International martial law

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As international law of war are collectively two different aspects of public international law referred to. On the one hand, this area of international law includes the right to war ( ius ad bellum ), i.e. questions of the legality of military force . On the other hand, the international law of war also includes the law in war (ius in bello) , i.e. rules for dealing with combatants , non-combatants, cultural property and other regulations that are intended to reduce the suffering and damage associated with a war or to limit it to an unavoidable level. This part is collectively referred to as international humanitarian law .

The right to war (ius ad bellum)

Today wars are fundamentally contrary to international law. This follows from Article 2, paragraph 4 of the Charter of the United Nations . This regulation reads: "All members refrain in their international relations from any threat or use of force directed against the territorial integrity or the political independence of a state or otherwise incompatible with the aims of the United Nations."

Criminal Trial at the International Court of Justice in Nuremberg (September 30, 1946)

Up until the Briand-Kellogg Pact of 1928, the legal status was controversial: In contrast to what was wrongly assumed in the history of international law, there was no right of the sovereign to wage war freely in the sense of liberum ius ad bellum. However, war was not yet generally forbidden. With the Nuremberg trial against the main war criminals in 1945/46, the planning, preparation, initiation or implementation of a war of aggression was tried for the first time as a leading crime before an international military tribunal in a constitutional process and a precedent was set. However, these laws did not yet exist at the time of the act.

Despite the general ban on war, there are several exceptions to the current prohibition of violence:

  • Intervention is generally permissible under international law if the state on whose territory the intervention is to take place agrees. In the case of such consent, the widespread view is that the intervening state does not make use of force illegal. Most of the Bundeswehr missions abroad decided on in accordance with the Parliamentary Participation Act are (also) based on the consent of the state concerned. (In the 1999 Kosovo war , however, there was no consent from the Federal Republic of Yugoslavia .)
  • Article 51 of the UN Charter allows self-defense in the event of an armed attack until the Security Council has "taken the necessary measures". The scope of the right of self-defense is particularly controversial in the case of so-called preventive self-defense.
  • The UN Charter legitimizes military actions if there is a mandate from the UN Security Council ( Chapter VII UN Charter ; “peace-making” or “peace-keeping” measures). All current foreign deployments of the German Armed Forces decided in accordance with the Parliamentary Participation Act are (also) based on a mandate from the UN Security Council (special case Kosovo, for which there was no UN mandate).
  • It is controversial whether an intervention to rescue own nationals is exempt from the ban on violence, in particular because such an exception violates the ban on violence. The " Operation Libelle " in Albania in 1997, in which the Bundeswehr intervened to rescue German citizens in Albania, is in part seen as conforming to international law, especially because the intervention followed an invitation from the Albanian government. In addition, it was an encroachment on the territory of a failed state , a state in which government power had already ceased, so that international criticism of the action was hardly to be expected. However, operations that have taken place without an invitation are controversial, such as the " Operation Entebbe " carried out by Israel in Uganda in July 1976.
  • Another exception to the prohibition of violence - which, however, has almost no practical application - is permissible under Article 52 of the UN Charter ( regional agreements ). The lack of practical relevance is due in particular to the fact that this can legitimize an intervention within the area of ​​application of the regional agreement, but not outside this area.
  • In the literature of international law, it is controversial whether a further exception to the prohibition of violence in the case of so-called humanitarian intervention can be made beyond the wording of the UN Charter, i.e. H. Whether an intervention without a mandate from the UN Security Council and without the consent of the state concerned to avert certain humanitarian grievances (example: Kosovo conflict in 1999) can be justified by recourse to natural law with a universal morality.
  • In certain cases, an exception to the ban on violence can also be given if the affected state has granted others the right to intervene in an international treaty - for example in the event of serious human rights violations (so-called intervention clause). In this case, there is not necessarily a current consent of the state concerned (see point 1), but in any case an anticipated consent.
  • In theory, the UN's enemy state clauses in Articles 53 and 107 and as a half-sentence in Article 77 of the United Nations Charter , according to which the signatory states could impose coercive measures against enemy states of the Second World War without special authorization from the UN Security Council, are still valid the "enemy states" should again pursue an aggressive policy. These clauses mainly relate to Germany, Japan and Italy. However, they have been viewed as obsolete in international law, at the latest since the accession of these states to the United Nations. De jure, however, they are still in force, mainly because the procedure for changing the UN Charter is very time-consuming and could arouse desires for changes in other areas, which the majority of UN member states would like to avoid.

