1 BVerwG, 2 WS 12.04, 21 June 2005, available at http://www.bundesverwaltungsgericht.de. For media coverage, see Frankfurter Allgemeine Zeitung, 23 June 2005, at 1; Frankfurter Allgemeine Zeitung, 1 October 2005, at 4; Frankfurter Allgemeine Zeitung, 14 October 2005, at 11.Google Scholar

2 In a criminal law case regarding protest actions involving the blockade of the U.S. airbase at Frankfurt, Germany, in March 2003 by “Pax Christi“ decided by the Higher Regional Court (“Oberlandesgericht“) in Frankfurt, the court acquitted the protesters on different grounds. See OLGSt Frankfurt, Case No. 1 Ss 11/05, 9 September 2005; see also infra note 51 (on pertinent decisions of foreign courts, which were hesitant to even touch the issue of the legality of the war on Iraq).Google Scholar

3 Grundgesetz [GG] [Constitution] art. 4, para. 1 (F.R.G.). German translation provided by the German Federal Government available at http://www.bundesregierung.de/static/pdf/GG_engl_Stand_26_07_02.pdf.Google Scholar

4 The Attorney of the Federal Armed Forces (“Wehrdisziplinaranwalt“) also appealed the decision, because he wanted the respondent to be expelled from the army.Google Scholar

5 Grundgesetz, art. 4, para. 1.Google Scholar

6 U.N. Charter art. 2, para. 4.Google Scholar

7 Military and Paramilitary Activities Merits (Nicar. v. U.S.), 1986 I.C.J. 14, 97, paras. 183 et seq. (June 27) (merits).Google Scholar

8 See Vienna Convention on the Law of Treaties, May 22, 1969, 1155 U.N.T.S. 331.Google Scholar

9 The total membership of the United Nations currently amounts to 191 states, therefore, only very few states are bound by the provision only by virtue of international jus cogens and not at the same time by the treaty law of the Charter.Google Scholar

10 “The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.” Grundgesetz art. 25.Google Scholar

11 BVerwG, 2 WS 12.04, 21 June 2005, 72, available at http://www.bundesverwaltungsgericht.de.Google Scholar

12 BVerwG, 2 WS 12.04, 21 June 2005, 34 et seq., available at http://www.bundesverwaltungsgericht.de.Google Scholar

13 Thus, citizens, for example, do not have standing in German courts to enforce the observance of Art. 4.2 of the Charter vis-à-vis the German Federal Government let alone other states, for that matter.Google Scholar

14 For example Albrecht Randelzhofer, Article 51, in The Charter of the United Nations, A Commentary (Bruno Simma ed., 2d ed. 2002); U.N. Charter art. 2, para. 4, para. 39; U.N. Charter art. 51, para. 3.Google Scholar

15 Zimmer, Terrorismus und Völkerrecht – Militärische Zwangsanwendung, Selbstverteidigung und Schutz der internationalen Sicherheit 98 (1998); see also Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 244 (July 8). Where the ICJ does not refer to Art. 51 of the Charter and to Chapter VII measures as exceptions of the prohibition of the use of force. This is an important observation, since exceptions to rules must be construed narrowly also in public international law. Therefore, the SC enjoys a wide margin of discretion when and to what extent to authorise the use of force in international relations. The members of the SC do not have to adhere to Art. 2.4 of the Charter when acting in this capacity.Google Scholar

16 U.N. Charter art. 42, art. 43. Notwithstanding this power of the United Nations this option has never materialised in the history of the Organisation since it has, for various reasons, never established a standing military force of its own.Google Scholar

17 U.N. Charter art. 48.Google Scholar

18 “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” U.N. Charter art. 39.Google Scholar

19 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” U.N. Charter art. 51.Google Scholar

20 BVerwG, 2 WS 12.04, 21 June 2005, 73, available at http://www.bundesverwaltungsgericht.de.Google Scholar

21 Diplomatic Notes by the United States, U.N. Doc. S/2003/351 (2003); Diplomatic Notes by the United Kingdom, U.N. Doc. S/2003/350 (2003).Google Scholar

