If at Night, of the 2+4 Treaty I think…

It becomes clear that Germany's woes aren't 'merely' domestic in nature--but that the Ukraine/NATO-Russia conflict is destroying the post-WW2 order

Yesterday, we talked about Germany’s domestic woes—and today, we shall talk a bit more about its international dimensions. Please find yesterday’s posting here:

Germany's Authoritarian Moment

The ‘2+4 Treaty’ of 1990

In case you haven’t heard of it, the term ‘2+4 Treaty’ is the short-hand name given to the ‘Treaty on the Final Settlement with Respect to Germany’, signed on 12 Sept. 1990 by both the Federal Republic and the German Democratic Republic (hence ‘2’) and the four major (sic) Allied Powers of the Second World War, i.e., the US, the USSR, the UK, and France (hence ‘4’). The link cited here leads to the official text provided by the US Embassy (sic) in Berlin.

According to Wikipedia the Ministry of Truth™, the ‘2+4 Treaty’ is ‘an international agreement that allowed the reunification of Germany…[that] supplanted the 1945 Potsdam Agreement: in it, the Four Powers renounced all rights they had held with regard to Germany, allowing for its reunification as a fully sovereign state the following year. Additionally, the two German states agreed to reconfirm the existing border with Poland, accepting that German territory post-reunification would consist only of what was presently administered by West and East Germany’. (here and in the following, my emphases; references omitted)

There is, of course, a lively debate about whether or not the ‘2+4 Treaty’ has been broken (and by whom, it’s a he-said, she-said ‘discussion’), and at its core remains the crucial question what does the ‘2+4 Treaty’ state about Germany’s involvement in military matters? Here’s the relevant art. 2:

According to the constitution of the united Germany, acts tending to and undertaken with the intent to disturb the peaceful relations between nations, especially to prepare for aggressive war, are unconstitutional and a punishable offence. The Governments of the Federal Republic of Germany and the German Democratic Republic declare that the united Germany will never employ any of its weapons except in accordance with its constitution and the Charter of the United Nations.

Obviously, the NATO-led aggression vs. Yugoslavia in the late 1990s—which occurred without a UN mandate—is a violation of said ‘2+4 Treaty’ for which no-one had to answer in a court of law.

The Substitution of Section 80 of the Criminal Code

Peter Haisenko, writing for Unser Mitteleuropa, points to yet another overlooked aspect:

Let’s start with the Minsk Accords. Last year, ex-Chancellor Merkel admitted with a certain amount of pride that she, the Frenchman Hollande and the Ukrainian Poroshenko did not intend to keep this agreement. According to Merkel, it only served to save 6,000 Kiev soldiers encircled in Debaltsevo from capture or destruction and to gain time to massively rearm Kiev and make it ready for war against Russia. If this isn’t preparation for a war of aggression, then I don't know what else could be. Why did Merkel have Section 80 of the Criminal Code deleted on January 1, 2017, almost unnoticed by the public? What did this paragraph say?

‘Anyone who prepares a war of aggression (Article 26 Paragraph 1 of the Basic Law) in which the Federal Republic of Germany is to be involved and thereby creates the danger of war for the Federal Republic of Germany will be punished with life imprisonment or with a prison sentence of not less than ten years.’ However, Article 26 paragraph 1 of the Basic Law was never taken into account. It still reads: ‘Actions that are suitable and are carried out with the intention of disrupting the peaceful coexistence of peoples, in particular to prepare for the waging of a war of aggression, are unconstitutional. They are to be punished.’

For background, we turn to Wolfgang Bittner’s 2017 article on these changes to the Criminal Code:

Almost unnoticed by the public, Section 80 of the German Criminal Code was removed on 1 January 2017, according to which the preparation of a war of aggression was punishable…

It goes without saying that the fathers and mothers of the Basic Law wanted to make waging a war of aggression a criminal offence. Nevertheless, the unambiguous constitutional mandate as well as the criminal provision of Section 80 of the German Criminal Code were simply overridden due to the political interests of ‘statist’ lawyers.

