What We Lost in the Skies Above Tehran

Lately, it has become en vogue all across Europe to ponder, worry about, or declare the imminent death of international law, a trend that has only grown stronger since first Israel and then the United States attacked Iran in June. On occasion, the tone of the professional commentariat has verged on mocking and even spiteful, especially when coming from the (neo-)realist corner of the political sciences. Esteemed political theorist Herfried Münkler, for instance, postulated the complete irrelevance of legal questions in the current geopolitical constellation. Carlo Masala, in a widely read essay for weekly Die Zeit, derided anyone who insists on compliance with established rules on the use of force as behaving like an unruly, immature adolescent unfit for the cold world out there and doing nothing more than “instrumentalising” the vocabulary of international law. If this sounds like a somewhat ghoulish argument recovered from the ruins of Fallujah, that’s because it is. Against this background, I scrutinise the German discourse surrounding Israel’s actions and its implications for the international legal order, with a focus on recent public statements by two of the state’s highest representatives.

That the debate has taken on particular salience in Germany partly comes down to the fact that, as Helmut Aust and Heike Krieger noted on this website, the Overton window of permissible discursive positions in that country seems to have shifted dramatically in the recent past. Since the publication of their op-ed in February, statements emerging from Berlin’s government circles have only become more troubling, above all in response to Israel’s and the U.S.’s use of armed force against Iran in June and in the context of the ICC arrest warrant for Israeli Prime Minister Benjamin Netanyahu. There is a certain irony in the fact that in less than two months’ time, the German capital, of all places – Aust’s and Krieger’s Freie Universität – will host the annual conference of the European Society of International Law, one of the premier gatherings of the discipline, devoted to the theme “Reconstructing International Law” after “a rough period of turbulence” for the last decade. It is, as Ntina Tzouvala put it aptly, not only a world but a discipline in crisis.

Violations of the law and normative stability

The crisis isn’t entirely the discipline’s own fault, however. The problem with erudite musings such as Münkler’s or Masala’s is not the implication that, in light of contemporary geopolitical realities, international law is not and cannot be fully operationally closed toward the system of global politics, to borrow Niklas Luhmann’s terminology. The problem is that irrespective of whether other, non-legal considerations – questions of strategy, politics, or “legitimacy” – are in play when a state decides to act, breaches of the law still need to be called out as such, or else the rule will erode. As observed by Thomas M. Franck in the aftermath of the 2003 Iraq War, “if the community of states fails to register its displeasure with the law’s violation in some significant fashion, it would be arguable that the norm is being allowed to lapse into meaninglessness”.¹⁾

Accordingly, it’s not the breach itself that threatens normative stability, it’s how the international community responds.²⁾ This could be witnessed after Russia’s full-scale invasion of Ukraine in February 2022, which was met with a broad and overwhelming reaction at the United Nations to the blatant act of aggression.³⁾ The main organs of the German state were likewise unambiguous. President Frank-Walter Steinmeier publicly chided Moscow for its “brutal” violation of international law, warning that war crimes may not remain unpunished because “international law is not a blunt sword that you can simply ignore”. Chancellor Friedrich Merz, then still in his function as whip of the Christian Democrats in the Bundestag, co-authored a parliamentary motion that condemned “Russia’s brutal aggression against Ukraine in the strongest terms”. Given these rightfully emphatic statements, it is even more glaring how miserably these same politicians failed when asked to uphold the prohibition of the use of force after Israel and the United States sent their bombers to Iran in June.

Israel’s justifications and the international response, then and now

Although not explicitly invoking a right to self-defence pursuant to Article 51 UN Charter, Israel, in its letter to the UN Security Council from 17 June, did offer a justification for its armed attack on Iran, citing “the last window of opportunity to prevent Iran from acquiring nuclear weapons” and “Iran’s ongoing aggression” to have made it inevitable to act “to defend its security and very existence”. Israel’s approach thus differed significantly from 2007, when its fighter jets destroyed the Al Kibar nuclear reactor in Syria without acknowledging the operation at all. Although such covert action is highly problematic from a legal perspective, given that the refusal to offer a legal justification carves out a sphere of lawlessness that risks undermining content and relevance of the prohibition of the use of force,⁴⁾ in turn it leaves either interpretation or development of the rule unaffected.⁵⁾ Unacknowledged violent conduct, as reprehensible as it is, is certainly less corrosive than an unlawful use of force out in the open that nonetheless goes unanswered. And despite Israel’s rationalisation, its attacks against Iran were just that (as was, by extension, the subsequent bombardment by the U.S.): unlawful uses of force. Not only did the state rely on an untenably expansive interpretation of the right to self-defence, it also presented no evidence “not easily open to misinterpretation or fabrication”, as Louis Henkin put it,⁶⁾ to support its claims.

For this reason, an unambiguous and public response to the unlawful use of force against Iran was called for. What such a process ideally looks like was demonstrated in June 1981 after an Israeli airstrike had taken out the Osirak nuclear reactor in Iraq. In its letter to the UN Security Council, Israel sought to justify its operation with arguments uncannily reminiscent of today, citing reliable intelligence that Iraq was seeking the development of nuclear weapons that it would use against Israel, which is why it “decided to act without further delay to ensure our people’s existence”. Yet on 19 June, the Security Council unanimously passed a resolution that “strongly condemn[ed] the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct”. During the debate preceding the vote, the representative of the United States, while emphasising the close bond between her (Republican) government and the state of Israel, and acknowledging the threat of Iraqi nuclear proliferation, insisted that “diplomatic means available to Israel had not been exhausted and the Israeli action has damaged the regional confidence that is essential for the peace process to go forward”.