22 BVerwG, 2 WS 12.04, 21 June 2005, 73 et seq., available at http://www.bundesverwaltungsgericht.de.Google Scholar

23 BVerwG, 2 WS 12.04, 21 June 2005, 74 et seq., available at http://www.bundesverwaltungsgericht.de.Google Scholar

24 SCOR Res. 1441, U.N. SCOR., 57th Sess., S/Res/1441 (2002).Google Scholar

25 Id. at para. 13.Google Scholar

26 One might want to note, however, that almost every Resolution of the SC finishes with this set phrase.Google Scholar

27 BVerwG, 2 WS 12.04, 21 June 2005, 75, available at http://www.bundesverwaltungsgericht.de.Google Scholar

28 U.N. Charter art. 51.Google Scholar

29 Letter from Secretary of State Webster to Lord Ashburton (Aug. 6, 1842), available at http://www.yale.edu/lawweb/avalon/diplomacy/britian/br-1842d.htm (concerning the famous Caroline case together with an explanatory note on Caroline). The Webster formula taken from this letter is as follows: “Undoubtedly it is just, that while it is admitted that exceptions growing out of the great law of self-defence do exist, those exceptions should be confined to cases in which the ‘necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.’”Google Scholar

30 Interview by Vanity Fair with Paul Wolfowitz, Vice Secretary of Defence (2003) available at http://www.defenselink.mil/transcripts/2003/tr20030509-depsecdef0223.html.Google Scholar

31 Statement by Secretary General of the United Nations Kofi Annan (Sept. 16, 2004) available at http://news.bbc.co.uk/1/hi/world/middle_east/3661640.stm.Google Scholar

32 BVerwG, 2 WS 12.04, 21 June 2005, 78, available at http://www.bundesverwaltungsgericht.de.Google Scholar

33 BVerwG, 2 WS 12.04, 21 June 2005, 80, available at http://www.bundesverwaltungsgericht.de.Google Scholar

34 Vienna Convention respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Hague V, Oct. 18, 1907 [hereinafter Hague Convention V].Google Scholar

35 BVerwG, 2 WS 12.04, 21 June 2005, 82, available at http://www.bundesverwaltungsgericht.de. On the “Definition of Aggression” as an expression of law, see Military and Paramilitary Activities Merits (Nicar. v. U.S.), 1986 I.C.J. 104, para. 195 (June 27) (merits).Google Scholar

36 After almost 50 years of work the ILC could finally adopt the Draft Articles which were taken note of by the GA on 12th December 2001. U.N. GAOR, 56th Sess., U.N. Doc. A/RES/56/83 (2002). During the 59th GA session the Sixth Committee of the GA again considered the Draft Articles. In a GA Res. of 16th December 2004 the GA put the Draft Articles again on the provisional agenda of its sixty-second session in 2007. U.N. GAOR, 59th Sess., U.N. Doc. A/RES/59/35 (2004). During the 59th GA session it was discussed on how to proceed with the Draft Articles, whether to convene an international conference to negotiate an international convention or, by taking into account that international courts and tribunals have in the past since the adoption of the Draft Articles already referred to and applied several provisions of them, or to refrain from transforming the Draft Articles into international Treaty law. See summaries of the work of the Sixth Committee, www.un.org/law/cod/sixth/59/summary.htm, item 139, in which speakers are quoted that the United Nations Secretariat should be requested to prepare a collection of international practice in the area of the interpretation and application of the Draft Articles to assist the Sixth Committee in deciding how to proceed. See U.N. GAOR, 59th Sess., U.N. Doc. A/RES/59/35, no. 3 (2004) (with which the GA indeed approved this suggestion). The ICJ has already applied single provisions of the Draft Articles in its advisory opinion on July 9^th, 2004. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories, Advisory Opinion, reprinted in 43 ILM 1009- 1098, para. 140 (2004).Google Scholar

37 BVerwG, 2 WS 12.04, 21 June 2005, 83, available at http://www.bundesverwaltungsgericht.de.Google Scholar

38 “The territory of neutral Powers is inviolable.” Hague Convention V art. 1Google Scholar

39 “Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.” Hague Convention V art. 2.Google Scholar

