Why did the UN condemn Operation Entebbe?
Dr. jur., born 1964; Professor of Public Law, European Law and International Law at the University of Osnabrück.
Address: University of Osnabrück, European Legal Studies Institute, 49069 Osnabrück.
Email: [email protected]
Publications among others: The Europeanized Legal Protection Order of German Courts, Tübingen 2003; Constitutional and international law aspects of the Iraq war, Tübingen 2003, Humanitarian international law - information documents, Tübingen 2003; State immunity on the decline ?, in: Archiv des Völkerrechts, 41 (2003); Compendium of international jurisprudence, Tübingen 2004.
The basic norm of the international order
The Iraq war, which a coalition of states of the "willing" led by the USA began in March 2003, has brought the question of war and violence in international relations back to the center of interest. In particular, the reasons given to justify the invasion raise questions about the status of applicable international law and its suitability for combating new threats in the 21st century.
Limiting the use of military force in international relations is an achievement of the 20th century. While it was one of the essential attributes of the sovereign state to be able to go to war at any time in order to enforce its foreign policy interests, until the end of the First World War, a new understanding developed in the era of the League of Nations - not least under the influence of that war international order. The outlawing of war and finally non-violence between states became the most important basic value of this order. A major milestone in this development was the Briand-Kellogg Pact of 1928, in which all contracting parties renounced war "as a tool of national policy". In addition, there was the collectivization of international security: the League of Nations Charter of 1919 described the maintenance of international peace as a matter of common interest to all member states. The League of Nations did not produce a functioning system of collective security.
The Charter of the United Nations in 1945 created a new international legal basis both for the substantive prohibition of violence and for its collective enforcement by the international community. Article 2 (4) of the Charter fundamentally prohibits the Member States from threatening or using force in their international relations. Any military force - no longer just war - by one state against another is therefore contrary to international law. According to Chapter VII of the Charter, it is incumbent on the UN Security Council to decide and implement measures against the aggressor in the event of a threat to peace or an act of aggression. All member states of the United Nations are bound by such decisions.
The comprehensive prohibition of violence in Article 2, paragraph 4 of the UN Charter developed into the cornerstone of the United Nations and the entire international order. It was recognized by all states outside the United Nations as an essential guideline for their foreign policy action and thus achieved the quality of universal customary international law. The International Court of Justice (ICJ) confirmed this in its 1986 Nicaragua decision and only recently added in its "Wall" opinion that for this reason the forcible acquisition of territory is also forbidden under customary law.  All states and international organizations are required not to recognize the situation resulting from the illegal use of force. In addition, the prohibition of violence is now recognized as a sentence of ius cogens, i.e. as a mandatory international law norm from which states cannot deviate even within the framework of a contractual agreement. 
In connection with the Iraq war, American international lawyers in particular have recently denied the continued validity of the general prohibition of violence and justified its expiry mainly with the inability of the UN system to effectively counter the new threats posed by international terrorism.  The clear majority of international lawyers, however, rightly oppose this short-sighted attempt to expand the US's foreign policy options. Because not only does the prohibition of violence in Article 2, paragraph 4 of the UN Charter continue to apply as part of this international treaty. Above all, however, the overwhelming majority of states reaffirmed their fundamental adherence to this fundamental norm on the occasion of the Afghanistan intervention in 2001 and, in particular, the Iraq war in 2003. And by trying to justify the attack on Iraq with the help of exceptional rules, the USA and its "coalition of the willing" have implicitly recognized the continuation of the basic rule. The consensus in the international community that military force of one state against another is fundamentally prohibited and therefore contrary to international law still exists. In view of the enormous destructive potential of modern weapons technology, there is no serious alternative to legal policy: a sovereign right to use force, comparable to the international law of the 19th century, would call practically every international order into question under the technical conditions of the 21st century. The maintenance of an effective international law prohibition of violence is therefore not least a requirement of practical reason.
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