The fact that Germany is supplying arms to Ukraine is a turning point in foreign policy. It means – but is that really the case? The international law expert Isabelle Ley, who researches at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, explains in an interview that the step is by no means new and why weapons could have been delivered even before Russia invaded.
How surprised were you by the arms shipments?
Of course, this turnaround came as a surprise to many, including me. I was very depressed before that a democratic country in Europe was being attacked in violation of international law and that Germany was more or less standing by and doing nothing. I found that unbearable. Nevertheless, this turnaround has been announced for a long time, also with regard to the other decisions announced by Chancellor Scholz on Sunday.
In what way?
dr Isabelle Ley conducts research at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.
For a long time, Germany’s basic foreign and security policy stance has been described as one of “strategic restraint”, which means that the Federal Republic has so far tended to stay out of conflict situations, at least militarily, and has only participated militarily under great pressure from its partners, with rather small contributions. At the same time, there is a strategic deficit in Germany in the sense of a deficit in strategic debates. The traffic light coalition has announced that it will present a security strategy for Germany for the first time.
What do you make of it?
I very much welcome that. After this turnaround, it is essential to explain this and to consider how Germany will position itself in the medium and long term in terms of security and defense policy, including with regard to foreign missions. The whole field of security policy analysis has long been pushing for more public discussion of this.
Why?
Since the Russian invasion of Crimea, at the latest since Brexit, Trump’s election and the strengthening of authoritarian regimes, the security policy context in which we find ourselves has darkened considerably. It is all the more important that Germany, as its partners have long been demanding, actively engages in these issues and plays a responsible role. Nonetheless, I am surprised by the decision to deliver arms to Ukraine after the Federal Government’s previously strictly negative stance.
Is this really such a big turnaround?
There were repeated German arms deliveries to crisis areas. Some of the first shipments of arms after rearmament went to Israel in the late 1950s. In recent years, Germany has supplied frigates and other systems to Egypt, where we see human rights violations and which is involved in the Yemen coalition and has been repeatedly involved in armed conflicts with Libya. It is delivered to Israel and Turkey, which are involved in the conflict in Syria. In addition, until the murder of Kashoggi, Saudi Arabia was supplied to a large extent, among other things, with a large number of patrol boats. As is well known, in 2014 the German government equipped the Kurdish Peshmerga in Iraq with weapons, as did the Afghan army. So it is not the first time that Germany has delivered armaments to a crisis area. In this respect, the principle of not doing this was not as strong as that presented by the Foreign Minister and the Federal Chancellor.
How did that fit together?
Of course it didn’t go together. It is a contradiction to set up this principle on the one hand and to violate it again and again on the other. That was repeatedly criticized. But it was always a bit under the radar of the great attention and public debate. And this made the contradictory practice of the Federal Republic possible.
Why are the arms deliveries now causing the principle to no longer apply?
You cant say it like that. Part of the principle is an exception for recipient countries that are being attacked in violation of international law and therefore have a right of self-defence under Article 51 of the UN Charter, such as Ukraine. Strictly speaking, in contrast to many other cases in which the international legal situation is often less clear than it is now, one cannot say, strictly speaking, that the principle has been abandoned. At the same time, of course, there is still a certain political and communicative contradiction, if only because the Federal Chancellor and the Foreign Minister referred to the principle and not the exception until the end of last week. Now the federal government has to explain itself again.
The principles are not off the table?
No. As I said, the current deliveries to Ukraine do not, strictly speaking, represent a breakthrough. Rather, one can say: If weapons have any sense and a legitimate application, then that unlawfully attacked states and their citizens want to fight for their sovereignty and freedom , so that you can defend. I don’t think the traffic light coalition will increasingly supply states in conflict situations in which such a right does not exist. Quite the contrary, as the Foreign Minister confirmed at the beginning of her term of office.
In this case, arms deliveries are in order under international law?
Yes. International law is based on the principle that all states are sovereign and that there is the right to defend oneself against attacks that violate international law, as is now the case in Ukraine. In order to be able to exercise its right of defence, a state must also be able to produce or buy arms. In return, other states are allowed to sell weapons. This finds a limit in armed conflict. A delivery to the aggressor would, according to the international law of state responsibility, constitute an act of support of an attack contrary to international law.
