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  • On the Relationship Between Ethics,International Law and Politico-MilitaryStrategy in Our TimeA Philosophical Retrospective on theKosovo Conflict

    Karl-Otto ApelUNIVERSITY OF FRANKFURT AM MAIN, GERMANY

    AbstractIn reconstructing and commenting upon the Kosovo conflict, the cognitiveinterest of practical philosophy does not evade a political judgment but isprimarily led by the interest in answering the question of what normativeyardsticks are available (to politicians and to the public) for coping with asituation where the international order of law fails to provide a legalsolution to the problem of preserving peace and, at the same time, protect-ing human rights that are severely violated by a sovereign state. The paperproposes an answer from the point of view of an ethics of history-relatedresponsibility, which takes into account three normative levels based onethical, legal and political considerations. In this light the action of NATOmust be judged.

    Key words ethics international law NATO politics strategy

    The Challenge of the Kosovo Conflict to PracticalPhilosophy

    The Kosovo conflict (between NATO and Yugoslavia) deserves a retrospectivereflection by the social sciences, and especially by practical philosophy. What arethe reasons for this assessment?

    What happened was not only the return of war on European territory, but itwas, at least for a while, the first return after the Second World War of a waron European territory without any legal enclosure by institutions of international

    European Journal of Social Theory 4(1): 2939

    Copyright 2001 Sage Publications: London, Thousand Oaks, CA and New Delhi

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  • law. This made a dangerous difference in contradistinction to preceding conflictssuch as the war between ethnic groups in Bosnia as well as the police action ofNATO against Iraq authorized by the United Nations. For a while even the inter-national order of law, as it was established after the Second World War, namelythe legal authority of the UN and its executive representation by the SecurityCouncil, was endangered by the illegal actions of both NATO and MilosevicsYugoslavia, since the Security Council was split by dissent about the conflict.Thus the different but interdependent normative stances with regard to a warwere again set free by the Kosovo conflict: I mean those of ethics, of law and ofpolitico-military power strategies. And exactly these different normative measureswere reflected in those days by the different public stances and comments bypublicists and military personnel, on the one hand, and scientists and intellectu-als, on the other.

    I for my part was especially struck, and almost irritated, by the diversity of thenormative yardsticks that informed the comments and by the manifest uncer-tainty and unclearness over the question of a hierarchical order in the relation-ship between ethics, law and strategic rationality. Now it is precisely this question,I suggest after some reflection, that is the crucial problem of practical philosophythat is bound to come up if (and when) the legal order of positive law breaksdown. And in our day it also is a constant threat in the international sphere,beyond the sovereignty of the particular states. In these cases, one would think,the normatively binding orientation falls back on some kind of ethics, or evenon the purely strategical rationality of power politics. This seems to come to thesame thing; for, as many think, ethics either is a matter of interpersonal loyaltywithin small groups, and so far it is apolitical; or it is a matter of nationalisticpatriotism, and then it is opposite to international law, like pure power politics.

    Roughly speaking, this issue was the challenge to moral philosophy I tookfrom the Kosovo conflict and its public comments.

    Here I shall comment on this problem, which is not completely novel but isstill unsolved and hence highly topical in our time.

    The Hierarchical Order of Normative Yardsticks in the Caseof the Kosovo Conflict: a First Orientation

    First, I shall elucidate my architectonical vantage-point in practical philosophyby immediately suggesting an answer to the problem of the hierarchical order ofnormative yardsticks that was raised by the Kosovo conflict. Today in those caseswhere the function of international law is failing, the normatively binding orien-tation falls back on ethics, but not on an extra-political micro-ethics, whichwould be irrelevant for the case in question, and not on a traditional ethics ofnationalistic patriotism, which was and is very relevant but disastrous in thecontext of ethnic conflicts like those in Bosnia or Kosovo; it falls back on thattype of universal ethics of responsibility that provides the normative foundationand at least part of the historical motives for the rise of, and especially for the

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  • most recent development of, international law (for example with regard to theconventions about human rights).

