With the invasion of Ukraine ordered by Vladimir Putin, territorial war has returned to Europe.
Unlike the armed conflicts and civil wars, we have known in the world since the fall of the Berlin Wall, this time the legal framework is much clearer.
With the military attack on Ukrainian territory, Russia has violated Ukraine’s sovereignty. Russia, as the aggressor, has attacked Ukraine, as the victim of aggression, in order to administer Ukraine in the future by means of a puppet government at Russia’s mercy. According to the Russian reading ofinternational law, the sovereignty of the Ukrainian people and their right to self-determination only have legitimacy as long as they correspond to Vladimir Putin’s imperialist ambitions. In the event of a revolt of the Ukrainian people against Vladimir Putin’s policies, this would, according to Russian understanding, be a sufficient reason to start a war.
It goes without saying, but should nevertheless be mentioned, that the argument used by Vladimir Putin to justify this aggression, an alleged genocide against the population of the Russian minority in Ukraine, is nonsense. The International Court of Justice in The Hague clearly stated in its decision of 16 March 2022 that no genocide is being committed against the Russian-speaking minority in Ukraine.
It is not only a matter of differences of opinion about whether Ukraine should be reintegrated into the historical system of states with Russia that existed until 31 December 1991, which already had no democratic legitimacy before that, but also about the opposition of two value systems.
On the side of the Russian aggressor is a model that relies on violence as a means of enforcing authority and in which some observers see a counter model to the questioning of a liberal order. On Ukraine’s side are the classical state principles of selfdetermination and democratic sovereignty. These originate from European philosophical thought and were proclaimed in the course of the French Revolution and recognized with the Universal Declaration of Human Rights. The attack on this value system affects all Europeans and does not end at the Ukrainian borders, which Ukraine shares with its European neighbours. Human rights have universal effect and the dignity of human beings must be respected everywhere!
In response to Ukraine’s demand for support from the international community, Russia is threatening to use nuclear weapons to deter any direct or indirect support in advance. Therefore, it is necessary to restore the balance of power by re-establishing nuclear deterrence, which requires a determined support of all transatlantic security partners in order to enforce conventional military support for Ukraine, which guarantees its survival but also the survival of Europe.
The restoration of nuclear deterrence is a prerequisite for ending the war
Rebalancing the policy of nuclear deterrence seems to be the sine qua non for any military support to Ukraine, in particular to enforce a no-fly zone as a first step. However, the rebalancing must be done within the law so as not to use illegitimate force like Russia itself.
The legal framework of nuclear deterrence
At first glance, the international legal order has no norms governing the use of nuclear weapons. The only specific conventions are disarmament treaties. Customary international law is also not in sight. The nuclear powers have never accepted a binding legal regime in their use of nuclear weapons. However, humanitarian law contains some clarifications, especially with regard to the protection of civilians. Article 51(2) of the First Additional Protocol to the Geneva Convention prohibits parties from using force or threat of force against the civilian population. In this respect, attacks without distinction between civilians and soldiers are also prohibited. It is therefore usually recognised that the use of weapons of mass destruction and the threat of their use are prohibited. Several states consider that the use or threat of use of nuclear weapons is prohibited. However, no state that possesses or may possess such weapons supports this restrictive interpretation. The International Court of Justice, in its Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons, prepared at the request of the United Nations General Assembly, pointed out that “neither customary international law nor international treaty law contains a complete and universal prohibition on the threat or use of nuclear weapons as such” (p. 266). The use of nuclear weapons would a priori violate international humanitarian law. Depending on the context, however, the question remains open as to what happens when the existence of a state is at stake.
