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Case Note – Was the war on Iraq Illegal? – The Judgment of the German Federal Administrative Court of 21st June 2005

By Nikolaus Schultz
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A. Introduction

The US/UK-led war against Iraq, and Germany’s contribution to this war, met with gravierenden völkerrechtlichen Bedenken (grave concerns in terms of international law), as evidenced by the extensive judgement of the Bundesverwaltungsgericht (BVerwG – German Federal Administrative Court) from 21 June 2005. This is a landmark decision in at least two respects. First, it appears that the BVerwG’s opinion is the first on the legality of the war on Iraq by a court of law. Second, the Court took a broad view regarding the question of law with which it had been presented: under what circumstances may an army officer lawfully refuse to follow the order of a superior on the grounds of his constitutional right to freedom of conscience?

The outcome of the judgement may, therefore, have wide repercussions on the functioning of the German Federal Armed Forces (“Bundeswehr”). In this note I will only discuss the former issue at some length and deal with the latter merely to the extent that it is necessary for a proper understanding of the reasoning of the BVerwG. As will become apparent in the following, the BVerwG did not take as clear-cut a position with respect to the question of the legality of the war on Iraq as a first glance might suggest. The Court decided this issue only obiter dicta because it interlinked this issue with the personal decision the respondent made while exercising his right to freedom of conscience.

B. The Facts of the Matter and the Outcome of the Case

The respondent, an army officer in the rank of a major, was subjected to disciplinary proceedings in a military court, inter alia, for refusing to obey an order to participate in the development of a software programme for a military weapons system. This IT-project is aimed at enhancing the efficiency of the German Federal Armed Forces. The respondent did not follow the order of his superiors,...