For example, on 7 February 2006, the Federal Public Prosecutor General wrote to the Netzwerk Friedenskooperative [lit. Network Peace-Cooperative] in response to its criminal complaint against members of the red-green federal government for aiding and abetting the war of aggression against Iraq: ‘According to the clear wording of the provision, only the preparation for a war of aggression and not the war of aggression itself is punishable…’ One would think that this would have triggered a wave of protest, because after all, it is about war and peace. But there was no discussion worth mentioning either in academia or in the media, neither in 2006 nor in 2017.

Nor in 2022, as we all know. Here’s more from Bittner’s piece:

Allegedly, the new Section 80a ‘Incitement to the crime of aggression’, which was added to the German Criminal Code on 1 January 2017 and refers to Section 13 of the German International Criminal Code, is now a substitute. § Section 80a reads:

‘Anyone who incites to the crime of aggression (Section 13 of the German International Criminal Code) publicly, in a meeting or by distributing writings (Section 11 (3)) within the territorial scope of this Act shall be punished with imprisonment of three months to five years’…

This legal provision—in contrast to Article 26(1) of the Basic Law and the previous Section 80 of the Criminal Code—offers wide scope for interpretation, especially as the United Nations Charter has not prevented ‘humanitarian interventions’, ‘preventive self-defence’ or ‘emergency aid’ (such as in the Kosovo war) that violate international law in the past. This opens the door to arbitrariness—as before.

Section 80a StGB is therefore not a replacement for the deleted Section 80 StGB, as is claimed by various parties. Rather, the legislator has legalised the previous unlawful practice of warfare by the German government and German military for the future—one of numerous examples of the progressive de-democratisation in Germany.

What the Hell is Germany Doing?

Peter Haisenko provides crucial insights:

It is always emphasised that we have no responsibility for what Kiev uses the weapons supplied for, but the simple fact remains that it is German weapons that are being used against Russia. There is already a statement on this from the Wissenschaftlicher Dienst [Germany’s ‘Congressional Research Office’] of the German Bundestag from April 2022. It states that Germany is breaking the ceasefire with Russia if Ukrainian soldiers are trained here. And that is exactly what sets Germany apart from all other Ukraine supporters.

Germany lives in a state of armistice not only with Russia, but also with the other Allies. Former Chancellor Schröder probably explained this to his party comrade Scholz, which explains why the latter was so hesitant to deliver weapons until he had to fulfil his orders from Washington. But with the delivery of Taurus missiles, the fact that the Russian motherland is being attacked with German weapons would finally be fulfilled. Let us also take the unequivocal announcement from our Foreign Minister [Baerbock]. She said she wanted to ruin Russia's economy and that Germany was at war with Russia. As a Russian, how would you interpret it if it was Kiev’s military that used German weapons against Russia, but Kiev couldn't do that without these weapons?

This is not as clear-cut as it might sound, and while the choice of words is…tricky, the fact remains, as per the Bundestag’s Wissenschaftlicher Dienst, the ‘2+4 Treaty’ is a lot of things—but it is NOT a peace treaty.

Here’s the Supreme Court in a ruling dated 26 June 2003 (III ZR 245/98, p. 15) on this matter:

The Two Plus Four Treaty may not qualify as a peace treaty in the conventional sense, which usually covers the termination of the state of war, the establishment of peaceful relations and a comprehensive settlement of the legal issues arising from the war. However, its declared aim was to bring about a final settlement with regard to Germany, and it became clear that there would be no further (peace) treaties on legal issues relating to the Second World War

Now, while you may hold that this amounts to a whole lot of baloney and, on top of it, why should you care? Well, here’s why this is important, and it all points to 1941/45 as the origins of this mess, to which we now turn.

Germany Declared War on the Soviet Union and the US in 1941, the Wehrmacht Capitulated in 1945

As I wrote about extensively four weeks ago, the German state today—the Federal Republic of Germany—is literally identical under international with the corporate entity known colloquially as the ‘Third Reich’ or ‘Hitler Germany’.

It was the Wehrmacht that capitulated on 8-9 May 1945, not the German state that surrendered to the Allies. Read more here.:

In Our Times: an 8/9 May Column

What does this mean?

