Krajewski, Markus

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Neither Neutral nor Party to theConflict?Markus Krajewski 2022-03-09T14:00:36Russia’s attack on Ukraine marks a profound turning point in Germany’s foreign andsecurity policy. For the first time, Germany supplies weapons to a party to an armedconflict. At the same time, military spending will be increased significantly, and eventhe reintroduction of compulsory military service is being discussed. Whether thewar will also lead to a paradigm shift in international law is less clear. The relevantrules of international peace and conflict law have been flagrantly violated by Russia.However, their validity is not questioned by the international community, as the UNGeneral Assembly resolution of 1 March 2022 impressively demonstrated. However,an old sub-field of international humanitarian law is experiencing a renaissance withthe question of whether Germany is violating the neutrality requirement by supplyingarms to Ukraine.For a country like Germany, which for historical reasons has so far refrained fromsupplying arms to parties to an open armed conflict – but which is nonetheless theworld’s fourth-largest arms supplier – the question of how to assess military supportfor warring parties under international law arises for the first time in the context of thecurrent war in Ukraine. While some try to reconcile arms deliveries and the neutralityrequirement with the help of the concept of “qualified neutrality” or by referring to“moral-philosophical” arguments, others do not want to attach any importance tothe law of neutrality in the current case. In this post, I develop an argumentationbased on positive law focussing on the categorical distinction between unlawful andlawful use of force and taking into account the functions of both the UN Charter andinternational humanitarian law.The Law of Neutrality: Foundations and FunctionThe foundations of the law of neutrality can still be found in two conventions adoptedat the Second Hague Peace Conference in 1907: Convention (V) Concerning theRights and Duties of Neutral Powers and Persons in Case of War on Land andConvention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War.The essence of both conventions is that a neutral state, i.e. a state not involved inan armed conflict, may not make its territory available to support one of the parties.Despite certain ambiguities in the text, the supply of arms and ammunition to a partyto a conflict is also considered a violation of the obligation of neutrality. Whether andto what extent these rules also (continue to) apply under customary law is debatable,but need not matter in view of the clear starting position under treaty law.However, it must be asked whether the Hague Conventions, despite their continuedformal status as applicable treaty law, can still claim validity today. First, it isconceivable that the rules have become invalid due to non-use or new customary- 1 -law (so-called desuetudo). However, the conditions under which a treaty loses itsvalidity under customary law are disputed. It is true that the Fifth Hague Conventioncurrently has only 34 contracting parties, most of whom acceded at the beginning ofthe 20th century. However, there were some accessions after World War II and evenone accession after 1990: Ukraine joined the treaty in 2015. For this reason alone, itcannot be argued that the convention lost validity.However, when thinking about the law of neutrality today, the historical backgroundof its emergence must be taken into account: At the beginning of the 20th century,war was not yet legally outlawed as a means of international relations. There wasa largely unrestricted ius ad bellum. In addition to the humanitarian goals of theinternational law of war, it was primarily a matter of ordering legal positions in viewof the fundamentally “lawless” possibility of resorting to military force. In this respect,it was (also) necessary to regulate who was involved in an armed conflict in thelegal sense and who was neutral, and what legal consequences resulted from this.Against this background, it seemed sensible to subject the participation of states inconflicts to a regime in which they were either neutral or party to the conflict.From ius ad bellum to ius contra bellum: The Significance of the Prohibition ofthe Use of Force for the Right of NeutralityThe prohibition of the use of force, which was established by the Kellogg-Brian Pactand is now firmly anchored in Art. 2 (4) of the UN Charter and in customary law,has fundamentally changed the legal situation dating from before World War I. Thefundamental norm of peace and security law now no longer concerns the question ofwho is involved in a conflict, but whether the use of force is unlawful or exceptionallylawful. International law on armed conflicts no longer seeks to regulate forms ofparticipation, but rather to legally evaluate the exercise of armed force.The use of force is lawful if it has been mandated or authorized by the UN SecurityCouncil. Apart from UN peacekeeping missions, this was most recently the case in2011, when the Security Council allowed UN members to use “all necessary means”against Libya to protect civilians from attacks by the Libyan government. It is likelythat this was the last UN Security Council decision with such a mandate for a longtime. The second justification is therefore likely to become even more important inthe future: the right of self-defense. According to this, military force can be justifiedif it is used for the purpose of self-defense. Under charter and customary law, bothindividual and collective self-defense are justified.There is no question that since 24 February 2022, Russia has been conducting anunjustifiable armed attack that meets all the characteristics of the 1974 Definitionof Aggression. Ukraine is thus entitled to the “inherent” (Art. 51 UN Charter) right ofself-defense. At the same time, all states that support Ukraine in its defense againstthe Russian attack with armed force could also invoke the right of self-defense ifUkraine had asked for their support. Such a use of military force would thus belawful and cannot entail reprisals, as the International Law Commission has stated inArticle 21 of the Draft Articles on State Responsibility. This justification prevails overother obligations under international law.