    All normative resources of practical philosophy are ultimately grounded in aconception of universal ethics that as ethics of responsibility also accounts for thelegitimation of coercive law and even of political strategies. But this tenet has tobe elucidated more closely. As I have argued more thoroughly in many places(Apel, 1980, 1988a, 1996), I suppose that the fundamental norms of a univer-sally valid ethics can be grounded by transcendental-pragmatic reflection on thenecessary (i.e. undeniable) presuppositions of serious argumentation in adiscourse. In that situation we must, for example, have acknowledged that allvirtual members of an unlimited ideal argumentation community, being ourpossible partners, have equal rights and an equal co-responsibility in identifying(i.e. detecting) and solving morally relevant problems (such as those of conflictsof interests) only by argumentative discourses, with the aim of finding solutionsthat can be accepted by all affected persons.

    According to this ideal principle of discourse ethics, as the ultimate foundationof a post-traditional and post-conventional macro-ethics of humankind, certainlyall conflicts between human beings ought to be settled in a way free of violence,that is, if possible, even in a way free of purely strategic negotiations (for theseconsist of offers of advantages and threats of disadvantages), not to speak of waysof war. However, when it comes to applying discourse ethics to the historicallyconditioned situation of the life-world, we cannot and must not suppose as wedo in the situation of the ultimate foundation of discourse ethics in the pri-mordial argumentation community of philosophy that the others, our virtualpartners, are primarily interested in settling conflicts by communicativediscourses; they might prefer to deal with them by purely strategic negotiationsor even by way of open violence, say, because they trust in their power resources,or because they mistrust the possibility of a dialogical solution.

    Now, in these cases, insisting, in principle, on the normative liability of idealdiscourse morality, and by consequence dispensing in principle with all appli-cations of counter-violence against violence, would be not only unreasonable buteven irresponsible; for it would amount to enhancing (strengthening) the dispo-sition towards violence on the side of those who refuse discourse. In this sense,principled (unconditioned) pacifism is a position one cannot coherently thinkthrough to the end. This holds in particular in those cases where not only onesown interests are at stake but also the vital interests of other people for whomone bears co-responsibility; eventually the vital interests of all human beings whosehuman rights are violated.

    By this consideration we have reached, in a first approximation by ethics ofresponsibility, the situation of obligation towards intervention. That was officiallysupposed to be given by NATO after the failure of the negotiations of Rambouil-let. This assessment was testified to, for instance by Joschka Fischer, the Germanforeign affairs minister, who had been a pacifist himself and declared that therewas no alternative to military action by NATO.

    However, at this point, the controversial stances with regard to NATOs

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  • Kosovo action enter the stage. First, an objection to my account of the functionof an ethics of responsibility may be raised. Even on the level of international powerpolitics in our day, there is, after all, a certain order of law which must be recog-nized as a supplement not only of ideal discourse morality but also of the riskyfunction of the situation-related ethics of political responsibility. In the first caseit has the function of all positive law, that is, the function of setting an end tounsuccessful discussions not ex veritate but ex auctoritate; in the second case it hasthe function of securing peace and elementary human rights even against theallegedly responsible putting of violence against violence. It is ethics of responsi-bility that has to postulate such a restrictive supplementation of political ethicsby international law.

    The Deficient Function of the International Order of Lawin the Kosovo Conflict

    In the case of the Kosovo conflict, doubtless, the order of international law wasthe most important authority of appeal for the possible legitimation of actionswhich was recognized by all sides. As authority of appeal it was so much at thecentre of all serious discussions, also of the public, that the ethical measures, oryardsticks, of judgment, which in fact were never absent, could easily appear asbeing merely subjective, rhetorical and ultimately conditioned by interests. Yetinternational law (jus gentium), since its origins at the beginning of modern times,has been characterized by a dualism of its normative focuses: on the one hand,the concern of human rights, which was first grounded theologically and meta-physically on natural right; and, on the other hand, especially since the end ofthe Thirty Years War in 1648, the principle of the inviolability of the sovereigntyof the particular states, which was primarily oriented towards the preservation ofpeace.

    Although Kant first proposed the programme of a cosmopolitan order of law(Kant, 1995a), in his later Entwurf: Zum ewigen Frieden (Project towardsperpetual peace) he gave preference to a federation of sovereign republics as analternative to the cosmopolitan order of law that could be put through by a globalstate (Weltstaat; Kant, 1995b). After the end of the Second World War, thecharter of the UN, it is true, instituted a convention on the protection of humanrights, but it has unambiguously given priority to the preservation of peace. Forthe charter (in its articles 5153) expressly forbids the onesided claim of a singlestate, an alliance of states, or a regional organization for safety to be in charge ofenforcing human rights without a mandate from the Security Council of the UN.This regulation obviously pertains to the intervention of NATO in Yugoslaviaand renders it illegal (for the Security Council had not given a mandate for mili-tary intervention to NATO).