40 Art. 40 of the Draft Hague Rules of Air Warfare, 19th February 1923, which have never been formally adopted, but made reference to by the BVerwG in its judgement since they are, like other rules of war concerned, incorporated by means of a “Central Regulation of Service” (“Zentrale Dienstvorschrift“) issued by the German Federal Minister of Defence.Google Scholar

41 “A neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory.” Hague Convention V art. 5, para. 1.Google Scholar

“Belligerents are likewise forbidden to:Google Scholar

(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea;Google Scholar

(b) Use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.”Google Scholar

Hague Convention V. art. 3Google Scholar

Hague Convention V art. 4 is not relevant in this context. But see Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War, Hague XIII, Oct. 18, 1907, art. 2, 9, 24 [hereinafter Hague Convention XIII; see also Hague Convention XIII art. 11, para. 1, “A neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war.”Google Scholar

42 North Atlantic Treaty, Apr. 4, 1949, 34 U.N.T.S. 243.Google Scholar

43 Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces, June 19, 1951, BGBl. II at 1190, as revised by the Agreement to Supplement the Agreement between the Parties to the North Atlantic Treaty Regarding the Status of their Forces with Respect to Foreign Forces Stationed in the Federal Republic of Germany (Supplementary Agreement), August 3, 1959, BGBl. II at 1218, in the authoritative version of the Agreement, May 18, 1993, 1994 BGBl. II at 2594, 2598) [hereinafter, together with the NATO Treaty, collectively referred to as the “NATO Agreements”].Google Scholar

44 Convention on the Presence of Foreign Forces in the Federal Republic of Germany, October 23, 1954, 1955 BGBl. II at 253.Google Scholar

45 BVerwG, 2 WS 12.04, 21 June 2005, 85, available at http://www.bundesverwaltungsgericht.de.Google Scholar

46 Emphasis added.Google Scholar

47 BVerwG, 2 WS 12.04, 21 June 2005, 85, available at http://www.bundesverwaltungsgericht.de.Google Scholar

48 BVerwG, 2 WS 12.04, 21 June 2005, 95, available at http://www.bundesverwaltungsgericht.de.Google Scholar

49 On 24th of February 2003, a U.S. federal court, the U.S. District Court for the District of Massachusetts, on political question grounds, dismissed a lawsuit filed by U.S. soldiers, parents of U.S. soldiers, and Members of Congress against the President of the United States, George W. Bush, and the Secretary of Defense, Donald H. Rumsfeld, challenging the President's authority to wage war against Iraq in the absence of a congressional declaration of war or equivalent action, see Doe v. Bush, 240 F. Supp. 2d 95 (D. Mass. 2003). The appellate court, the U.S. Court of Appeals for the First Circuit, on 13th of March 2003, affirmed, albeit on different grounds, namely, that the suit was not ripe for judicial review, Doe v. Bush, 322 F.3d 133 (1st Cir. 2003); rehearing denied by Doe v. Bush, 322 F.3d 109 (1st Cir. 2003). See also Callan v. Bush, Civil Action No. 4:03CV3060, memorandum and order from April 30, 2003 of the U.S. District Court for the District of Nebraska, in which the court refused to entertain in substance the allegations of a former Congressman that President Bush violated American law and the Charter by invading Iraq, for a lack of standing but also on political question grounds. Affirmed by the U.S. Court of Appeals for the Eighth Circuit on 26 July 2004, case No. 03-4047. The U.S. Supreme Court later refused to grant certiorari on 10th January 2005, and eventually denied a rehearing of the case on 4th April 2005, see Callan v. Bush, 125 S.Ct. 932 (2005), available at www.supremecourtus.gov/docket/04-738.htm. On the political question doctrine as applied by U.S. courts in general see John Nowak & Ronald Rotunda, Constitutional Law 125 (7th ed., 2004); with respect to foreign affairs see id. at 129.Google Scholar

In the UK the High Court of Justice, Queen's Bench Division (Divisional Court), on 17th December 2002, dismissed, inter alia, on royal prerogative grounds, an application for declaratory relief that the UK Government would be acting in breach of international law were it to take military action against Iraq without a further SC Resolution in addition to SC Res. 1441 (2002), see Campaign for Nuclear Disarmament v. The Prime Minister of the United Kingdom et al., [2002] EWHC 2777 (Admin), para. 50 (Brown LJ); see also R v Jones and Another; R v Olditch and Another; R v Richards [2004] EWCA Crim 1981, in which Latham LJ held that it was not necessary to consider the question whether or not the legality of the war in Iraq was a justiciable issue.Google Scholar