Can any type of weapon be delivered?
There are a number of weapons that are banned by international conventions due to the fact that their effects cannot be controlled or can cause serious injury to civilians, such as cluster munitions, biological or chemical weapons. From the point of view of international law, other states may not only support the unlawfully attacked state by supplying arms, but also with defensive actions.
Some think that help is now too late.
Even before the Russian attack, I would have considered arms deliveries to Ukraine possible under international law. Even if the Russian leadership claimed that it was not planning an attack, it could have been justified because Russia had previously attacked Ukrainian territory and had threatened the use of force at the latest since the massive troop deployments on the border, thereby violating the ban on violence and intervention violated Article 2(4) of the UN Charter.
So Germany is allowed to deliver weapons. But should it also supply weapons?
That is a question of political judgment. As a specialist in international law, I am no more competent than others to answer these questions. My personal assessment, even before the federal government changed its position, was that I find it very plausible in this situation that we stand by our European neighbour, who has been fighting for democratization for years.
Some now say that supplying arms will only prolong the suffering in Ukraine because it is already mercilessly inferior to the Russian army.
Perhaps the situation would have been different if the Ukrainian army had been better equipped by the NATO countries, at the latest after the annexation of Crimea in 2014 made it clear that Russia had plans to take aggressive action against Ukraine. It may be, but it doesn’t matter now. But I think these are considerations that the Ukrainians must make themselves. Apparently it is more important to them to defend their country and their freedom with all their might and with great courage. It would be a bit cynical and also paternalistic to say: Lay down your arms, you don’t stand a chance anyway. At the same time we supply high-quality material to regimes like that of Al-Sisi in Egypt.
Should Germany have acted earlier?
Germany’s most important contribution to avoiding the current situation would have been to consistently cut gas imports from Russia. These have contributed to the fact that Russia, whose income comes largely from raw material exports, can finance this war at all. On the other hand, it would of course have been absolutely crucial if the West had already concluded and consistently not only condemned Russia’s actions in 2014, but also sanctioned them as it is doing now. Perhaps the lukewarm reaction of even the largest EU member state signaled to Russia at the time that it could invade a neighboring European country largely unscathed. I also think that German history, which is repeatedly referred to, allows for anything but clear conclusions: the Nazis were not defeated by pacifists.
Why did Germany take it upon itself not to deliver weapons to crisis areas if it couldn’t hold out?
The principle has been around for a long time, it was first formulated in the early 1970s under the then Minister of Defense Schmidt. Even then there were critical voices and scandals about the arms export policy, which had gained momentum relatively quickly since rearmament in the 1950s. The federal government reacted to this at the time. They only wanted to deliver weapons to NATO countries and not to crisis areas and they should only be used for defense purposes. Incidentally, this declaration still has no legal quality. There are now other criteria that, according to the principles, should be included in the delivery decisions; these were last changed in 2019. Today, in principle, they want to supply EU and NATO partners as well as Switzerland, Australia, New Zealand and Japan with weapons. For the other countries, the so-called third countries, there should always be a case-by-case decision.
The traffic light coalition has announced a law on arms exports. What could criteria for arms exports look like?
I assume that the previous political principles will be cast in legal form. It would be ideal if greater clarity were also created as to whether and in which cases exports to third countries, i.e. countries that are not members of the EU or NATO or are equivalent to them, are possible and if so, under what conditions. And if there were also a debate in Parliament about the basic line of the federal government on this issue. The enactment of a law is of course well suited for this. In addition, the introduction of stricter control options would be helpful: So far, the Federal Security Council has decided in secret, especially in the case of controversial third-country exports, whether the export of armaments should be approved or not. The Bundestag is only informed afterwards about the key data of the approval. As a rule, there is no judicial control, and admittedly it is also difficult, because the decisions are of course based on highly political foreign and security policy considerations, which are difficult to review in court and are sometimes kept secret for good reasons. Nevertheless, there are also clearly illegal permits, which must be judicially controllable.
Volker Petersen spoke to Isabelle Ley