    The reason for this prioritization of the international ban of violence againstsovereign states over the protection of human rights, tendentially already withKant and explicitly by the UN after 1945, was obviously because of the intention

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  • of securing the global state of peace, which can itself be considered to be a humanright of prime importance.

    This point of view even explains the existing exceptions from the general banof violence (the residuals, so to speak, of a jus ad bellum, which, in principle, wascancelled by the League of Nations in 1918). For these exceptions are concen-trated on emergency rights. To these belong, besides the self-defence of states andthe self-help of suppressed populations (for example in the case of ethnocide, evenemergency) help by interventions from outside into the power sphere of sover-eign states, but only in those cases where the peaceful living together of thepeoples in a region and thereby global peace in general are endangered by massiveviolations of human rights, for example in ethnic purges.

    It goes without saying that the main focus of the legitimation claim of NATOsintervention in the Kosovo conflict has to be located here. This has even beenconfirmed by the UN, insofar as in September 1998 in a resolution of theSecurity Council it ascertained that in Kosovo the facts of the matter of seriousand systematic violations of human rights were given. Of course, this did not yetamount to a legalization of NATOs intervention. As a matter of fact, on theclimax of the crisis, in spring 1999, NATOs argument of justification was neitherexpressly approved nor as was demanded by Russia disapproved by theSecurity Council.

    On this occasion, if I see it correctly, a juridical gap in international lawbecomes visible (Brunkhorst, 1999: 13): a gap, for example, between thosearticles of the UN charter that provide for emergency help against violations ofhuman rights endangering global peace and those articles according to whicheven the worst form of violations of human rights, namely genocide, does notjustify one-sided, nor UN-authorized, measures of violence. This gap in law,though, is not caused merely juridically, but primarily by the following fact: theSecurity Council of the UN, which in our day de jure is in charge of puttingthrough the monopoly of violence of the state on the level of international law,de facto is also and primarily an institution of the political balance of power atthe global level; and thus far its decisions are not primarily oriented towards codi-fied international law but towards strategical mediating of interests, above allthose of the great powers.

    This constellation, which can lead to a self-blockade of the Security Councilthrough the right of veto of its single members, may be considered, on the onehand, to be a helpful mechanism for the preservation of global peace through acompulsion for consensus. On the other hand, however, it shows that a satis-factory global order of law has not yet been realized; for it can always happen thatthe Security Council of the UN, for politico-strategical reasons, cannot, or canonly insufficiently, execute the function of protecting human rights, which is itsduty in international law. (Precisely this happened in many cases during the lastdecades, for example in Tibet, in the question of the Kurds, in Ruanda-Burundi,in Chechenya, etc.). Thus it is possible that individual and collective violationsof human rights, which de jure have been proscribed by international law throughmany conventions since 1948, de facto may be practised for years under the

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  • protection of the executive authority (power) of an international order of law,which, so to speak, does not or cannot fulfil its duty.

    What follows from this unsatisfactory status quo for the problem of legit-imizing violent interventions for the protection of human rights without amandate by the UN?

    Was NATOs Intervention in Kosovo a SubstitutiveAnticipation of the Function of International Law?

    Referring to the situation so far characterized and also considering the tendentialchange within the development of international law in favour of an extendedprotection of human rights, the factual self-authorization (self-enabling) ofNATOs intervention in the Kosovo conflict has been interpreted as an anticipationof a global order of law that is already implied (implanted) in the existing corpusof international law (Habermas, 1999); thus far NATOs action might be inter-preted and justified as emergency help in a situation of the actual failure of theSecurity Council of the UN (Senghaas, 1999). And the course of events, so tospeak, by good fortune ratified this assessment, since NATOs military action wasbelatedly and indirectly legitimized by a resolution of the Security Council on 10June 1999.