Given the de iure absence of a peace treaty between Germany and the Allies in the conventional, legal sense, I think it means that Peter Haisenko is technically correct when he considers whatever state of affairs exists between Berlin and Moscow (as well as London, Paris, and Washington, for that matter).

We note, in passing, that Hitler legally declared war on the USSR and the USA in June and December 1941 (Britain and France had declared war upon Germany in September 1939), which created ‘a state of war’—which never, technically, ended.

Now, what do these legalities and technicalities mean?

I personally think that ‘Germany’ (whatever that means, actually) is playing with fire, and by extension, the rest of its ‘allies’ (sic) are doing so, too.

I don’t consider the Russian leadership to be as ignorant and incompetent as its Western counterparts, hence I hope the former tread carefully for they are dealing with morons.

Germany Prepares for War

Don’t take my word for it, just consider two items of relevance:

First, Nancy Faeser’s Ministry of the Interior has published an 81-page guideline outlining ‘how the government plans to protect the population in the event of war’, as the Handelsblatt phrases this.

That guideline, though, is wild. Not only does it contain a lot of BS, it also provides for sobering reading.

On pp. 7-8, we learn that Germany’s ‘security-political interests’ are tied to the UN, NATO, and the EU, and they, naturally, include ‘safeguarding the liberal, democratic order’.

The main kicker, however, comes on p. 9, which explicitly holds that, ‘as per the Treaty of Aix-la Chapelle [Aachen], French and German security interests are inseparable’, i.e., Berlin and Paris are Siamese Twins, so to speak.

Now, this means that, for instance, if France, sending troops to Ukraine (I know, this would be wildly irresponsible and would therefore never happen, right?). What could—will—go wrong?

Moreover, it is obvious that, once war ‘breaks out’ (apparently one way or the other), Germany’s federal gov’t will take over all that it doesn’t control right now:

Security provision is not only a task for the state as a whole [gesamtstaatlich], but also for society as a whole [gesamtgesellschaftlich], which requires the participation of the population, science, and business in the sense of integrated security in order to strengthen the resilience of the state and society as a whole.

Totalitarianism rears its ugly head once more, yet there is, as always, ‘more’.

How ‘Valid’ is the ‘2+4 Treaty’?

The second key document to consider is what the Wissenschaftlicher Dienst of the Bundestag wrote recently about the ‘2+4 Treaty’, specifically relating to its unilateral renunciation by, e.g., Russia. The original file, bearing the no. WD 2-3000-008/24, can be found and read here.

In their expertise, the Wissenschaftlicher Dienst considers whether or not the ‘2+4 Treaty’ can be, hypothetically, renounced.

The first item on their bucket list is to consider who could do so, which means—who signed and ratified the treaty? Russia is the successor of the USSR, hence that would be possible; Germany (and the GDR) did so, too, as did the UK. Legalistic problems emerge with France (which didn’t ratify the underlying Vienna Convention upon whose basis the ‘2+4 Treaty’ rests while the USA signed but did not ratify the treaty.

These issues notwithstanding,

As the Two Plus Four Treaty is a treaty under international law within the meaning of Art. 2 para. 1 a) Vienna Convention on the Law of Treaties [hence VCLT], the (customary law) provisions of the VCLT are applicable to the agreement. Although the international law principle of pacta sunt servanda (Art. 26 VCLT) stipulates that treaties must be honoured, Section 3 of the VCLT (Art. 54-64) contains numerous exceptions to this principle. Articles 54 and 56 VCLT contain provisions on the termination and cancellation of a treaty or withdrawal from a treaty. Articles 57-59 of the VCLT deal with the suspension of treaties, while Articles 60 and 62 regulate the cancellation of a treaty due to changed external circumstances or a breach of contract.

While the Wissenschaftlicher Dienst explicitly noted the ‘academic nature’ of their expertise, this is what they find:

In the 2+4 Treaty, there is no possibility of terminating the agreement in accordance with special treaty provisions, as provided for in Art. 54 a) VCLT. Termination by mutual consent of all contracting parties (cf. Art. 54 b) hardly ever occurs in practice [gee, I wonder why /sarcasm].