50 See BVerfGE 75, 1 (18, et seq.); see also BVerfG, 2 BvR 1481/04 of Oct. 14, 2004, paras. 33 et seq., available at http://www.bverfg.de/entscheidungen/rs20041014_2bvr148104e.html.Google Scholar

51 Grundgesetz art. 87a.1 provides that the German Federal Armed Forces are constituted only for defensive purposes. However, such defensive purposes could, so the BVerwG held without expressing a definite opinion, also include actions taken in collective self-defence against an armed attack which has occurred against a third state, since the wording of the provision is not confined to the defence of the German state, but extends to defence in general, which includes the occurrence of an armed attack on a NATO member in terms of Art. 5 of the NATO Treaty as long as Art. 51 of the Charter is observed. BVerwG, 2 WS 12.04, 21 June 2005, 30, available at http://www.bundesverwaltungsgericht.de.Google Scholar

52 Grundgesetz art. 26.1. The second clause of this Article further provides that such acts shall be made a criminal offence, which is to be found in the German Criminal Code, Section 80; see note 57 infra.Google Scholar

53 See Grundgesetz art. 25.Google Scholar

54 BVerwG, 2 WS 12.04, 21 June 2005, 28, available at http://www.bundesverwaltungsgericht.de.Google Scholar

55 Id. The Court only expressly held that there were no other grounds which would have made the order to the respondent not binding (see (iv)).Google Scholar

56 See German reprint in the BVerfG, JURISTENZEITUNG 908 (2003); or see Der Irak-Krieg und das Völkerrecht 173, (K. Ambos & J. Arnold eds., 2004).Google Scholar

57 § 80 StGB available at http://www.iuscomp.org/gla/statutes/StGB.htm#80. This section reads as follows: “Whoever prepares a war of aggression (GG art. 26, para. 1) in which the Federal Republic of Germany is supposed to participate and thereby creates a danger of war for the Federal Republic of Germany, shall be punished with imprisonment for life or for not less than ten years.”Google Scholar

58 BVerwG, 2 WS 12.04, 21 June 2005, 33, available at http://www.bundesverwaltungsgericht.de.Google Scholar

59 National Security Strategy of the United States of America, Sept. 2002 available at www.whitehouse.gov/nsc/nss.pdf.Google Scholar

60 See A more Secure world: Our Shared Responsibility, Report of the High Level Panel on Threats, Challenges and Change, at http://www.un.org/secureworld/report2.pdf (“Article 51 needs neither extension nor restriction of its long-understood scope, and Chapter VII fully empowers the Security Council to deal with every kind of threat that States may confront. The task is not to find alternatives to the Security Council as a source of authority but to make it work better than it has”); see also Id. at p. 63, para. 192, (“We do not favour the rewriting or reinterpretation of Article 51”).Google Scholar

61 U.N. GA, Draft Outcome Document, Sept. 16, 2005, para. 79 at http://www.un.org/summit2005/Draft_Outcome130905.pdf. stating, “We also reaffirm that the relevant provisions of the Charter are sufficient to address the full range of threats to international peace and security. We further reaffirm the authority of the Security Council to mandate coercive action to maintain and restore international peace and security. We also stress the importance of acting in accordance with the purposes and principles of the Charter.” Albeit this paragraph is couched in very general terms, it is save to state that the right to self-defence shall not be rewritten or reinterpreted according to the more than 150 Heads of State and Government who approved the world summit outcome document.Google Scholar

62 BVerwG, 2 WS 12.04, 21 June 2005, 32, available at http://www.bundesverwaltungsgericht.de.Google Scholar

63 BVerwG, 2 WS 12.04, 21 June 2005, 73, available at http://www.bundesverwaltungsgericht.de.Google Scholar

64 Rome Statute of the International Criminal Court, 17 July 1998, 37 ILM 999 (1998) [hereinafter Rome Statute].Google Scholar