    However, from the point of view of my architectonics (within practical phil-osophy) of the normative complementary order of ethics of responsibility, posi-tive law and political strategies, I find the above-mentioned argumentation onlyplausible under the condition that it is not meant to say that the so-called antici-pation of an order of international law is itself already legitimized by (positive)law and thus far is a part of that supplementation of morality by law that is indeednecessary and perhaps on the way.1

    It is indeed right that, on the level of international politics, we need a progres-sive supplementation and even replacement of the norms of substantial morals(substantielle Sittlichkeit in Hegels sense), which are culture-dependent and tothat extent controversial, through globally accepted normative conventions ofpositive law and in this sense especially codified human rights. It is also truethat existing conventions of international law, even if they cannot yet be putthrough by a functioning monopoly of power, are by no means without anypolitically effective authority. Nevertheless, we are not entitled to say that thehistory-related responsibility of political morality has already been sublated(aufgehoben) by the existing concept (Hegel) of law and hence has no longer tostep in where law is lacking.2 Rather, on my account, the contested action ofNATO, even if it is considered as an anticipation of a global order of law, is anexample of the fact that in politics, even in post-traditional conditions, a recourseto morality in the sense of an ethics of responsibility will always be necessary.This holds, although one of the main functions of this morality is precisely thatof a responsible anticipation of an order of positive (international) law that wouldsupplement morality.

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  • This morality of history-related responsibility, which is so adequatelyrepresented by the arguments of those who demand a substitution of universallyacceptable conventions of law for the traditional, culture-dependent forms ofmorals, is determined by the following, dialectical basic structure (Apel 1980,1988a, 1996). On the one hand, it demands a maximization of problem-solvingthrough discourses (and fair negotiations, whose rules must be a priori prescribedby discourses); on the other hand, however, sometimes in those unavoidable situ-ations where discursive-communicative procedures of problem-solution are notpossible because one of the potential partners is not prepared to cooperate, themorality of history-related responsibility possibly needs to take over the risk ofusing force against force; but this, to be sure, only under the regulative idea ofsimultaneously preparing for the future those conditions (especially institutions oflaw) that make communicative-discursive procedures of problem-solving possible.

    Thus far, the morality of history-related responsibility is itself a part (part B,so to speak) of discourse ethics; for its strategical teleology is derived from theideal deontology of the latter, which finally should make it superfluous. Hence,in respect of the formal foundation of its validity, which has to be carefully distin-guished from its factual-historical genesis, the function of history-related moralresponsibility is not culture-relative. This has to be emphasized against thecurrent opinion (see my argument with the later Rawls and Rorty in Apel, 1998b:14563, and with Walzer in Apel, 2000). For it is precisely its normative orien-tation towards global validity, which can be derived from the foundation ofdiscourse ethics, that is the reason why it cannot be subsumed by and into thefacticity of substantial morality or of positive law (although this does not presup-pose that, on the level of objective mind, in Hegels sense, a separation betweenthe normative and the factual must obtain).

    However, since the morality of history-related responsibility must take the riskof using force against force in the pursuit of its aim, and also cannot be incor-porated into positive law, it stands in an autonomous relationship to the choiceof political strategies. Thereby we have uncovered within the framework of ourarchitectonics of practical philosophy the third aspect of our reconstruction ofthe Kosovo conflict. Now the question arises whether the action of NATO wasundertaken in a way sufficient for it to reach its political aim: namely, to save theAlbanian population of Kosovo from the ethnic purges by the Serbs and to re-establish peace and an order of law in the region, and to reach this aim whilepreserving the international order of peace and law, that is, through substitutiveanticipation of authorization by the Security Council of the UN. The answer tothis question, I think, is yes and no.

    Critical Assessment of NATOs action from the StrategicalPoint of View

    In a sense, the most important political aim of precaution was reached with somegood fortune, namely, carrying through or fulfilling the anticipated

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  • quasi-mandate of the military intervention under preservation of the existingglobal order of law, as it was represented by the UN. This was reached not somuch through the bombing war which finally forced Milosevic to his knees, butthrough a prudent policy which by exploiting the expansion of the economicorganization of G7 to G8 succeeded in enclosing Russia and thereby ensuringthe resolution of the Security Council of 10 June 1999, which ended the illegal-ity of NATOs action.

