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The German Debate Over The War on Iraq:
Why Opposition Is So Deep and Widespread

Monday, Apr. 07, 2003

Two-and-a-half weeks into the war with Iraq, it is understandable that Americans are mostly concerned with the day-to-day movements of troops, and the progress of the American battle plan. Our State Department has taken a few deliberate steps towards sketching out the shape of post-war Iraq. But generally, questions of what will happen after the war - and how other countries will feel about it - have been postponed.

Just as postwar issues have largely been left for the future, prewar issues - the lengthy diplomatic struggle that led up to the invasion - have largely been left in the past. One sees very little analysis, any more, of why diplomatic measures failed. Except for a few joking references to "freedom fries," America seems to have moved beyond its disappointment over the lack of support it received from the great powers of "Old Europe."

Old Europe, however, has not forgotten the path that led to war. The European governing elite and general population are both still virulently opposed to the war. They are also deeply disturbed by the stubborn way in which America pushed its foreign policy agenda onto the agenda of the world community, over their wishes, and prevailed on it, over their wishes. For them, then, the prewar diplomatic process remains very much alive.

While it may not matter to Americans what Europe thinks, it should. Politics is rife with the lessons of the law of unintended consequences, and it is not clear to me that the Bush administration has clearly thought through the consequences of "going it alone" in the world. Nor, perhaps could it; some of these results may currently be unforeseeable, yet could be very negative once revealed.

In this context, it's worth taking a look at the European debate over the American policy on the war. In this column, I will focus on Germany - partly because it's useful to focus on one country, partly because I am knowledgeable about the country and have repeatedly traveled there, and partly because, in my view, the German resistance to war is especially important to understand.

Germans Are Deeply Opposed to the War

First, it is important to recognize the depth of the opposition to the war among German voters. Polls regularly show opposition running close to 80%.

Some American commentators confuse the position of the leader of the major conservative party, Angela Merkel of the CDU - who is pro-America - with support of the American-led war. In fact, the longer Merkel maintains her pro-America position, the more she hurts her standing in her own party. That is because 75% of conservative voters--almost as many as center-left voters--oppose the war.

Instead, we should look at the views - and fate - of the man who, by all rights, should be Chancellor of Germany today: Edmund Stoiber.

Why Stoiber's View Provides the Greatest Insight Into War Opposition

Stoiber is the leader of the CDU's junior partner, the Bavarian-based Christian Socialist Union ("CSU"). The CSU is the closest thing to Bush's Texas Republican party. It's based in Germany's wealthiest region, and is extremely pro-business, anti-tax, pro-church and family values.

In last September's national elections, Stoiber was the conservative candidate. All during August, polls indicated that he would win. The main issue Germans said they cared about was the economy, and Stoiber offered a break with the "tax and spend," pro-union politics of Gerhard Schroeder.

Then Schroeder brought out his secret weapon: He began to focus relentlessly on George Bush's campaign against Iraq. One of Schroeder's ministers, Herta Daubler-Gmelin hyperbolically compared Bush to Hitler, claiming Bush too was using war as a means of maintaining political power.

Schroeder took the view that Germany would not support a war against Iraq under any circumstances - even if the U.N. approved it. That position was cynical, to say the least, since Germany would be bound to support the use of force against Iraq under a number of treaties (NATO's and the UN Charter, to just mention two). But Schroeder adhered to it.

In contrast, Stoiber's position on Iraq was that Germany should uphold international law and follow the U.N. Capitalizing on this position, Schroeder painted Stoiber as a Blair-like poodle of the United States.

The strategy worked: Schroeder beat Stoiber by less than 1% of the vote in an election that was, like the 2000 election in the United States, very close (although never inaccurately counted).

Ironically, after winning the election, Schroeder essentially came around to supporting exactly the same view Stoiber holds: No U.N. authorization, no war.

Germans Tend to Value the Rule of Law, Including International Law

I believe that the key to understanding the German rejection of the current war is contained in the following statistic: 79% believe that it is a violation of international law.

One might be cynical about this survey result, and suggest that many of the Germans asked do not know very much about international law. Thus, one might say that, like so many survey results, this one simply shows that statistics can be used to prove anything. After all, what does a German car mechanic or homemaker know about the subtle and intricate world of the law of nations?

But to discount the importance of the rule of law to Germans--even the "average" German--would be to misunderstand the important changes that have occurred in Germany since the time of Hitler. It is a crude stereotype that Germans are, as a people, orderly and susceptible to authority. But it is not inaccurate to say that throughout its modern history, Germany has struggled with the proper understanding of the rule of law.

The Roots of Germany's Focus on the Rule of Law

The concept of the "rechtstaat"--the application of legal right through state power--has been one of the strengths and weaknesses of the German legal system. The concept means, in a nutshell, that the state is the expositor of the ideals of law.

This concept is one reason why German jurisprudence and legal codes were the envy of the world at the end of the Nineteenth Century. At that time, they were idealized by law professors at Harvard, and borrowed by governments in the Far East.

Of course, this concept also has a terrible, and fatal flaw. The idea that the state is the best expositor of the ideals of law led many brilliant and respected lawyers to tolerate, and even enthusiastically promote, the racist and militaristic legal norms generated by the Nazi party.

For this reason, the post-war period was a time of extraordinary reconstruction in Germany. Not only were its cities rebuilt, but its understanding of the relationship between law and state power underwent a massive transformation.

One lesson they have learned--perhaps too simplistically for the tastes of sophisticates like Rumsfeld and Wolfowitz--is that when state power and law collide, law must win. Any attempt to get around this simple prohibition in order to cook up excuses for "exceptional cases"--as the United States has tried to do--is to open a Pandora's Box.

Turning to International Law Out of Weakness, Or Out of Strength?

Robert Kagan has propounded the intriguing theory that states turn to international law when they are weak. His theory might explain the German obsession with upholding the niceties of international law and why they "hide" behind the idea of U.N authorization.

But I think that Germany's message is a little different. To my mind, the Germans (unlike the French) are not afraid of U.S. power because of what it might do to them or their friends. Rather, German geopolitical interests are almost 100% coincident with those of America, and Germans know they have nothing to fear in that regard.

Instead, I think that the Germans are simply warning America of the perils of joining strength to lawlessness. When Germany was defeated in battle in the greatest war of the Twentieth Century, probably its greatest enemy was itself, because it remade law to reflect state power--not constrain it.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects.

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