). Nevertheless, there are examples of foreign citizens also being tried, as the trials of Eichmann and Demjanjuk show. Despite some procedural violations, the need for "expiation and deterrence" in particular ensured international acceptance of the verdicts. However, there was no instance under international law that could internationally judge war criminals in particular. The disappointed public therefore made use of so-called "tribunals of opinion" in which scientists explained the political, military and economic connections between warlike events. The "International Tribunal on the American War Crimes in Vietnam", initiated by the English philosopher Lord Bertrand Russell and chaired by Jean Paul Sartre in 1967, has become particularly well-known. Even though this body had no legal jurisdiction or sanctioning power, its final verdict contained two justified accusations in the form of serious violations by the United States of the UN Charter's ban on violence and aggression and of numerous bans on international law of war.
In connection with these steps, the UN Security Council felt compelled, because of the crimes and human rights violations that had occurred since 1990 in the disintegrating federal state of Yugoslavia, to establish first a commission of experts and then, in 1993, an international tribunal for the trial and adjudication of war crimes in the former Yugoslavia, with its headquarters in The Hague.
The tribunals described above also promoted the development of international criminal law toward a permanent International Criminal Court. A corresponding statute was adopted by a large majority in 1998. The criminal offenses covered are limited to genocide, crimes against humanity and war crimes. The Court was established in 2000. It was not until 2012 that the states were able to agree on a definition of aggression, which will not allow the criminal prosecution of wars of aggression until 2017.
c. Delaying fulfillment of Article 26 (I) sentence 2 of the Basic Law
The criminalization of acts according to Article 26 (1) sentence 2 of the Basic Law, as prescribed in Article 26 (1) sentence I, remained unfulfilled for about twenty years. Obstacles or other reasons have not become known. Several persons and institutions therefore addressed inquiries, petitions or demands to the legislator to realize the legislative mandate.
The writer Kurt Hiller repeatedly demanded the fulfillment of the law, especially to reduce the danger of war and to realize a rational order. The then Federal Minister of Justice, Richard Jäger, reacted with indignation, pointing out that criminal liability was an international problem that could not be solved independently by a single state and therefore required the involvement of the United Nations. This was not true, since the criminal provision fell solely within the competence of the Federal Republic of Germany. In the fall of 1965, Hiller addressed a new declaration to the legislature via the Neo-socialist League and with the signatures of Georg Burckhardt, Karlheinz Deschner, Heinrich Dorsch, Ossip K. Flechtheim, Susanne Leonhard, Martin Niemöller and Erwin Piscator, among others. In a comparatively short time, namely with the 8th Criminal Reform Act of June 25, 1968 during Gustav Heinemann's term of office as Federal Minister of Justice, the SS 80 and 80a Criminal Code (StGB) regulated criminal liability.
d. Proceedings under §§ 80 and 80a of the German Criminal Code (StGB)
§ 80: Preparation of a war of aggression
Whoever prepares a war of aggression (Article 26 (I) of the Basic Law), in which the Federal Republic of Germany is to participate, and thereby causes the danger of war for the Federal Republic of Germany, shall be punished with life imprisonment or with imprisonment for a term not less than 10 years.
§ 80a: Incitement to war of aggression
Whoever incites to a war of aggression (§ 80) in public, in a meeting or by distribution of writings (S Il para. 3) within the territorial scope of this law will be punished with imprisonment from 3 months to 5 years. As far as can be seen, no criminal proceedings with conviction have become known. In the absence of corresponding statistics, it is not known whether there have been charges and preliminary proceedings
In a resolution dated March 21, 2003, the Federal Prosecutor General at the Federal Court of Justice rejected the initiation of preliminary proceedings against members of the federal government on suspicion of preparing a war of aggression because there were no sufficient factual indications for an initial suspicion. In support of his position, he stated, among other things, that the criminal provision did not comprehensively protect international peace, but only to the extent that Germany could get into a conflict situation. The granting of rights of overflight, movement and transport in accordance with the Chancellor's willingness was not participation in a war of aggression, which, moreover, had not been clarified conceptually. The outbreak of a war by the act must be probable and the plaintiff's intent must extend to this.
These remarks are partly justified. The opinion that the concept of a war of aggression has not been sufficiently clarified and that the granting of overflight rights and the like is no participation in an act of aggression is incorrect. Reference is made to the above statements in this regard. It must also be criticized that interventions for humanistic reasons could exclude an act of aggression. On the other hand, it is correct that both § 80 and § 80a are limited to wars of aggression, whereas Art. 26 para. 1 sentence I also includes other acts endangering peace. Furthermore, § 80 requires that the perpetrator, through his action, brings about the probable danger of war for the Federal Republic of Germany and also covers this with his intent. Art. 26 para. 1 sentence I does not make any provision for this. In cases of minor offences, therefore, no punishment will be possible as a rule. Since § 80 StGB deviates in the two points mentioned from the requirement of the article 26 exp. 1 sentence 1 GG, the legislator should think about a correction of § 80 StGB. That would be also up-to-date before the background of increasing peace-hostile actions in parts of the population.
If we act right and if there is justice between every person and every people, then we have peace.
(Indian wisdom at the peace tunnel in Bremen)
The article was first published in the book: "We got away once again" Heidi Beutin/Hans Böttcher/Uwe Polkaehn by the publishing house Ossietzky. There you can see the notes and the bibliography. The article is mirrored here with kind permission of the publisher.