Defend International Law! A Guide for German Peace and Security Policy

Abstract

Germany is debating Russia’s war of aggression and the war in Gaza: While there is much talk of war, there is little discussion of peace. In addition, international law – a classic building block for an international peace strategy – is now up for debate. This article counters those ‘realistic’ contributions to the debate that argue solely for deterrence and against the naive dream of a legalization of international relations by arguing that international law is an indispensable guide for German peace and security policy. It does not muddy the debates – it structures them. 

Germany should work to strengthen international law at the level of jus contra bellum, jus in bello, and arms regulation. This will result in more complex peace strategies than those currently being discussed.

Zeitenwende vs. Rule-Based International Order?

The “historic turning point” marked by Russia’s war of aggression against Ukraine as well as Israel’s war in Gaza following the Hamas massacre of 7 October 2023 – certainly the most polarizing military conflicts in Germany today – highlight the extent to which peace, and with it international law, is under attack. Its central norms are being blatantly violated: the general prohibition of the use of force under Article 2 (4) of the UN Charter (ius contra bellum) as well as the core principles of International Humanitarian Law (IHL).

At the same time, the geopolitical ambitions of Putin, Trump, and Xi signal a return to neo-imperialist power politics. Should we therefore bid farewell to the ‘liberal dreams’ of the legalization of international relations? Are ‘Zeitenwende’ and “rule-based international order” incompatible with each other after all?

Not at all. For a progressive, green foreign and security policy – one that combines defense capabilities with obligations under international law and human rights – international law must remain an indispensable guide. This is especially true in strengthening the concept of peace in German debates. International law does not blur discussions on foreign and security policy; it structures them.

Peace or Security? On a False Dichotomy

There is no way to talk about war without addressing peace. The concept of peace is too important to be left to those who want to exploit it for their own ends. Surprisingly, however, this is exactly what has happened in recent years: the overly simplistic polarization between supposed ‘warmongers’ and ‘peace dreamers’ has enabled populist parties such as the AfD and the BSW to appropriate this concept. 

There is no way to talk about war without addressing peace. The concept of peace is too important to be left to those who want to exploit it for their own ends.

In contrast, and in the spirit of this conference, we must dare to think and talk about peace again – and reclaim the concept. Furthermore, it is the task of politics, the public, and academia to put peace back at the centre of the debate about the future of Europe. This must involve more than the question of arms deliveries, which has overshadowed everything else in recent debates on the war in Ukraine. Such a portrayal limits the debate to questions of security and military capability. However, peace and security are not mutually exclusive. Talking about arms deliveries or deterrence and negotiated solutions is not mutually exclusive – on the contrary: historically, negotiations have always taken place during conflicts. So, this is anything but an unusual peace strategy. On the contrary: politics and academia must dare to think more about peace, even – and especially – when wars are raging. The crucial question here is: How can this be done?

International Law as a Compass

This is where international law comes in. International law has always been a key resource for thinking about what peace means in modern political practice. Its central prohibition on the use of force in Article 2(4) of the UN Charter defines peace as the absence of direct physical violence:

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations."

The prohibition of the use of force thus offers, in a sense, a narrow definition of peace as the absence of physical violence – a definition that, in view of the current violent conflicts, should constitute a minimal definition (without seeking to exclude more demanding concepts).

International law is important for clearly assessing breaches of peace: Russia’s war of aggression constitutes a clear violation of Article 2 (4) of the UN Charter. The fact that the (de)legitimizing function of international law is by no means ineffective is particularly evident in the reactions of the international community: In March 2022, 141 states condemned Russia’s aggression, and in October 2022, 143 states declared the Russian annexations in Ukraine invalid. In addition, the International Court of Justice (ICJ) ordered an immediate end to Russian violence in Ukraine in March 2022. And on March 17, 2023, the International Criminal Court (ICC) issued an arrest warrant against Putin for the illegal deportation of Ukrainian children to Russia.

A Dual Strategy

This presents Germany with a clear task: defending international law in the case of Ukraine means supporting the country financially, politically, and militarily, while at the same time making it clear that weapons are not everything. In Germany, the discussion has so far focused primarily on arms deliveries. There has been too little discussion about how peace can be achieved. This is fatal. 

This presents Germany with a clear task: defending international law in the case of Ukraine means supporting the country financially, politically, and militarily, while at the same time making it clear that weapons are not everything.

The Peace Report published by Germany’s major peace and conflict research institutes therefore proposes a dual strategy: In addition to arms deliveries, it recommends that preparations for later negotiations be made now, for example by strengthening neutral mediators or holding preliminary diplomatic talks. UN trusteeship of the occupied territories with subsequent referendums would be a conceivable scenario, albeit one with immense practical hurdles. This would strengthen international law and institutions – and at the same time reclaim peace.

Critically Monitoring ‘Rearmament’ through the Law

At the same time, the law can play an important role in the debate on Germany’s ‘rearmament’. The immense military investment currently taking place in Germany carries the risk that weapons will fall into the wrong hands. It is therefore important to counteract the militarization of society and to insist on legal controls on arms production and delivery, as well as due diligence, for which both arms manufacturers and state authorities are responsible.

To this end, the drafting of an arms export control law for a restrictive arms export policy by the federal government is of central importance. The overarching international regime of arms transfers, consisting of the Arms Trade Treaty (ATT), which has standardized common standards for the regulation of international trade in conventional arms, and the 2008 EU Common Position on Arms Exports, must be strictly adhered to and strengthened. Criterion Two of the Common Position is important here, which states that respect for human rights and international humanitarian law in the country of final destination must be considered before making an arms transfer.

Here, too, international law can serve as a helpful compass: defense capabilities and arms deliveries to Ukraine are right – but not without strict legal controls. Arms deliveries to states that violate IHL, on the other hand, are not. In this respect, a cessation of arms exports to Israel that could be used in Gaza is the right thing to do. Under international law, Israel’s actions are increasingly being deemed disproportionate, and experts are therefore calling for an immediate end to the violence. A case before the International Court of Justice is examining whether Israel is committing genocide in Gaza. 

Overcoming Double Standards 

A frequently heard criticism of German foreign policy – especially in comparison to its politics regarding the wars in Ukraine and Gaza – is that it applies double standards. Indeed, violations of International Humanitarian Law and human rights in all conflicts must be condemned regardless of the relations between Germany and the states involved. Otherwise, Germany will lose even more credibility in its traditional support for international criminal justice after 1945.

Friedrich Merz’s statements in February 2025 that Netanyahu could visit and leave Germany despite the ICC arrest warrant, and his statement in June 2025 that Israel had done ‘the dirty work for all of us’ with its military strikes against Iranian nuclear facilities must be rejected.

Friedrich Merz’s statements in February 2025 that Netanyahu could visit and leave Germany despite the ICC arrest warrant, and his statement in June 2025 that Israel had done ‘the dirty work for all of us’ with its military strikes against Iranian nuclear facilities must be rejected. International law does not muddy the debate here – it structures it. In this respect, it is welcome news that Friedrich Merz has since taken a more critical stance on the war in Gaza and is restricting arms exports to Israel – even if this has earned him criticism from within his own party.