Nuclear deterrence is a prerequisite for restoring peace in Ukraine
The threats made by Vladimir Putin are not only directed against Ukraine, but against anyone who wants to help Ukraine. Apart from the fact that the legality of this threat is in a legal grey area because the provisions of the Geneva Convention could not be guaranteed, it also opens up the right of self-defence to states that are subject to this threat and thus to the totality of Western, European states. The threat of a nuclear retaliatory strike by these states following Vladimir Putin’s threat is therefore not only legally justified, but also politically necessary. Since the Cold War, humanity has lived with the threat of one day destroying itself due to a nuclear conflict. There have already been historical examples of this, in particular the famous Cuban Missile Crisis. For a week, the world’s population lived in fear of an immediate and total destruction of the world they knew. History shows here that when two sides threaten each other with annihilation through nuclear weapons, they are forced to talk and de-escalate.
Paradoxically, this situation requires the threatened side to threaten to use nuclear weapons in order to restore a balance of power. This situation requires, in particular, the ability to withstand pressure and not to capitulate even under the threat of the use of nuclear weapons by the other side.
How can Ukraine be supported militarily?
The question arises as to the legal boundaries between support and conflict involvement in order to find the appropriate level of assistance for Ukraine.
Legal framework for military assistance to a state at war
Since the introduction of the United Nations Charter, the concept of neutrality, as defined in the Convention of 18 October 1907, respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (V. Convention of the II Hague Peace Conference.), has been largely revised by international usage.
Armed conflict, with exceptions, had become illegal. However, the international community has always accepted that assistance be given to the state under attack. This created a hybrid status between neutrality and war, which was enshrined as the status of the neutral power in the designated Hague Convention.
A grey area is how much support can be provided without being considered belligerent oneself. For example, the delivery of weapons, regardless of their nature, is still seen as non-belligerent support, but concrete logistical support, such as supplies or the provision of airfields on state sovereign territory in order to be able to carry out strikes against the enemy, could already be considered an act of war. At this point, one must question the double standards that apply to Vladimir Putin’s government when Russia threatens Romania with retaliation for making its air facilities available to the Ukrainian air force, while Belarus, on the other hand, carries out identical actions, yet without this being considered by Russia as an act of war, but only as support for a “special operation”!
In addition to the status of the supporting state supplying weapons, the supply of the weapons itself is also regulated by international law. While the USA or Russia are not parties to the 2013 Arms Trade Treaty under international law, most European states are, including Germany, the UK and France. They have pledged not to authorise arms transfers if they have “knowledge at the time of authorisation that such arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined in international agreements” to which they are parties. Even in the event that the Ukrainian government were to violate the Geneva Conventions by filming Russian prisoners of war, the weapons supplied cannot be used to carry out such propaganda, no matter how illegal this would be.
Weapons and the no-fly zone: A binding regime to protect international law
Supplying arms to the aggressor implies a moral violation of international humanitarian law. At this point, it must be recalled that Russia has no regard for any human rights. According to statistics from March 2022, the Russian Federation has been condemned more than 290 times by the European Court of Human Rights due to the military methods used by Vladimir Putin in Chechnya. Within the framework of the Abdulkhanov v. Russia judgment of October 3, 2013, the Russian government itself admitted the incompatibility of its military doctrine with the observance of the Convention, stating that when the Russian army acts, human rights are violated. This was also stated when Russia was condemned in the course of the invasion of Georgia.
There is also a certain cynicism in the debate about yes or no to arms deliveries, as it raises the question of whether this does not mainly favour the aggressor so that he can achieve his goals even more quickly. It is not a crime to fight for one’s fundamental rights and the future of one’s nation and its self-determination. These legitimate aspirations, which are also supported by European values and grounded in law, deserve firm and resolute support from all states.
In any case, pacifism remains the only morally defensible position. War is the aggressor’s business and a state of affairs wanted only by Vladimir Putin. He is responsible for the deaths of Russian conscripts who are in fact under his (the state’s) protection. He is responsible for the deaths of Ukrainian citizens caught up in an unlawful and inhumane conflict. Peace will only be achieved through the restoration of Ukraine’s full and unrestricted sovereignty over its territory and respect for its citizens’ right to self-determination, and for this the Ukrainian army must be given the means to defend the rights and freedoms of its citizens, because otherwise our rights and freedoms will also become meaningless.