65 Rome Statute art. 5, para. 2.Google Scholar

66 For an account of the preparatory work of the Preparatory Commission for the International Criminal Court, the Working Group on the Crime of Aggression and the Assembly of State Parties to the Rome Statute see http://www.jus.unitn.it/users/nesi/pubblicazioni/CrimeofAggression/home.html. The latest document on the issue from the Working Group from 29th June 2005 can be retrieved from the website http://www.icc-cpi.int/library/asp/ICC-ASP-4-SWGCA-INF1_English.pdf. See Zimmermann, in Commentary on the Rome Statute of the International Criminal Court, art. 5 paras. 16 (Otto Triffterer ed., ed. 1999).Google Scholar

67 The Rome Statute entered into force on 1st July 2002.Google Scholar

68 On aggression see, Hummrich, Der völkerrechtliche Straftatbestand der Aggression, 2001; Irina Kaye Müller-Schieke, Defining the Crime of Aggression Under de Statute of the International Criminal Court, 14 Leiden J. Int'l L. 409 (2001); Grant Dawson, Defining Substantive Crimes within the Subject Matter of the Jurisdiction of the International Criminal Court: What is the Crime of Aggression? 19 N.Y. L. Sch. J. Int'l & Comp. L. 413 (2000); Justin Hogan-Doran & Bibi T. van Ginkel, Aggression as a Crime Under International Law and the Prosecution of Individuals by the Proposed International Criminal Court, 43 Neth. Int'l L. Rev. 321 (1996); Carpenter, The International Criminal Court and the Crime of Aggression, 64 Nordic J. Int'l L. 223 (1995); Dinstein, War, Aggression and Self-Defence 117 (1988).Google Scholar

69 See, e.g., Bothe, , Der Irakkrieg und das völkerrechtliche Gewaltverbot, 41 Archiv für Völkerrecht 255 (2003); Murswiek, Die amerikanische Präventivkriegsstrategie und das Völkerrecht, 56 Neue Juristische Wochenschrift 1014 (2003); Kurth, Der dritte Golfkrieg aus völkerrechtlicher Sicht, 36 Zeitschrift für Rechtspolitik 195 (2003); Breitwieser, Vorweggenommene Selbstverteidigung und das Völkerrecht, 47 Neue Zeitschrift für Wehrrecht 45 (2005), available at http://www.deutsches-wehrrecht.de/Aufsaetze/NZWehrr_2005_045.pdf. The BVerwG made frequent reference to these law journal articles in its judgement. It further has to be noted that one of the three judges of the Second Senate for Military Service Matters (“Wehrdienstsenat“) of the BVerwG who signed the judgement had been active before in publishing on the illegality of the war on Iraq and Germany's action supporting it. See, Deiseroth, Deutschland im US-Irak-Krieg – NATO-Bündnisverpflichtungen im Konflikt mit Verfassungsund Völkerrecht?, in Der Irak-Krieg und das Völkerrecht 131 (K. Ambos & J. Arnold eds., 2004); see also Deiseroth, Stärkung des Völkerrechts durch Anrufung des Internationalen Gerichtshofs? (2004) (with extensive reference to decisions of foreign courts cited in footnote 51). Also see the statement of many leading German international law scholars made on behalf of the World Federalist Movement, undated, available at http://homepage.hamburg.de/weltfoederalisten/voelkerrecht/voelkerrecht-und-irak.html, and the statement of the Scientific Advisory Groups of the German Bundestag (“Wissenschaftliche Dienste des Bundestages“) from 2nd January 2003, reprinted in Der Irak-Krieg und das Völkerrecht 224 (K. Ambos & J. Arnold eds., 2004).Google Scholar

70 See only the press release from the International Commission of Jurists as of 18th March 2003, which was supported by some 60 lawyers, http://www.icj.org/IMG/pdf/Iraq_war_18_03_03_.pdf, the statement as of 7th March 2003 signed by teachers of international law, available at http://www.guardian.co.uk/letters/story/0,3604,909275,00.html, and O'Connell, ASIL Insights, Addendum to Armed Forces in Iraq: Issues of Legality, April 2003, at http://www.asil.org/insights/insigh99a1.htm.Google Scholar

71 See GA Res. supra note 36 and accompanying text.Google Scholar