Criticism of Germany as an unreliable military ally is widespread and growing. But rather than deregulating the rules of German military engagement, we should be looking to include similar non-aggression clauses in the national legislation of other NATO member states.
Many commentors on the recent Atlantic Community Editorial Article Germany Goes on the Offensive called for a change in the German constitution to make it easier for the Bundeswehr to take part in offensive ‘out of area' operations. The air strike against hijacked tankers ordered by German troops in Kunduz province last week has led to further criticism of Germany as an unreliable ally. But rather than deregulating the rules of German military engagement, we should be looking to include similar non-aggression clauses in the national legislation of other NATO member states and making non-aggression one of the guiding principles of its new Strategic Concept.
It is in the interest of every state to strengthen the fabric of international law. An effective law-based system of international peace and security is a more enduring guarantor of national and collective security than reliance on a balance of power through military strength. In New Zealand, for example, a Private Member's Bill is seeking to ensure that the country's use of armed force is always in conformity with international law. If passed, it would make an act of aggression, as defined in the draft Bill, a ‘leadership' crime. A parallel international process to establish the International Criminal Court's jurisdiction over the Crime of Aggression is currently mired in procedural wrangling.
What would be the outcome of NATO politically binding itself (and some of the more belligerent member states legally binding themselves) to the same standards of non-aggression as Germany? Well, it would certainly make it easier for NATO to legitimately criticise the aggression of others. It may also enhance NATO's legitimacy to act to temper such aggression, and, where appropriate, assist the Alliance in obtaining the prior authority to do so (within the UN Security Council). It would also likely generate greater public support for such ‘last resort' interventions and avoid the kind of ‘national caveats' that have proven so controversial in Afghanistan. And had a law, such is proposed in New Zealand, been on the statute books in the UK in 2003, the then British Prime Minister might well have tempered his enthusiasm for a ‘war of choice' in Iraq.
It should be stressed that such a non-aggression commitment would not prevent NATO (or any individual member state) from undertaking the lawful use of armed force in the exercise of the inherent right of individual or collective self-defence or where authorised by the UN Security Council, including as part of an enhanced commitment to enforce the ‘Responsibility to Protect' (R2P) agenda.
Of course, the lawful use of force often turns on the particularities of each case. But the nexus of failing states and fears of WMD proliferation have led to a lowering of the threshold in the use of force, including deeply misguided and even illegal preventive wars of alleged self-defence. But numerous other options (both military and non-military) are also available, and may be more appropriate and effective in achieving security objectives. The alternatives include diplomacy, conflict prevention, deterrence, containment and collective defence.
In the specific case of Afghanistan the picture is by no means as clear-cut as those that seek to legitimise the mission on the grounds that "ISAF is a UN-mandated mission". Not all allied military activities in Afghanistan (and now Pakistan) fall under the ISAF command. The US Operation Enduring Freedom) and some of the related operational activities (such as CIA targeted assassinations using drones and the inappropriate use of air power) are of dubious legality, continue to harm civilians and inflame the situation.
A number of changes in strategy in Afghanistan are required to enhance the ever-decreasing chances of a successful outcome (and might also lead to the withdrawal of the national caveats applied by Germany and others). These include: placing all US forces under the unified command of ISAF; creating a genuine multilateral decision-making process for ISAF operations (thereby ending the roll-out of unilateral, ‘take it or leave it', Af-Pak strategies agreed behind closed doors in the Pentagon and the White House); greater clarity of NATO's goals as part of a revised collectively agreed strategy for Afghanistan and the region; and a focus on securing and protecting population centres and helping to build civilian rule of law.
Dr. Ian Davis is the Founding Director of NATO Watch, which conducts independent monitoring and analysis of NATO and aims to increase transparency, stimulate parliamentary engagement and broaden public awareness and participation in a progressive reform agenda within NATO