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Germany v. N.

Published online by Cambridge University Press:  27 February 2017

Daniel Bodansky  and
Ilja Baudisch
Ilja Baudisch
Affiliation:
University of Heidelberg
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Extract

Germany v. N. Decision No. 2 WD 12.04. At <http://www.bverwg.de>.

Bundesverwaltungsgericht (German Federal Administrative Court), June 21, 2005.

On June 21, 2005, in Germany v. N, the Federal Administrative Court of Germany (Bundesverwaltungsgericht) acquitted a soldier charged with disobeying an order in violation of his military duty of obedience and loyal service. The soldier, a major in the Federal Armed Forces (Bundeswehr), had refused to participate in a military software project that he feared could support Operation Iraqi Freedom. The major based his refusal on his belief that the Iraqi war was illegal and that, as a result, he was permitted to refuse the order under his constitutional right of freedom of conscience.2 The court held that in view of the serious reservations that exist about the legality of Operation Iraqi Freedom and also about Germany's position in that conflict, the soldier's right to freedom of conscience required that he be offered alternative tasks unrelated to a war that he reasonably believed to be illegal.

Type
International Decisions
Information
American Journal of International Law , Volume 100 , Issue 4 , October 2006 , pp. 911 - 917
Copyright
Copyright © American Society of International Law 2006

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References

1 Bundesverwaltungsgericht, June 21, 2005, 120 Deutsches Verwaltungsblatt 1455 (2005). The full text of the decision is available online (in German) at <http://www.bverwg.de.

2 Article 4 of the German Basic Law (Grundgesetz) provides: “(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable . . . . (3) No person shall be compelled against his conscience to render military service involving the use of arms. Details shall be regulated by a federal law.” The Basic Law is available at <http://www.bundestag.de/htdocs_e/info/index.html.

3 Basic Law Art. 20(3).

4 Id. Art. 26(1).

5 Id. Art. 4(1), (3); see supra note 2.

6 SC Res. 678 (Nov. 29, 1990).

7 SC Res. 687 (Apr. 3,1991). As conditions of the cease-fire, Iraq was compelled to accept the destruction of all nuclear, chemical, and biological weapons; the destruction of all ballistic missiles with a range of more than 150 kilometers; and the establishment of a Special Commission to conduct inspections anywhere in Iraq.

8 SC Res. 707 (Aug. 15, 1991).

9 See, for example, Resolution 688 (April 5, 1991) concerning the establishment of a no-fly zone or Resolution 715 (October 11, 1991) concerning the inspection team to be sent to Iraq for the detection and destruction of atomic, biological, and chemical weapons.

10 SC Res. 1441 (Nov. 8, 2002).

11 Id., para. 14.

12 Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington (Apr. 24, 1841), in 29 British and Foreign State Papers 1840–1841, at 1138 (1857).

13 In this context the court quoted the former U.S. Deputy Secretary of Defense Paul Wolfowitz: “The truth is that for reasons that have a lot to do with the U.S. government bureaucracy we settled on the one issue that everyone could agree on which was weapons of mass destruction as the core reason . . . .” U.S. Dep’t of Defense News Transcript, Deputy Secretary Wolfowitz Interview with Sam Tannenhaus, Vanity Fair (May 9, 2003), at <http://www.defenselink.mil/transcripts/archive.aspx.

14 See GA Res. 3314 (XXLX), annex (Dec. 14,1974) (“Definition of Aggression”). Article 3 provides: “Any of the following acts . . . qualify as an act of aggression:... (f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third state.”

15 See Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001). Article 16 provides:

A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.

16 See Hague Convention [No. V] Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36 Stat. 2310, 1 Bevans 654.

17 North Atlantic Treaty, Apr. 4, 1949, TIAS No. 1964, 34 UNTS 243.

18 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, Jun. 19, 1951, 4 UST 1792, 199 UNTS 67.

19 See, e.g., Bundesverfassungsgericht, Oct. 29, 1975, 40 BVerfGE 276, 283–84.

20 Bundesverwaltungsgericht, July 31, 1996, in 50 Neue Juristische Wochenschrift 536, 538–39 (1997).

21 See supra note 5 and accompanying text.

22 R v. Jones, [2006] UKHL 16 (Mar. 29, 2006).

23 Bundesverfassungsgericht, Mar. 25, 2003, 108 BVerfGE 34, 41–5.

24 Section 80 of the German Criminal Code provides: “Whoever prepares a war of aggression . . . 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 of not less than ten years.”

25 See supra note 17 and accompanying text. For more details on Article 11 of the NATO Treaty, see Richard, H. Heindel, Thorsten, V. Kalijarvi, & Francis, O. Wilcox, The North Atlantic Treaty in the United States Senate, 43 AJIL 633, 649–51 (1949).Google Scholar

26 Bundesverfassungsgericht, Dec. 18, 1984, 68 BVerfGE 1, 93; see Heindel et al., supra note 25, at 645–49.

27 See, e.g., John, Yoo, International Law and the War on Iraq, 97 AJIL 563, 567–71 (2003)Google Scholar (arguing that Resolution 678 constituted only an armistice, not a peace treaty, and that the findings of Resolution 1441 allowed a resumption of the use of force); see also Jules, Lobel & Michael, Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease Fires and the Iraqi Inspection Regime, 93 AJIL 124, 127–37 (1999)Google Scholar; Michael, Byers, The Shifting Foundations of International Law: A Decade of Forceful Measures Against Iraq, 13 Eur. J. Int’l L. 21, 23–7 (2002).Google Scholar

28 Of particular relevance here is the distinction between preemptive self-defense, where the threat is imminent, and anticipatory self-defense, where the threat is in the future and not yet concrete. See Yoo, supra note 27, at 571–74; Natalia, Ochoa-Ruiz & Esther, Salamanca-Aguado, Exploring the Limits of International Law Relating to the Use of Force in Self Defense, 16 Eur. J. Int’l L. 499 (2005).Google Scholar