Aggressive war refers to the use of force by one state or states against another state without either the attacker (or another allied state) having been attacked by the attacked state itself, such an attack being imminent or the attacked state notifying the attacker war had declared or part of its territory occupied would consider.
The definition of a war of aggression includes the definition of an attacker, from the perspective of the attacked it is a defensive war . In modern international law there is a fundamental ban on war of aggression. The opinion in parts of legal doctrine, according to which a sovereign has a right to wage war , the ius ad bellum , was finally rejected after the First World War . But already in the early modern period and especially in the 19th century, this supposed “right to war” was heavily criticized and only seriously asserted by a minority of legal theorists: While a general positive law prohibition of war of aggression was only standardized in the 20th century, the As recent research has shown, the roots of this ban in the 19th century.
International law provisions and attempts to enforce a war ban
Even before the outbreak of the Second World War , the war of aggression was declared to be contrary to international law in various agreements, resolutions, international treaties and draft treaties and in some cases was already viewed as a crime. The Treaty of Versailles, for example, required in Art. 227 the former Kaiser Wilhelm II to be brought before a public court, because by unleashing a war of aggression he had violated the moral law. The Geneva Protocol of 1924 described the war of aggression in its preamble as an "international crime", as did the declaration of the Federal Assembly of the League of Nations of September 24, 1927 and the resolution of the 6th Pan-American Conference in Havana of June 18, 1928.
With the Briand-Kellogg Pact of 1928, the signatory states renounced war as an instrument for the implementation of national goals. Disputes should only be resolved in a peaceful manner. It is still in force and binds the 40 ratifying states to this day. In Art. 2 of the Charter of the United Nations there is also the obligation not only to refrain from the use of force, but also to threaten it. The General Assembly of the United Nations defined war of aggression in resolution 3314 , but its resolutions are not binding under international law. The Rome Statute , the legal basis of the International Criminal Court , prohibits wars of aggression, but in the original version did not yet provide its own definition of the offense of aggression. This was made up for by consensus among the contracting states at the 1st Review Conference in Kampala in June 2010.
According to Article 20 (a) of the International Covenant on Civil and Political Rights (ICCPR), war propaganda should also be banned.
Legal situation in Germany
Criminal Code , issued in implementation of Art. 26 GG, read:
In terms of the facts, there was only the preparation for a war of aggression with Germany as a participant if the concrete danger of such a war actually threatened. Therefore, practically only holders of key positions in state power came into consideration as perpetrators. The term war of aggression was not defined in the law and was understood in jurisprudence and jurisprudence as “armed aggression contrary to international law”. Since the definition in international law was also not clear, it was sometimes doubted that the penal norm corresponded to the principle of certainty .
On January 1, 2017, Section 80 of the Criminal Code was replaced by International Criminal Code (crimes of aggression).
According to Art. 2 of the Two-Plus-Four Treaty of September 12, 1990 on the final regulation with regard to Germany, the following applies with the entry into force on March 15, 1991 (prohibition of aggressive war):
The only exception can be seen if, following a resolution by the UN Security Council in accordance with Article 42 or 53 of the Charter of the United Nations, which is a basis for international law , the use of military force with German participation is decided. In this case, there is at least no violation of the two-plus-four contract.
International conflicts of modern times
Italy declared war on Austria-Hungary in May 1915 in order to conquer various regions (see World War I # Italy's entry into the war ), although Germany, Austria-Hungary and Italy had formed the Triple Alliance , a secret defensive alliance, since 1882 .
Due to the prohibition under international law, attempts are made in many cases to depict or construct a war of aggression as a war of defense . The attack on the station Gleiwitz , which the SS Poland blamed, served as a pretext for the German attack on Poland at the beginning of the Second World War . Similarly, Belgium and the Netherlands were accused of having “completely unilaterally favored Germany's opponents of the war and encouraged their intentions”.
Sometimes a war of aggression is also presented as a "preventive defense war". The only case so far that is widely regarded as a justified defense is Israel's preemptive strike at the start of the Six Day War (1967).
However, a paradigm shift can also be observed here. No attempt was made to portray NATO's war against the rest of Yugoslavia as a defensive war, nor to justify it with existing international law, but with an expanded interpretation of international humanitarian law - comparable to emergency aid . The humanitarian reasons were u. a. based on the alleged horseshoe plan , which should lead to further expulsions by the Serbian army , but was a mere secret service invention to create a casus bellum.