    But thus far, strictly speaking, only a failure of NATOs action on the level ofthe status quo of the global order of law was avoided. For the immediate aim ofthe humanitarian intervention, the maintenance of ethnic peace in Kosovo andthe protection of human rights, was not reached by the military action. On thecontrary, the immediate consequence of the intervention was that Miloseviccontinued his already initiated ethnic purges by a deliberate expulsion of all Alba-nians. So far the situation of the victims of the violations of human rights inKosovo (first) was gravely worsened. And this damage expulsion and killing ofpeople and the destruction of their houses could hardly be compensated for bythe return of the exiles that was finally enforced by NATO.

    Furthermore, the military success of NATOs action seems to have led to theconsequence that the expulsion of the Albanians by the Serbs was replaced by theflight of the Serbian minority from the UCK, which, in effect being the army ofan Albanian Kosovo, wanted to promote the complete independence of Kosovofrom Serbia. But this was not the official aim of NATOs intervention. Accord-ing to the resolutions of Rambouillet, NATO was to shape the conditions of apeaceful coexistence of Serbs and Albanians in Kosovo through a re-establish-ment of the autonomy of Kosovo within the borders of the Yugoslavian state,which was cancelled by Milosevic in 1991. And this was conceived as a modelfor the settling of ethnic conflicts along the lines of international law.

    The causes of the unsatisfactory course of NATOs intervention, seen from apolitico-strategic point of view, are to be found in the lack of consequence andcoherence in the planning and execution of the military action. According to theassessments of all military experts (see, for example, the former German generalKlaus Naumann, 1999), the main deficiency of the military action was the reso-lution to dispense with ground forces; more exactly, the disastrous strategicmistake consisted in NATOs initial and repeated declarations that it would notemploy ground forces. By these public declarations Milosevic was encouraged todefy the threats of NATO and to stake everything on the card of the expulsionof the Albanians. Thus a type of warfare came about that on both sides shiftedall risks on to the civilian population and, only after repeated increases in thedestructive bombing, could reach a decision about the war.

    It may be argued here that the most efficient military strategy, a combinationof air-raids and ground operations, was impossible to implement for two politi-cal reasons: first, because of the difficulty of reaching consent by democraticprocedures about the use of ground forces among the members of the NATOalliance; and secondly, because of the risk of an escalation of the conflict betweenthe members of the Security Council, especially between the Western powers and

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  • Russia. Nevertheless, NATO could not invalidate the reproach that the militaryplanning of its intervention, which was anyway problematic on the level of inter-national law, suffered from a contradiction between the readiness to employ tech-nical means of destruction against the territory and the population and thenon-readiness to take the risk of manpower losses in the service of reaching aquick military success. Hence the strategic (political and military) execution ofNATOs intervention in Kosovo cannot be considered a model of police actionfor the protection of human rights, as not without good reasons it was claimedto be and indeed should be in the future.

    Rsum: the Present Situation of the Global Order ofPeace and Law

    To sum up the results of our reconstruction, the Kosovo conflict has shown, Isuggest, that we are still on the way to establishing by international law andcorresponding institutions a stable global order of peace and, at the same time,of a protection of human rights. The course of the limited war has shown, I think,that the UN-centred order, which was established after the end of the SecondWorld War and which has re-established itself after the end of the cold warbetween the two political and ideological world powers, has proved its worth,notwithstanding its deficiencies which also have been revealed. Hence we havegood reason to continue our efforts in this direction, which have opened up apost-national constellation of global politics, so to speak.

    This direction is also suggested, in my opinion, by the recent development ofthe economy along the lines of so-called globalization. For this phenomenon is,on the one hand, a result of a scientific-technological and politico-juridicaldevelopment of modern times, especially after the Second World War and evenmore so after the end of the cold war; on the other hand, it can itself have a strongeffect of reinforcement on the global order of law and peace, as Kant had alreadyhoped with regard to the expansion of commerce. This hope, though, will onlyfulfil itself if the wild globalization of the economy is caught and domesticated,so to speak, by a second-order globalization of law and social justice, that iscapable of preventing a further sharpening of the global conflict between Southand North, or the poor and the rich, which had already been predetermined bythe age of colonization.