Art. 56 VCLT contains provisions for the event that a cancellation, termination, or withdrawal is intended, although the [2+4] Treaty does not contain any provisions to this effect…

If the treaty does not contain any provisions on cancellation of the contract, it is therefore generally not possible to terminate or withdraw from the treaty. Disengagement from the treaty is only possible if the requirements of Art. 56 para. 1 a) or para. 1 b) VCLT are met [line break added]

However, the 2+4 Treaty does not contain any formulations that suggest implicit cancellation, termination, or withdrawal options. On the contrary, the ‘conclusive’ nature of the treaty's provisions is mentioned in many different places, including in the title of the treaty. This suggests that no implicit cancellation, termination or withdrawal options were intended. This rules out the application of Art. 56 VCLT…

As the 2+4 Treaty does not contain a provision on suspension, unilateral suspension—for whatever reason—is not possible under Art. 57 a) VCLT. An agreement of all contracting states regarding the suspension of the treaty (cf. Art. 57 b) VCLT is remotely possible.

A multilateral treaty can also be suspended under the conditions of Art. 58 VCLT on the basis of an agreement between individual contracting parties…

Furthermore, a treaty can be suspended or terminated by the conclusion of a new treaty in accordance with Art. 59 VCLT. However, this requires mutual consent [of all parties, i.e., something that’s ‘remotely’ likely, I’d add].

What happens if a treaty party ‘violates’ its commitment?

This is the most extensive section, and, basically, it is noted that Art. 60 VCLT sets very high bars and that suspension of a treaty requires the consent of all parties. This is highly unlikely, in addition to the fact that such a violation-based suspension would have to be ‘temporary’.

The second possibility of a ‘substantial’ breach of contract is justified under Article 60(3)(b) VCLT by a breach of essential treaty provisions. However, it is not easy to identify a breach of contract in the context of the 2+4 Treaty today, as most of the obligations of the contracting parties listed in the treaty were related to the establishment of German unity and have since been fulfilled and thus become obsolete. This applies in particular to the contractual obligations of the former Soviet Union with regard to the presence of Soviet armed forces on the territory of the former GDR (cf. Art. 5 of the 2+4 Treaty), which ‘came to an end’ with the final withdrawal of Russian troops in 1994. The same applies to the obligation of the former victorious powers of the Second World War to end Allied prerogatives in relation to Berlin and Germany as a whole (Art. 7 of the 2+4 Treaty). The 2+4 Treaty only contains continuing obligations under international law, i.e., obligations that continue to this day, for the reunified Germany (apart [why?] from the ban on the stationing of nuclear weapons by the former Allies (i.e. the NATO members USA, France and Great Britain) on the territory of the former GDR, cf. Art. 5 Para. 3 of the 2+4 Treaty) [well, because there is a high degree of likelihood that ‘the former Allies’, specifically, the US, is in violation of the 2+4 Treaty that they signed but never ratified].)

Oh, look, the 2+4 Treaty’s provisions have mostly lapsed, the Bundestag says, while maintaining that this reading might be contradicted by France (because Paris didn’t accede to the VCLT) and the US (because D.C. didn’t ratify the 2+4 Treaty).

In the case of France, this is strange as Germany considers its security interests ‘inseparable’ from those of France.

In the case of the US, it’s hard to point fingers, technically (legally) speaking, for American non-adherence to a Treaty that the US never fully acceded to. Well played, Washington, I’d say (why Europeans consider the US fully trustworthy, at least in their public statements, is beyond me).

