Critics of Western arms sales to Ukraine see NATO on the way to becoming a war party. In any case, Putin presents his war as a defense against the West. Both are wrong under international law.
Not only a statement by Federal Foreign Minister Annalena Baerbock last week at the Council of Europe in Strasbourg, but above all the ongoing discussion about further arms deliveries to Ukraine have put an old question back on the agenda: when is a country a party to a war?
The question has a political and an international law level. In terms of international law, the matter is complicated, but the bottom line is clear: "International law allows the Western states, and thus also Germany, to supply Ukraine with everything to keep it defendable," says international law expert Matthias Herdegen in an interview with ntv. "It doesn't matter whether it's laundry, ammunition or battle tanks." According to the director of the Institute for International Law at the University of Bonn, a country does not become a party to the war by supplying arms, but only when it "intervenes directly in the conflict with its own soldiers, with its own armed forces".
However, this is not clearly coded. The very idea of a formal declaration of war comes from a time when war was seen as a mere continuation of politics by other means, as the Prussian army reformer Carl von Clausewitz famously quoted. At least that is no longer the case under international law: the United Nations Charter declares wars of aggression illegal. Since then, states have tended not to formally declare wars, because that would obviously put them in the wrong. This may also be one of the reasons why Russia has only referred to its attack on Ukraine as a "special operation" to this day.
Baerbock, on the other hand - presumably thoughtlessly - spoke of participating in the war. "We are fighting a war against Russia and not against each other," she said at the Parliamentary Assembly of the Council of Europe in Strasbourg. Even if this was clearly meant as an appeal to European unity, the first part of the sentence attracted significantly more attention. However, Germany has not become a party to the war or conflict as a result - not even if Baerbock meant her sentence literally. In order to become a party to a war, it is "no longer a matter of the states' subjective will to go to war, but exclusively of the objective facts of the international armed conflict," wrote international law expert Stefan Talmon months ago in the constitution blog. "This is the case as soon as a state uses armed force against another state."
Theoretically, direct military assistance to Ukraine would even be permitted under international law, because the UN charter expressly emphasizes "the natural right to individual or collective self-defence." Collective self-defence would also mean the deployment of troops, as long as they only served to defend Ukraine. However, NATO clearly ruled this out from the start so as not to allow the war to escalate beyond Ukraine's territory.
US President Joe Biden has also said several times that the US will not send troops. When he explained the deployment of main battle tanks last Wednesday, Biden expressly emphasized that this was "not an offensive threat to Russia". Because: "If the Russian troops returned to Russia, they would be where they belong and this war would be over today."
The horrifying image of a direct Western entry into the war is nevertheless repeatedly attempted to rhetorically escalate the discussion, for very different reasons. This applies above all to the Russia friends in the AfD and Left Party, but not only. "The same people who are calling for going it alone with heavy battle tanks today will be screaming for planes or troops tomorrow," said SPD parliamentary group leader Rolf Mutzenich. That was before the decision to supply Leopards was made. However, unlike the AfD and the Left Party, the point here was not to completely prevent arms deliveries, but rather to discredit the Chancellor's critics in the FDP and Greens. Similarly, the SPD foreign politician Ralf Stegner asked what comes after battle tanks. "Will the next thing be fighter jets or fighter ships, are we going to talk about troops at some point?"
When the decision became known that Germany would supply battle tanks to Ukraine, Chancellor Olaf Scholz, like Biden, emphasized that this would not involve entering the war. "No, absolutely not," Scholz said on ZDF when asked a question. "There must be no war between Russia and NATO."
Naturally, Russia sees things differently - at least the Russian government pretends to see things differently. From their point of view, the whole of NATO has long been a war party. What is happening in Ukraine is no longer a hybrid war, but a real war, Russian Foreign Minister Sergei Lavrov announced in South Africa a week ago - Lavrov not referring to Russia's own war of annihilation against Ukraine, but the alleged attempt by the West to "establish everything to destroy Russians in Ukraine".
For Putin, the "special operation" is anyway a fight against NATO, purely defensive, of course. "The aim of the West is to weaken our country, to torpedo its unity and ultimately to destroy it," the Russian ruler claimed in his mobilization speech in September. In Ukraine, the Russian army not only faces "neo-Nazi units" but "actually the entire military machine of the collective West." There is hardly a Putin speech without such allegations.
Putin's spokesman, Dmitry Peskov, stressed that the Kremlin saw the tank deliveries as "direct involvement in the conflict." This was also claimed by Nikolai Patrushev, Secretary of the National Security Council. "The course of the special military operation in Ukraine shows that the United States and NATO want to continue their efforts to prolong this military conflict and that they have become its participants," said the Putin confidant.
To keep the Russian narrative of NATO involvement in the war alive, Moscow needs neither battle tanks nor inaccurate quotes from Western politicians. Putin and his apparatus craft their propaganda independently of reality. Whether Germany or other NATO countries become a war party in their worldview depends only to a limited extent on facts.
