The Russia-Ukraine War in Germany III. Western support for the Ukrainian defense efforts.

Until 2022  – „Appeasement“ as in 1938

Before the Russian attack on Ukraine – and even after 24 February 2022 – the heads of state and government of France and Germany, as well as representatives of the EU and the USA, and even the Secretary General of the United Nations, António Guterres, pursued classic appeasement policies towards Putin. They ignored the lesson of recent history, namely that appeasement of a belligerent tyrant only leads to war, which was to be prevented with compliance. The memory of „Munich 1938“ was as if erased. Out of „responsibility for the preservation of peace“, as they affirmed, Scholz and Macron behaved like the British and French prime ministers in 1938, like Neville Chamberlain the one, and like Edouard Daladier the other.

In his speech in Warsaw on 21 February 2023, American President Biden compared the invasion of Ukraine in 2022 to Hitler’s invasion of Poland in 1939. Unlike the European „appeasement politicians“, Biden has learned his historical lesson: „Autocrats cannot be appeased, they must be opposed!”¹

French President Macron claimed that Putin was „isolated“ (which is not at all the case in reality). Russia must not be „humiliated“ so that „diplomatic talks“ could take place once the fighting in Ukraine had come to an end.² In his closing speech at the conference on the future of Europe, President Macron had said that Europe must never succumb to the temptation to humiliate Russia. „If peace returns to Europe, we must build a new security balance“.

The Ukrainan President Selenskyj let the public know, that Macron had proposed that Kyiv give up Ukrainian territory – to „help Putin save face“. „We want the Russian army to leave our country; we are not fighting on Russian soil. […] We will not help Putin save face by paying for it with our territory,“ the Ukrainian president replied to his French counterpart on the TV talk show „Porta a Porta“ on the Italian TV channel RAI.³

The Elysée officially rejected Selenskyj’s accusation: the President of the Republic (Macron) had never discussed anything with Vladimir Poutine without President Silenskyj’s consent – and had never demanded concessions from Selenskyj. He had always said that it was up to the Ukrainians to decide on what terms they would negotiate with the Russians.

German President Frank-Walter Steinmeier – as foreign minister the „appeasement politician“ par excellence – apologized in a self-critical statement after Russia’s surprise invasion of Ukraine for his misjudgment of the Russian president, while the self-righteous former chancellor Angela Merkel saw no reason for self-criticism. In her first interview after leaving the chancellery with the „Redaktionsnetzwerk Deutschland“ at the beginning of June 2022, she defended her Russia policy; she had no longer believed in „change through trade“, but she did believe in „connection through trade“. The fact is that Merkel blindly supported the concentration of Germany’s energy supply on Russia (driven by the German energy companies) politically until the end – unimpressed by Russia’s aggressive actions in Georgia, Crimea and the Donbas. In these cases of blatant Russian violations of international law, she was content with ridiculous, because completely ineffective, personalised sanctions against Putin’s „entourage“.

In Bucharest in 2008, after the Russian-Georgian „Five-Day War“, she prevented the „NATO Action Plan“, i.e. candidate status for Ukraine, with the statement: „criteria must be fulfilled by each state“ – a lame excuse; in reality she was appeasing Putin, which the latter took for a carte blanche for his „next target“: the annexation of Crimea.

The Russian war of aggression against Ukraine opened „Berlin’s“ eyes; but even after the „turn of the times“ (“Zeitenwende”⁴) proclaimed by the newly elected Chancellor Olaf Scholz, the paradigm shift in German foreign and security policy faded into months of dithering over the supply of heavy weapons to Ukraine. Before the summits of the EU (European Council on 24 June in Brussels), G-7 (on 26 June at Schloss Elmau / Bavaria) and NATO (on 29 and 30 June in Madrid), German Chancellor Olaf Scholz tried in his government declaration on 22 June 2022 to dispel the impression of hesitancy he had created at home and abroad – without in reality jumping over his shadow.