- 2 -The question now arises as to why this should not apply if a third state does notitself intervene on the side of the defending state, but “merely” supports it withweapons. If one were to regard the “mere” supply of weapons as a violation of theneutrality requirement and thus as contrary to international law, this would lead to acontradiction of values: The state intervening more strongly in the conflict would beacting lawfully, while the state intervening less strongly would be acting unlawfully.Such a view would also create an incentive to participate directly in a conflict. Itwill therefore be possible to regard the supply of arms to the defending state as a“minus” compared with active participation and therefore also as justified.Conversely, the – possibly formerly neutral – state that supports the aggressor witharms deliveries and otherwise either becomes an aggressor itself according to Art. 3lit. f) of the Definition of Aggression if it makes its territory available for carrying outthe aggression, or commits aiding and abetting aggression in the sense of 16 of theDraft Articles on State Responsibility. These legal assessments also override theviolation of the neutrality requirement.Possible Objections: Purpose of International Humanitarian Law andPrevention of Further EscalationThe a maiore ad minus conclusion developed above faces two weighty counter-arguments: first, one might object, it blurs the strict distinction between ius adbellum (the law of prevention and justification of force) and ius in bello, which alsoprotects the aggressor regardless of the legality of the use of force. However,this principle must be guided by the main protective purpose of internationalhumanitarian law after 1949: The protection of those particularly affected by militaryforce (wounded, prisoners, civilians) and not the qualification of states as participantsin a conflict. Even if one justifies the violation of the formally applicable duty ofneutrality by recourse to the right of self-defense, this does not lead to a reduction ofthe principles of treaty and customary humanitarian law as it developed after 1949.A second, perhaps more substantial, objection concerns the danger of escalation ofarmed violence that the law of neutrality is designed to counter. Arms supplies andother assistance are intended to support one side and thereby enhance its militarycapabilities. This can lead to a prolongation of the conflict and thus, in effect, to itsescalation. Moreover, there is a risk that the aggressor will respond with further –but in this case again unjustified – violence. From a legal point of view, however, theargument developed here does not increase the risk of escalation. Arms deliveriesare only justified if they support the legitimately defending state. The fact that inrecent decades states have repeatedly invoked the right of self-defense unjustly isnot a valid objection: The state providing support bears the risk of providing supportin violation of international law itself. That this is low in such clear-cut cases as theUkraine war is obvious. In this respect, a clear assessment by the General Assemblyis also likely to play a significant role in such cases. Moreover, the view here leadsto the conclusion that the state that wishes to support a self-defending state in amanner that is in conformity with international law is not limited to active participationin the conflict.- 3 -When is a State Party to a Conflict in the Sense of International HumanitarianLaw?The question of when a state is a party to a conflict within the meaning ofinternational humanitarian law should also not be answered by recourse to thelaw of neutrality. Rather, the rules of the Geneva Conventions and their AdditionalProtocols apply. According to these, a state is a party to a conflict if a personparticipates in a conflict by armed force and this behavior can be attributed to thestate in question. The applicable humanitarian law focuses on who is acting and towhom this action can be attributed – also and especially for the difficult questions ofdemarcation regarding the participation of civilians in a conflict. In this respect, thestate that supplies weapons but whose personnel provide advice and assistance inthe use of the weapons can also become a party to the conflict in this sense.SummaryIn conclusion, it can be stated: If one still considers the law of neutrality to beapplicable, Germany may have violated the neutrality requirement by supplyingarms to Ukraine. However, this violation is not an offense under international lawthat would entitle Russia to reprisals. Rather, arms deliveries are justified as a lessdrastic measure than open participation in the conflict, analogous to the right tocollective self-defense. Nevertheless, Germany does not become a party to theconflict in the sense of international humanitarian law as long as no military forceattributable to Germany is exercised in the Ukraine war. In this respect, Germany isjustifiably not neutral in the war, but it is not a party to the conflict either.- 4 -

Neither Neutral nor Party to the Conflict?

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Neither Neutral nor Party to the Conflict?

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