The attack by the Coalition of the Willing, led by the United States of America, on Iraq in the Third Gulf War in 2003 (Iraq War) was justified by George W. Bush as a preventive war "to ward off an impending danger" because Iraq allegedly possessed weapons of mass destruction . However, no weapons of mass destruction were found in Iraq. In the opinion of many critics, the Iraq war was therefore not a preventive war in the sense of the United Nations ( see: Caroline criteria ), but rather a war of aggression contrary to international law. Former United Nations Secretary General , Kofi Annan , saw the Iraq war in a BBC interview to be illegal. The vast majority of international lawyers and historians confirm Annan's view: According to Resolution 1441 , only the Security Council would have been empowered to determine the material breach of the conditions by Iraq and to resolve the serious consequences resulting therefrom. In their view, previous resolutions 678 (which had been implemented in 1991) and 687 (which did not threaten military consequences) did not provide a legal basis. Because of the provisions of the UN Charter and the lack of a UN mandate , the Iraq war is therefore considered to be an illegal war of aggression that violates international law. Because the United States does not recognize the International Criminal Court, no legal consequences are in sight.
Several acts of war by Turkey in northern Syria , such as the Turkish military offensive on Afrin in 2018 and, in particular, the Turkish military offensive in northern Syria in 2019 , have recently also been assessed as wars of aggression, mainly due to the lack of a UN mandate. The Turkish leadership described these operations as legal self-defense against a terrorist threat. The Scientific Services of the German Bundestag , however, came to the conclusion that Turkey is acting contrary to international law and wrongly invoking the right of self-defense.
After the Second World War ended and the Nazi regime collapsed, the main German war criminals were tried in the Nuremberg trials . They were charged with three groups of offenses, including crimes against peace. All three set standards for the further development of international criminal law . Article 6 of the Statute of the Nuremberg International Military Tribunal of the Allies following definition used:
"Crimes against peace: namely: planning, preparing, initiating or carrying out a war of aggression or a war in violation of international treaties, agreements or assurances or participation in a common plan or in a conspiracy to carry out one of the aforementioned acts."
In the preparation of the Nuremberg Trials, the criminal liability of wars of aggression was the main point of contention between the Allies. An agreement with the Soviet Union only came about after a restrictive clause had been included in the introductory sentence of Article 6, which explicitly only considered the states of the European Axis powers .
The Nuremberg Trials rely on the London Statute to prosecute crimes against peace . In the judgment of October 1, 1946, the judges ruled that “the war is contrary to international law” on the basis of the Paris Treaty of August 27, 1928, known as the Briand-Kellogg Pact. What was new about the Nuremberg Statute was not that wars of aggression were outlawed. The criminal liability was new. Before that, not individuals, but only states were obliged to refrain from acts of aggression in accordance with their international treaties . In the Nuremberg trial of the major war criminals , this individual criminal responsibility was denied by the defendants' defense lawyers because this pact did not contain any criminal law provisions. Therefore, they accused the court of winning justice . Similar-minded lawyers also took this view. The Court rejected these central arguments of the defense:
“It has been stated that international law refers to acts of sovereign states and does not provide for punishment of individuals; and further that where the act in question is an act of state, those persons who carry it out bear no responsibility of their own, but are protected by the doctrine of the sovereignty of the state. [...] It has long been recognized that international law imposes duties and obligations on individuals as well as states. "
He pointed out that in the past the Hague Land Warfare Regulations and other international regulations were used as a basis for punishing individuals, although they did not contain any regulations. In accordance with this approach to the Hague Land Warfare Regulations, the Briand-Kellogg Pact now becomes the basis for the punishment.
The legal basis of the judgment is problematized in legal scholarly discourse, since the Briand-Kellogg Pact declared wars of aggression to be contrary to international law, but did not penalize violations : the criminality of wars of aggression was neither explicitly formulated, nor was a criminal norm established. This pact also lacked clear definitions of war of aggression and war of defense. The historian Andreas Toppe is of the opinion that "a criminal liability under international law for waging wars of aggression on a legal positivist and customary basis cannot be justified". The legal scholar Otto Kimminich , on the other hand, takes the view that the right to self-defense, which the Briand-Kellogg Pact left an attacked state, presupposes the criminality of war of aggression, because self-defense and emergency aid can only exist against criminal acts. According to Gerhard Werle , serious violations have always been considered punishable under international martial law, even if they had not previously been explicitly penalized.
The Nuremberg judgment is now considered a legal precedent for assessing wars of aggression.
- Kerstin Wolny: Is the crime of aggression punishable under today's international law? Critical Justice 2003, p. 48 ff.
- Hendrik Simon: The Myth of Liberum Ius ad Bellum: Justifying War in 19th-Century Legal Theory and Political Practice . In: European Journal of International Law . tape 29 , no. 1 , May 8, 2018, ISSN 0938-5428 , p. 113-136 , doi : 10.1093 / ejil / chy009 ( oup.com [accessed January 26, 2020]).