Also, there’s one other, admittedly major, factoid to consider:

The deployment of Bundeswehr soldiers as part of the NATO operation ‘Allied Force’ in Kosovo in 1999 was sometimes discussed as a violation of Article 2 of the 2+4 Treaty. However, the deployment in Kosovo, which was (and still is) extremely controversial [ahem] under international law in terms of so-called ‘humanitarian intervention’, apparently does not constitute such a serious (‘substantial’) violation of the [UN] Charter (and thus also of the 2+4 Treaty) as the contracting parties to the 2+4 Treaty had in mind with the wording in Art. 2 sentence 3 of the Treaty. This is supported by both historical and systematic arguments for an interpretation of the 2+4 Treaty: Article 2 sentence 2 of the Treaty refers essentially to the prohibition of aggressive war, and in doing so refers to the provision in Article 26 of the Basic Law. The historical reference point for the provisions of both Article 26 of the Basic Law and Article 2 sentence 3 of the 2+4 Treaty was Nazi Germany’s war of aggression against Poland in 1939.

We learn that attacking a country w/o UN ‘approval’ is a ‘substantial’ violation of the UN Charter, which renders esp. Russia and the US highly compromised when it comes to judging each other’s actions.

Illegal and/or ex-post legalised deployment of occupation forces (e.g., KFOR), however, is not a ‘substantial’ violation of the UN Charter (hi, occupied Palestine, I suppose).

But wait, there is more.

What, then, is the 2+4 Treaty?

Again, the Bundestag’s Wissenschaftlicher Dienst considers this:

The 2+4 Treaty does not establish any legal obligations for the reunified Germany that go beyond the existing obligations under constitutional and international law. The 2+4 Treaty reaffirms these obligations, but remains merely ‘declaratory’ in this respect. To a certain extent, the treaty contains an ‘admonition’ to the reunified Germany to comply with existing legal obligations…

The practice of Bundeswehr deployments abroad since 1990—including the Kosovo mission in 1999—does not give rise to any legal grounds for assuming a ‘substantial’ violation of the 2+4 Treaty that would justify termination of the 2+4 Treaty by another contracting party (pursuant to Art. 60 VCLT).

Again, this is partially BS for the above-mentioned reasons, to say nothing about its contradictory qualities. Written on 8 Feb. 2024, the Bundestag holds:

It is not apparent that any external circumstances have objectively changed. Attitudes of contracting parties towards other contracting parties, (new) alliances or the like do not constitute a ‘fundamental change’ in the given circumstances. It should also be noted that according to Art. 62 para. 2 lit. a) VCLT, a fundamental change cannot be invoked if the treaty defines borders…

It is not apparent that suspension or termination of the 2+4 Treaty would have any legally tangible consequences for the former victorious powers of the Second World War (as contracting parties to the 2+4 Treaty)—and in particular for the Russian Federation as the successor state to the former Soviet Union. According to Art. 70 VCLT, termination of the treaty merely means that the contracting parties do not have to continue to fulfil their obligations [i.e., the US and other Allies might then legally place nukes in former East Germany]. The termination and, pursuant to Art. 72 VCLT, also the suspension of a treaty therefore only have ex nunc effect for the present and future, but no retroactive effect…

Termination / cancellation of the 2+4 Treaty would therefore neither revive the prerogatives of the Allies with regard to Berlin or ‘resurrect’ the defunct GDR nor give Russia the right to station troops on the territory of the Federal Republic of Germany again.

Well, I’d say that Thucydides, in the Melian Dialogue, will sort this one out.

Bottom Lines

On the one hand, Germany has never received a peace treaty in the strictly legal sense; the 2+4 Treaty is not such a treaty.

In practical terms, it is highly unlikely that Russia wants to re-occupy any part of Germany.

I do think that the Russians don’t want to be the party that renounces this treaty, for it would simply hand an incredible propaganda victory to ‘the West’. Imagine—‘the Rooskies want to re-fight WW2’—and, this time, Germany is ‘on the right side’ from the get-go.

Whatever statements are emerging from Russia in this regard can, and safely so, be relegated to even greater idiocy than whatever BS ‘the West’ cooks up.

What should give any sane person pause, however, are the incompetent morons (ostensibly) ‘running’ Western Civ at this point and their ever-increasing belligerence towards Russia.

All of Moscow’s red lines have been crossed; Russia didn’t retaliate (yet).

Western Civ is moving quickly towards the war path.

Collateral damages incl. international law and domestic liberties.

I do hope that the Russians love their children (more) than Western leaders and spare us.