The German Chancellor’s long-delayed visit to Kyiv finally took place – along with French President Emmanuel Macron, Italian Prime Minister Mario Draghi and Romanian President Klaus Johannis – on 16 June 2022, the 113th day of the war. It probably took the umpressions of the destructions in the city of Irpin‘ he visited – and pressure from the Western Allies – that finally persuaded „Olaf Cunctator“⁵ Scholz to act more decisively with regard to arms deliveries. But in order to motivate  Scholz to agree to the delivery of the “Leopard 2” battle tank, the USA had to agree to deliver the American main battle tank (MBT) “M1 Abrams”.

„Collective self-defence“⁶

On 24 February 2022, the United Nations General Assembly disapproved Russia’s military aggression against Ukraine as a violation of the UN Charter’s prohibition of the use of force and thus confirmed Ukraine’s right of self-defence under Article 51 of the UN Charter.

The right of self-defence of an attacked state under Article 51 of the UN Charter can also be exercised collectively, i.e. in association with other states that come to the aid of the attacked state. It is irrelevant whether a formal defensive alliance exists between these states at the time of the beginning of the act of aggression or whether this emergency assistance is spontaneous after the beginning of the attack.

Article 51 of Chapter VII of the Charter of the United Nations (Chapter VII – Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression⁷) states: „Nothing in the present Charter shall impair the inherent right of individual or collective self-defence (author’s emphasis) if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security“.⁸

According to Christian Tomuschat, in the case of legitimate self-defence, third states may also come to the aid of the country;⁹ it can be organised as „collective self-defence“. Other states are allowed to assist Ukraine against the attack, explained the German international law expert Matthias Herdegen in a (written) interview with the legal magazine „Legal Tribune Online“ / LTO on 1 March 2022. By merely supplying weapons or financial support to an attacked state, a country does not yet become a party to the conflict.¹⁰

When asked by Dr Franziska Kring and Hasso Suliak, Legal Tribune Online / LTO, what possibilities the United Nations Charter provides for reacting to the violation of the prohibition of the use of force according to Article 2 No. 4 of the UN Charter by Russia’s President Putin, Prof. Herdegen replied: „The invasion of Ukraine by the Russian Federation establishes with rare clarity Ukraine’s right of self-defence according to Article 51 of the UN Charter. In this context, other states may also provide support in the form of arms deliveries. At the same time, other states may provide military assistance to Ukraine. The UN Charter speaks here of the right to „collective self-defence“ and thus also means support by armed forces (author’s emphasis). 

Direct military intervention (”support by armed forces”) of other states in the case of Russia’s war of aggression on Ukraine would also be possible without a mandate from the Security Council, Herdegen confirms in response to the interviewer’s question: „Yes, authorisation by the Security Council is not required for this. However, the Western states have so far not made use of this possibility for political reasons, so as not to escalate the conflict. The risks of military intervention by the West are difficult to assess. This is also due to the fact that the current Russian regime is leaving the paths of customary rationality on which we could rely even during the Cold War with the old men in the Kremlin“. This is shown in particular by the Russian president’s undisguised threat of the nuclear option and his willingness to risk Russia’s economic collapse and thus also the shaking of his own regime.

Is Germany a party to the war?

Under international law, Western arms assistance to Ukraine is legal and does not make the supporting countries „belligerents“. Article 51 of the United Nations Charter explicitly allows third countries to come to the aid of a UN member state under attack, including with weapons. Supplying weapons to Ukraine does not make Germany a party to the war.