Now that Russia is legally obliged to immediately cease all military operations on Ukrainian territory following the decision of the International Court of Justice of 16 March 2022, made in view of the UN Genocide Convention, it is time for the United Nations General Assembly to adopt a resolution in support of the establishment of a no-fly zone on the basis of the Uniting for Peace Resolution (also: Acheson Resolution). This resolution gives the General Assembly the power to adopt resolutions aimed at proposing all expedient measures to end a threat to global security once the Security Council has failed to keep the peace, which is the case today (as it was then) because of the Russian (Soviet) veto.
Such a zone as a first step is the only way to ensure real humanitarian corridors and to limit and prevent the bombing of civilians so that the 2,000 – 3,000 civilian deaths reported by Ukraine (the numbers vary and are not yet independently verified by the UN High Commissioner for Human Rights) since the beginning of the invasion due to the inaction of the international community will not also turn into 350,000 documented deaths, as in Syria!
Article 51 of the United Nations Charter further guarantees to any state under attack the right of legitimate self-defense, which may be collective. This right is only limited once the United Nations is in a position to take effective measures to secure peace, which is not the case in the current situation. The establishment of a no-fly zone is requested by Ukraine on its own territory as part of a collective self-defence measure. Ukraine still has full sovereignty over its airspace in accordance with international law, even if this is violated by Russia as the aggressor state. Ukraine therefore rightly demands that third states ensure this sovereignty on its behalf in order to guarantee its legitimate defence.
The combination of Ukrainian sovereignty over its airspace and the United Nations’ responsibility for peacekeeping argues for the establishment of such a no-fly zone. The point here (as a first step) is not to fight the Russian army or to bomb Russian conscripts, but to prevent war crimes against the civilian population and to expel warplanes not authorised by Ukraine from its sovereign airspace. The defence of Ukraine’s air sovereignty is thus a first prerequisite for a just resolution of the conflict. In order to be able to credibly enforce this against Russia, one cannot avoid enforcing this no-fly zone with the threat of using nuclear weapons. Serious peace negotiations require a balance between the parties in the negotiation phase and that Vladimir Putin’s unilateral violations of international law and human rights be met with a sharp response from the international community with the support of all transatlantic security partners.
Russia has unfortunately maneuvered itself into a dead end and isolated itself. The Western liberal democracies in their handling of this crisis, however, unfortunately, too! The goal of the international community must be to bring about a negotiated solution that accomplishes the feat of restoring Ukraine’s sovereignty within the borders that were in effect until 2014 and, in the long term, allowing Russia to become a member of the international community once again. It seems difficult to imagine that this will succeed under the current President Vladimir Putin, who obviously lives in a reality of his own. In order to solve the conflict, however, a further escalation on the part of the West is indispensable, since, as the Cold War and the resolution of the Cuban Missile Crisis have shown, only such an escalation can guarantee that the Cold War will not turn into a hot war. It should be remembered that Russia has tactical nuclear weapons stationed on European soil in the form of Iskander missiles in Kaliningrad, which can presumably reach all major European cities and against whose use an effective deterrent does not exist and is not in sight.
It was already a clear mistake on the part of the transatlantic partners to rule out the use of ground troops in Ukraine, as this only encouraged Russia to implement its mad campaign of conquest against Ukraine. So the West should not make the same mistake a second time with regard to nuclear deterrence. Only by clearly and credibly showing Russia the limits of its policy and, if necessary, being prepared to use nuclear deterrence to enforce the establishment of a no-fly zone in order to prevent a further escalation of this conflict, will it perhaps still be possible to animate liberal forces in the Russian government apparatus to distance themselves from the current government and to look for ways out of this situation. Otherwise, there is a danger that the date of Feb. 24, 2022 of Russia’s invasion of Ukraine will be found in the history books as the date for the beginning of a new world war, and in the end, the West will get exactly what they actually wanted to prevent. Europe has been on the brink before because the appeasement policy applied against a criminal aggressor did not achieve the hoped-for effect. The rest of the history is known and the Munich Agreement should actually be warning enough against indulgence towards an aggressor state!