sSince the beginning of the war in Ukraine, international law has finally got rid of its reputation as an orchid. In legal education, it still does not play the role it deserves. But now, not only in the Bundestag, but also on talk shows and on kitchen tables, the point at which military support for the Ukrainian Armed Forces means going to war is being discussed. Last week, interest in this issue was especially high because the German army trains Ukrainian soldiers at the artillery school in Idar-Oberstein in the Rhineland-Palatinate in the Panzerhaubitze 2000, which Germany wants to supply Ukraine.
It is not uncommon in these discussions to hear the argument that Germany’s entry into the war must be prevented at all costs because the next step would be for Russian missiles to strike German soil. In any case, this is wrong when it is claimed that Russia has the right to attack German territory in such a situation.
The federal government is not entirely innocent of the fact that this impression was nevertheless able to emerge. At the end of April, Chancellor Olaf Schultz (Social Democratic Party), when asked about Kyiv’s demands for more weapons in Spiegel, said that the creation of a no-fly zone would make NATO a party to the war. As a federal advisor, he must do everything “to prevent the escalation that leads to World War III.” There should be no “nuclear war”. Marco Buschmann, the Federal Minister of Justice of the Free Democratic Party, also made an indirect connection between Germany’s entry into the war and retaliatory military action by the Russians on German soil in a government survey in the Bundestag last week. Bushman justified the fact that arms shipments to Ukraine should not be considered an entry into the war by saying that Russia should not have the right to “shoot Germany for delivering something to Ukraine with which it could wage a legitimate defensive war”.
The UN Charter allows for self-defence assistance
Of course, the question of whether Russia attacks other countries is not primarily a legal question. No one can rule out this happening. It is not possible to predict what the ruler, Vladimir Putin, is planning. It is possible that in the absence of a resounding success in Ukraine, he wants to show his strength. He has proven a lot that he does not care about international law. However, the West will not be able to completely avoid this danger by refraining from doing anything that would provoke Putin. The past has shown that Putin does not need the West’s help to build pretexts for an attack.
The situation is different under international law. And if you have to say that international law has nothing to say in this war, you must be careful not to use it as an argument in the wrong place. From a purely international point of view, Germany should not hesitate to provide military support to Ukraine because Russia is likely to respond. International law distinguishes between a state at war and the question of whether it is therefore possible to attack that state.
First to the second point, since there is confusion about this in the public debate: if the aim of going to war is to support a country it is attacking in self-defense, then an attack on the territory of the supporting country is a violation of legality. The prohibition of the use of force is thus contrary to international law. If Germany entered the war to help Ukraine in self-defense, that assistance would be covered by international law as a form of collective self-defense (Article 51 of the UN Charter) and any retaliatory action by Russia on German soil would be a violation of international law.
Alexander Winker, an expert in international law and research associate at the Max Planck Institute in Heidelberg, points out that Germany’s status as a party to the conflict has some consequences according to the so-called “law of war”, that is, the law of war: German soldiers, who fought on the side of Ukraine would be combatants in the sense In international humanitarian law, German weapons would be legitimate military targets. This is true even though German military involvement on the side of Ukraine would comply with international law and that Russia’s conduct of the war in Ukraine violated the ban on the use of force.
Separate from this is the question of when the threshold for war will be crossed. There is no clear definition here. For an expert on international law, Whittaker, there are two important elements: “The actions must be part of the military operation,” which means that there must be a direct connection to the combat operations. Second, the actions of the third state supporting self-defense must be coordinated with the attacking party, in this case with Ukraine. “You don’t have to pull the trigger,” Wintaker says. In intelligence cooperation, the transmission of information about concrete military targets can also cross the threshold. In any case, weapons deliveries are not enough, even if they are “heavy weapons”. He does not count and deny the training of soldiers with these weapons either, but he does admit that there are “certain gray areas” in these areas. The scientific department of the Bundestag similarly formulated it in a report released in March.