It is completely irrelevant whether the aggressor Putin regards Germany as a party to the war or not. The concern circulating in Germany that Putin might perceive Germany as an enemy is irrational. Germany and the „collective West“ are already „enemies“ for Putin. Like a mantra, German Chancellor Scholz repeats the sentence that Germany must not become a party to the war. But whether or when Germany is a party to the war is not decided by him, but by Putin, as the philosopher Jürgen Habermas rightly states: „When the West crosses the threshold defined by international law, beyond which it also formally regards military support for Ukraine as the West’s entry into the war, is decided by Putin.“¹¹

1. The White House: Remarks by President Biden Ahead of the One-Year Anniversary of Russia’s Brutal and Unprovoked Invasion of Ukraine, FEBRUARY 21, 2023; https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/02/21/remarks-by-president-biden-ahead-of-the-one-year-anniversary-of-russias-brutal-and-unprovoked-invasion-of-ukraine/
2. According to the French news magazine „Le Point“ in an interview with the French regional press on 3 June 2022. https://english.nv.ua/nation/macron-calls-for-not-humiliating-russia-speaks-of-isolated-putin-50247573.html.
3. TV-Talk Show „Porta a Porta“, RAI, Radiotelevisione Italiana.
4. Speech by the German Chancellor Olaf Scholz to the German Bundestag on 27 February 2022.
5. „Cunctator“, the „procrastinator“, was the epithet of the Roman general (senator, consul and dictator) Quintus Fabius Maximus (275 – 203 BCE). The use of this cognomen for Olaf Scholz is not appropriate, as it has a positive connotation in the case of Quintus Fabius Maximus: In the Second Punic War (218 – 201 BCE), the Roman general was ultimately successful with his defensive tactics of stalling resistance against Hannibal’s Punic troops. In defending against the Russian invaders, the Ukrainian forces must win quick victories in order to avoid a long war of attrition.
6. See Winfried Schneider-Deters: Guest article: „Nuremberg II“ – an international tribunal to try the Russian „main war criminals“, in: IDM Blog, 16.02.2023; Short version: https://www.idm.at/nuernberg-ii-ein-internationales-tribunal-zur-aburteilung-der-russischen-hauptkriegsverbrecher/. Long version: https://www.idm.at/wp-content/uploads/2023/02/Ukraine-NURNBERG-II-Final-230130.pdf. IDM: Institute for the Danube Region and Central Europe, Vienna. English unabridged version (Guest contribution): „Nuremberg II“ – an International Tribunal for the Trial of  Russian “Major War Criminals” accessible in IDM Blog, via link on: https://www.idm.at/en/nuremberg-ii-an-international-tribunal-for-the-trial-of-russian-major-war-criminals/.
7. https://legal.un.org/repertory/art51.shtm
8. Ibid.
9. Christian Tomuschat: Russlands Überfall auf die Ukraine. Der Krieg und die Grundfragen des Rechts (Russia’s Invasion of Ukraine. The war and the fundamental questions of law), in: OSTEUROPA, 72nd Jg., 1-3 / 2022, pp. 33-50. Christian Tomuschat, Prof. em. for Public Law, International and European Law, Humboldt University Berlin.
10. Militärischer Beistand auch ohne UN-Resolution möglich“ („Military assistance also possible without UN resolution“), (written) interview by Dr Franziska Kring and Hasso Suliak, Legal Tribune Online / LTO, with Matthias Herdegen, 01.03.2022, Legal Tribune Online / LTO; https://www.lto.de/recht/hintergruende/h/russland-ukraine-krieg-intervention-gewaltverbot-selbstverteidigung-un-charta/.  Matthias Herdegen is Director of the Institute for Public Law and Director of the Institute for International Law at the University of Bonn. He is also a member of the Center for European Economic Law and Director at the Center for International Security and Governance at the University of Bonn. In 2019, he published The Struggle for World Order. Among other things, the book deals with Russia’s imperial drive and the expansion of its spheres of influence.
11. Jürgen Habermas: Krieg und Empörung (War and Outrage) Gastbeitrag (guest article) in „Süddeutsche Zeitung“, 28. April 2022; https://www.sueddeutsche.de/projekte/artikel/kultur/das-dilemma-des-westens-juergen-habermas-zum-krieg-in-der-ukraine-e068321/