    In this context of a postulated second-order globalization, I would suggest, aphenomenon has to be registered that is characteristic of the post-nationalconstellation of public order that seems to be in the making. Beside the NGOsand the mass media, there is a further quasi-institution beginning to work in ourworld which I call the thousand dialogues and conferences about all problemsof global human concerns; these events happen almost every day, attended bypoliticians, intellectuals and scientific and technological experts of all kinds.There is no doubt that these dialogues and conferences are widely dominated bystrategic interests and procedures of political and economical power systems; and

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  • so far they partly have the character of negotiations or bargainings. Nevertheless,according to their public pretensions, which are broadcasted through the media,they are also argumentative discourses, and to that extent they canalize thoseinitiatives of human co-responsibility for the control and constant critique andre-shaping of all institutions that are demanded by discourse ethics.

    Notes

    1 This indeed is the tendency expressed by Habermas and Senghaas. With Habermas itfollows, I think, from his architectonics of the supplementation of morality by law,which in contradistinction to my own architectonics does not consider a part B ofdiscourse ethics that qualifies it as the history-related ethics of responsibility (cf. Apel,1998a). It goes without saying that I consider the Kosovo conflict as an exemplary proofof the inescapability of the part B of discourse ethics.

    2 Thus argues Brunkhorst (1999), who thereby follows Hegels metaphysical architec-tonic system to such an extent that I assume he cannot have taken it quite seriously(regarding this problem see Apel, 1988b: 10353).

    References

    Apel, Karl-Otto (1980) The a priori of the Communication Community and the Foun-dations of Ethics: the Problem of a Rational Foundation of Ethics in the ScientificAge, in Towards a Transformation of Philosophy. London: Routledge & Kegan Paul.Reprint 1998, Milwaukee, WI: Marquette University Press.

    (1988a) Diskurs und Verantwortung. Frankfurt am Main: Suhrkamp. (1988b) Kann der postkantische Standpunkt der Moralitt noch einmal in

    substantielle Sittlichkeit aufgehoben werden? , in Karl-Otto Apel, Diskurs undVerantwortung, pp. 10353. Frankfurt am Main: Suhrkamp.

    (1996) Selected Essays, Vol. II: Ethics and the Theory of Rationality. AltanticHighlands, NJ: Humanities Press.

    (1998a) Auflsung der Diskursethik? Dritter Versuch, mit Habermas gegenHabermas zu denken, in Karl-Otto Apel, Auseinandersetzungen, pp. 727838.Frankfurt am Main: Suhrkamp.

    (1998b) The Problem of Justice in a Multicultural Society, in R. Kearney and M.Dooley (eds) Ethics in Question, pp. 14563. London/New York: Routledge.

    (2000) Globalization and the Need for Universal Ethics, European Journal of SocialTheory 3(2): 13755.

    Brunkhorst, Hauke (1999) Moral und Augenma. Der Kosovo-Krieg und seine Folgen:Wie legal war der Rckgriff auf das Vlkerrecht?, Frankfurter Rundschau, 17 July: 13.

    Habermas, Jrgen (1999) Bestialitt und Humanitt. Ein Krieg an der Grenze zwischenRecht und Moral, Die Zeit, 29 April.

    Kant, Immanuel (1995a) Idee zu einer allgemeinen Geschichte in weltbrgerlicherAbsicht, Akademie-Ausgabe VIII: 1531.

    (1995b) Zum ewigen Frieden, Akademie-Ausgabe VIII: 34186.Naumann, Klaus (1999) Der Krieg gegen Serbien war ein Erfolg. Aber ein Muster fr

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  • knftige Krisenmanagement-Operationen war er nicht, Frankfurter AllgemeineZeitung, 1 October.

    Senghaas, Dieter (1999) Recht auf Nothilfe, Frankfurter Allgemeine Zeitung, 12 July.

    Karl-Otto Apel was born in 1922 and was full Professor of Philosophy at theUniversities of Kiel, Saarbrcken and Frankfurt (until 1990 when he becameEmeritus Professor). He has held numerous visiting professorships in the USA, Italy,Spain, Belgium, France, Brazil and Korea. He has published many books which havebeen translated in several languages on the philosophy of language and its history,the philosophy of the social and cultural sciences, on transcendental semiotics andon the transcendental pragmatic foundations of discourse ethics. Address: AmSchillertempel 6, 65527 Niedernhausen, Germany.

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