The law in war (ius in bello)

Large parts of the law in war are summarized today under the heading of humanitarian international law . Acts of war are only permitted within the limits of the international agreements of the Hague Conventions , in particular the Hague Land Warfare Regulations , and the Geneva Conventions on the Improvement of the Lot of the Wounded, Sick and Shipwrecked by the Armed Forces, on the Treatment of Prisoners of War and on the Protection of Civilians in Times of war. In particular, an attack on these protected groups of people is inadmissible and constitutes a war crime .

Development of the term since the end of the Second World War

In the second half of the 20th century, a process of change developed around the classic concept of international war law , which is currently ongoing. As part of this show reinforced tendencies usually only for the core of international humanitarian law, but partly also for the entire ius in bello of or even the entire law of war the term law of armed conflict ( Engl. Law of armed conflict ) to use. There are several possible reasons for this:

  • Since the Kellogg-Briand Pact (1928) and the consequent condemnation of aggressive war , but at least since the introduction of the general prohibition of force with type 2 no. 4. UN Charter are (1945) war in the classic sense - that the discharged by force of arms, open conflict between states - hardly justifiable to the international community. In democratic societies in particular, speaking too openly of war can have considerable domestic and social consequences (see for example Horst Köhler: Controversy about deployments abroad ).
  • The four Geneva Conventions of 1949 also introduced the concept of armed conflict , the existence of which means that the conventions can be used as an alternative to a declared war . Since then, all major international humanitarian law agreements, and in some cases also those in other areas of international law , have adopted the concept of armed conflict .
  • Correspondingly, state practice in the course of the 20th century has shown that even in the classical state war the requirement of a formal declaration of war and thus the legal state of war has become meaningless for the application of the ius in bello (see Declaration of War: History ). Furthermore, in the case of conflict between states and non-state actors, which is increasingly occurring today, there is no question of war in the classic sense.

As already indicated, however, the term law of armed conflict - parallel to armed conflict - is not used uniformly. There is clarity insofar as the term at least includes all rules of international law that apply in the event of an armed conflict . On the other hand, it is unclear to what extent the terms war and international law are being displaced and consequently the law of armed conflict includes, in particular, the law of neutrality or even the ius ad bellum .

Enforcement of applicable law

To check international legal disputes is The Hague of the International Court of Justice has established that speaks right in questions of international law of war. According to Article 92 of the UN Charter, the ICJ is the main judicial body of the UN. Nevertheless, not every issue relevant to international warfare law can be examined by the ICJ; rather, it depends on the specific individual case to what extent the ICJ can decide on a matter. In May 2008, for example, Germany submitted to the mandatory jurisdiction of the IGH by submitting a declaration of submission to the United Nations, but excluded the area of ​​Bundeswehr missions abroad from the declaration of submission. As a result, the IGH's responsibility for deployments abroad by the Bundeswehr cannot be derived from the German declaration of submission, but rather from other legal bases.

With the Rome Statute for the International Criminal Court , an international court has been created to punish crimes against the international law of war. German law has adopted this development of international criminal law in the form of an international criminal code.

Certain violations of the international ius ad bellum are included in the criminal offense of the crime of aggression in Article 8 bis of the Rome Statute of the International Criminal Court . Since 2017 the ICC has been able to exercise its jurisdiction over aggression crimes. The currently applicable German criminal law (as of April 2015) makes “preparing for a war of aggression” in Section 80 of the Criminal Code punishable. This regulation only applies to wars of aggression in which Germany is involved. The Federal Ministry of Justice is currently working on the codification of the crime of aggression in the International Criminal Code .

Certain violations of the international law ius in bello are included in the criminal offense of war crimes . The criminal liability can arise both under the statute of the International Criminal Court and under national law - e.g. B. due to the German International Criminal Code. The principle of universal law applies to war crimes . Corresponding acts can thus be prosecuted by a state even if there is no domestic connection.


Originally, the war was largely unlawful , but more or less non-binding customs developed.

At the time of the Romans , Cicero coined the Latin legal phrase inter arma enim silent leges : The laws are silent under arms. On the other hand, Caesar was criticized in Rome for his warfare in Gaul. Even if this was done by political opponents, it shows the existence of certain moral ideas about the conduct of war. At the transition from antiquity to the Middle Ages, Augustine of Hippo developed the concept of the bellum iustum , the just war .

