German Court on legality of Iraq War

The German Law Journal (an excellent, free monthly online journal, providing English-language coverage of German, European and International legal affairs) has this month published an interesting case note of a judgment by the Bundesverwaltungsgericht (BVerwG – German Federal Administrative Court), in which the issue of the legality of the war in Iraq, and Germany's role therein, were dealt with. The case concerned an appeal from a Military Court, which had ruled that a Major in the Army be demoted to the rank of Captain for refusing to participate in the development of software designed to increase the efficiency of the German armed forces. The officer relied upon his consitutional right to freedom of conscience, arguing that the software could also be used in combat operations in Iraq. The BVerwG found in his favour.

In the Court's opinion, this exercise of freedom of conscience was made in the special circumstances of the Iraq war, thus requiring a judgment on the its legality. It concluded that there were "grave concerns in terms of international law", both in terms of the war itself and Germany's limited role in it. This conclusion is a little odd, in that it clearly stops short of a finding of outright illegality, despite the fact that, according to the case note, the ratio decidendi in the judgment scarcely seems to allow for such obfuscation: the Court began by assuming prima facie violation of Article 2(4) of the UN Charter, then looked to what could justify the war (Chapter VII Security Council action, under Article 39), or exempt it from the coverage of that provision (self-defence, under Article 51), and concluded that neither was applicable.

Judging from the case note alone, there may be some concerns over the sophistication of the international legal analysis carried out by the Court; for example, in their limited discussion of the right to self-defence, or in their assertion that the “Definition of Aggression,” agreed upon by way of consensus by General Assembly (GA) Res. 3314 (XXIX) of 1974 represents a "codification of customary international law". Nonetheless, this judgment remains important as the first by a court of law on the legality of the Iraq war; even if the conclusions it reached will come as no surprise to the vast majority of scholars, politicians, or, indeed, members of the public.