Germany’s abject failure to uphold international law

Nothing of this sort, of course, happened this time. Among the numerous Western voices who bungled the matter (back home, NATO Secretary General and Trump sycophant-in-chief Mark Rutte did not fare any better), Germany’s President Steinmeier and Chancellor Merz gave particularly disturbing statements in two separate media interviews in late June. Merz – having caused much indignation as well as earned plaudits during the G7 Leaders’ Summit in Canada in mid-June when he praised Israel for having done the “dirty work” for the rest of us – explicitly refused to walk back his off-the-cuff remarks in an interview with Süddeutsche Zeitung on 27 June. Asked in a follow-up question whether this implies that, according to him, Israel simply had to violate international law, the chancellor – after confirming that Germany is “of course” bound by international law and suggesting that it was not for him to legally assess the attacks against Iran – countered with a list of questions that regurgitated a string of soundly refuted doctrinal constructions previously made in various academic fora, including a reference to the “existential” yet entirely ambiguous and in no way imminent threat of an attack from a nuclear bomb in the hands of Tehran.

Not to be outdone, Steinmeier, in an interview with public broadcaster Deutschlandfunk two days later, began by pontificating that “especially us Germans should declare the international legal order a part of our own identity, which means that we may not ignore when international law is not only disregarded but also derided”. (These remarks were in reference to the question of Netanyahu potentially visiting Berlin despite his outstanding ICC arrest warrant; lack of space prevents me from addressing that particular issue, which, with slightly different particulars, the president and chancellor handled just as terribly). If only he had left it at these empty platitudes. Honouring the Social Democratic tradition of abandoning principle when it would really count, however, the president continued by pointing to scholarly disagreements “in the papers” as to the lawfulness of Israel’s actions before likewise endorsing the flawed doctrine of pre-emptive self-defence, a legal position he had previously thoroughly rejected as Germany’s foreign minister in the context of the 2003 invasion of Iraq.

It is quite a trite insight that international law is bound to exhibit an immanent indeterminacy that is always vulnerable to being invoked to justify just about any behaviour absent centralised and consistent enforcement mechanisms – or a “guardian”, in Münkler’s terms. That is hardly an excuse for a head of state to evade clear positioning by pointing to divergent opinions in scholarship. More importantly, it doesn’t follow that legal arguments don’t matter in international political discourse; by delimiting what becomes accepted among the community of states, the law does exert stabilising and, yes, constraining effects. Moreover, a look across the Atlantic at the Trump administration’s recent actions toward the U.S. judiciary should suffice to demonstrate that the effectiveness of any law, at any time, ultimately hinges on political buy-in. Law is not some transcendental entity that exists independent of the people who are expected to apply, interpret, and follow it. This is why the hapless public statements by Merz and Steinmeier will prove so disastrous.

The price of Berlin’s hypocrisy

If the project of international law falters, it won’t be because it was thrown into a world where raw power reigns supreme, as the realists would have it. It will be because the people who were in a position to actualise it started wavering the moment consistency and sincere conviction became politically inconvenient, amid Germany’s rabid and delusional current media environment and due to their frankly inexcusable fealty to Netanyahu and his genocidal policies (which reached a new low on 21 July, when Germany refused to join a call by 28 states for an immediate ceasefire in Gaza). Paying mere lip service to the importance of international law and Berlin’s ostensibly steadfast commitment to it, as offered by Steinmeier and Merz, is devoid of any consequence. The attempts by the highest and the third-highest representatives of the Federal Republic to limit or undo the damage caused by previous statements were clumsy, unprincipled, and insufficient. As laid out in perfect detail by Marko Milanovic, Adil Haque, and Mary Ellen O’Connell, the armed attacks carried out by Israel and the United States against Iran were plainly illegal. Their allies should have said so clearly and publicly, just like the UN Security Council unanimously did in 1981, even if they happened to otherwise think that the attacks were strategically opportune or politically legitimate. That is the difference between international diplomacy and an academic debate. By refusing to condemn the attacks, Germany’s two leading politicians have failed in their constitutionally mandated obligation to uphold international law.

Bad arguments reverberate. Debates at the United Nations after Russia’s full-scale invasion of Ukraine in 2022 already palpably suffered from the echoes of the legally untenable rationalisations based on factually fraudulent premises that the Bush administration had offered to justify its aggressive use of force against Iraq a decade earlier. After voting in favour of a (vetoed) Security Council resolution to call out Russia’s act of aggression, the Kenyan ambassador to the UN reminded the gathered diplomats of “the justifications for past interventions by other powerful States… Even as deserved condemnations ring out today about the breach of Ukraine’s sovereignty, history’s condemnations are allowed silence in this room”. The damage that Merz and Steinmeier have inflicted on both Germany’s international credibility and the order put in place with the founding of the United Nations will likewise be felt for decades to come. As things stand right now, as far as the jus contra bellum is concerned, there might not be much left to reconstruct when the community of international law scholars meets up in Berlin in September. In that, the realists may find reason to rejoice. They, too, will come to miss it once it’s gone.