In the High Middle Ages, the term bellum sacrum , holy war, was even briefly used in connection with the crusades . The emerging international law took up the concept of the bellum iustum in the modern age with the Spanish late scholastics and Grotius . In particular, the question of whether innocent people should be killed in war was controversial. In the age of the Cabinet Wars, the term became a mere formula that could easily be used once a casus belli was found. In the 19th century, finally, the doctrine of ius ad bellum in the sense of a right to free warfare became established.

The first attempt at codifying rules of the international martial law, albeit limited in time and location, was the Lieber Code , which applied to the troops of the northern states during the American Civil War . In the form of international and permanent agreements, international humanitarian law began with Dunant's experiences after the Battle of Solferino , which led to the Geneva Convention on his initiative . At the Brussels Conference of 1874 , attempts were first made to lay down the laws and customs of war in the form of an internationally binding convention, but this was unsuccessful due to the lack of later ratifications of the Brussels Declaration. Another important document in the history of martial law was the 1880 from de Institute Droit international adopted Oxford Manual , under the title Manuel des lois de la guerre sur terre summarizing important ( "The rules of land warfare") rules for warfare. This set of rules was intended primarily as a proposal to the states at the time for corresponding national legislation. At the end of the 19th century, the Hague Peace Conferences, initially planned as disarmament conferences, led to far-reaching agreements on warfare and the establishment of the first international court of arbitration.

The experiences of the First World War led to a change in the conception of ius ad bellum , so that the Kellogg Pact could come about , which fundamentally forbade wars of aggression . The League of Nations was supposed to ensure a peaceful order, but this failed. After the Second World War, the Charter of the United Nations in 1945 brought about a fundamental reorganization of international law.

In view of the numerous deaths among the civilian population, it was considered necessary to improve their protection. In particular, the protection of civilians from reprisals was the primary goal of the 1949 Geneva Conventions, analogous to that of prisoners of war. During the war, the German occupying powers in particular committed countless mass murders of civilians under the pretext of reprisals. In the context of post-war justice, these murders were classified as fundamentally contrary to international law; only as an extreme means of maintaining public order were so-called "expiatory measures" considered theoretically permissible under certain very narrow conditions. However, there was no longer uniform case law before the protection of civilians was made a legal norm by the Geneva Convention . This protection was expanded in the Additional Protocols in 1977, so that reprisals against people are largely excluded today. In 2002 the International Criminal Court was created.


Web links

Individual evidence

  1. 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 ( [accessed April 8, 2019]).
  2. ^ Gerhard Werle, Florian Jessberger: Völkerstrafrecht , Mohr Siebeck, Tübingen 2007, ISBN 978-3-16-149372-0 , p. 525 ff.
  3. Exceptions taken from: Christian Starck (Ed.), Can there still be “just wars” today? , Wallstein-Verlag, 2008, pp. 116-119 with additional references
  4. BVerwG 2 WD 12.04, judgment of June 21, 2005. Federal Administrative Court, accessed on February 5, 2018 .
  5. See e.g. BRP DiMeglio u. a., Law of Armed Conflict , Charlottesville 2012 ( PDF , accessed January 10, 2016); ICRC, The Law of Armed Conflict - Basic Knowledge , Geneva 2002 ( PDF , accessed January 10, 2016).
  6. See e.g. BR Hofmann, The Law of Armed Conflicts (lecture notes), Frankfurt 2012 ( PDF , accessed on January 17, 2016).
  7. See Art. 1 of Resolution No. 1 of the Institut de Droit international , whose definition of the “ armed conflict ” also includes the “ state of war ”; according to Knut Ipsen , in: ders., Völkerrecht , 6th edition, Munich 2014, § 58 Rn. 7 this gives reason to assume that “war” will no longer have a separate legal function compared to “armed conflict”.
  8. In the non-international armed conflict only that of the common Article 3.
  9. Overview by Knut Ipsen, in: ders., Völkerrecht , 6th edition, Munich 2014, § 58 Rn. 6th
  10. Cf. C. Fröhlich / M. Johannsen / B. Schoch / A. Heinemann-Grüder / J. Hippler , in: dies., Friedensgutachten 2010, Munich 2010, p. 15 f.
  11. See Knut Ipsen, in: ders., Völkerrecht , 6th edition, Munich 2014, § 58 Rn. 7 f.
  12. a b ( Memento from June 17, 2009 in the Internet Archive ) (PDF)
  13. ^ AR Albrecht: War Reprisals in the War Crimes Trials and in the Geneva Conventions of 1949. In: The American Journal of International Law , Vol. 47, no. 4 (Oct. 1953), pp. 590-614.