- Georg Dahm , Jost Delbrück , Rüdiger Wolfrum : Völkerrecht , Vol. I / 3: The forms of action under international law. The content of the international community. De Gruyter Recht, Berlin 2002, ISBN 3-89949-024-X , p. 1033 f. (accessed via De Gruyter Online).
- UN definition of aggression - Resolution 3314
- Thomas Fischer: Penal Code with ancillary laws (= Beck'sche KurzComments , Vol. 10). 58th edition, CH Beck, Munich 2011, § 80 Rn. 8th.
- Thomas Fischer : Penal Code with ancillary laws (= Beck's short comments , vol. 10). 58th edition, CH Beck, Munich 2011, § 80 Rn. 3.
- Martin Singe: "Preparing a war of aggression" has been converted into "Crimes of Aggression" , Heise online, January 14, 2017.
- Florian Rötzer : Section 80 of the German Criminal Code “Preparing a War of Aggression” has been deleted since January 1, 2017 , Heise online, January 7, 2017.
- Erich Follath, Siegesmund von Ilsemann, Alexander Szandar: The slightly different war. In: Der Spiegel , No. 2, 2000, pp. 134 ff.
- Bulgaria Leaked Milosevic's Kosovo Ethnic Cleansing Plan in 1999, www.novinite.com, January 9, 2012, archived from the original on February 28, 2013. With reference to the TV documentary The Secret History of the Horseshoe Plan (Bulgarian: Тайната история на плана "Подкова") from BTV. http://www.novinite.com/view_news.php?id=135554 ( Memento from February 28, 2013 on WebCite )
- Stephan Bierling : History of the Iraq War . The fall of Saddam and America's nightmare in the Middle East . CH Beck, Munich 2010, ISBN 978-3-406-60606-9 , p. 53 and p. 96.
- Ewen MacAskill, Julian Borger: Iraq war was illegal and breached UN charter, says Annan . In: The Guardian . September 16, 2004, ISSN 0261-3077 ( theguardian.com [accessed March 8, 2020]).
- Annan: Iraq war illegal. September 17, 2004, accessed March 8, 2020 .
- Christian Dominice: Some legal Aspects of the Military Operation in Iraq. In: Jeremy Brecher and others (eds.): In the Name of Democracy: American War Crimes in Iraq and Beyond. 2007, p. 34.
- Stephan Bierling: History of the Iraq War: The Fall of Saddam and America's Nightmare in the Middle East. Beck, Munich 2010, ISBN 978-3-406-60606-9 , p. 84 ( books.google.de ); Clemens E. Ziegler: NATO war in Kosovo in 1999 and war in Iraq in 2003: international law investigation into the universal ban on violence and its exceptions. Peter Lang, Frankfurt am Main 2009, ISBN 3-631-58021-5 , p. 354; Andreas von Arnauld, Michael Staack: Security versus Freedom? Berliner Wissenschafts-Verlag, Berlin 2009, ISBN 978-3-8305-1705-4 , p. 15; Kai Ambos, Jörg Arnold (Ed.): The Iraq War and International Law. Berliner Wissenschafts-Verlag, 2004, ISBN 3-8305-0559-0 , p. 142.
- German Bundestag | Scientific services: Elaboration »Aspects of international law of the Turkish military operation“ Source of Peace ”in Northern Syria« from October 17, 2019.
- Annette Weinke : The Nuremberg Trials . CH Beck, Munich 2006, ISBN 3-406-53604-2 , p. 23.
- Otto Trifterer: Inventory of international criminal law. In: Gerd Hankel, Gerhard Stuby (ed.): Criminal courts against crimes against humanity. Hamburger Edition, Hamburg 1995, ISBN 3-930908-10-7 , number of pages missing; Annette Weinke: The Nuremberg Trials . CH Beck, Munich 2006, p. 57.
- Quoted from Gerhard Stuby: International criminal jurisdiction and state sovereignty. In: Gerhard Stuby, Gerd Hankel (Hrsg.): Criminal courts against crimes against humanity. 1995, p. 451.
- Annette Weinke: The Nuremberg Trials . CH Beck, Munich 2006, p. 54 ff.
- Gerhard Werle: International Criminal Law. Mohr Siebeck, Tübingen 2012, p. 11, Rn. 24.
- Andreas Toppe: Military and international law. Oldenbourg, Munich 2008, p. 53 (accessed via De Gruyter Online).
- Otto Kimminich: Introduction to international law. 2nd edition, KG Saur, Munich / New York / London / Paris 1983, ISBN 3-598-02673-0 , p. 90 (accessed via De Gruyter Online).
- Gerhard Werle: International Criminal Law. Mohr Siebeck, Tübingen 2012, pp. 11-14, Rn. 22-26.
- Gerhard Werle, Florian Jessberger: Völkerstrafrecht. Mohr Siebeck 2007, ISBN 978-3-16-149372-0 , p. 525 ff.