War in the Ukraine: Where is the limit to Germany's entry into the war?

Since the start of the war in Ukraine, international law has finally gotten rid of the reputation of being an orchid subject.

In legal education, it still does not play the role it deserves.

But now, not only in the Bundestag, but also on talk shows and at kitchen tables, the point at which military support for the Ukrainian armed forces means entry into the war is being discussed.

Last week, attention was again particularly high on this question because the Bundeswehr is training Ukrainian soldiers at the artillery school in Idar-Oberstein in Rhineland-Palatinate on the Panzerhaubitze 2000, which Germany wants to supply to the Ukraine.

Helen Bubrowski

Political correspondent in Berlin.

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It is not uncommon in these debates to hear the argument that Germany's entry into the war must be prevented at all costs because the next step would be for Russian missiles to hit German soil.

In any case, that is wrong when it is claimed that Russia would have the right to attack German territory in such a case.

The federal government is not entirely innocent in the fact that this impression was nevertheless able to arise.

At the end of April, Chancellor Olaf Scholz (SPD), when asked about Kiev’s demands for more weapons in “Spiegel”, said that the establishment of a no-fly zone would make NATO a war party.

As Federal Chancellor he must do everything "to prevent an escalation that leads to a third world war".

There should be “no nuclear war”.

Marco Buschmann, the Federal Minister of Justice from the FDP, also made an indirect connection between Germany's entry into the war and a military act of revenge by the Russians on German soil in the government survey in the Bundestag last week.

Buschmann justified the fact that arms deliveries to the Ukraine should not be regarded as entry into the war by

Aid to self-defense is permitted by the UN Charter

Of course, the question of whether Russia is also attacking other states is not primarily a legal one.

Nobody can rule out that happening.

What ruler Vladimir Putin is planning cannot be predicted.

It's possible that in the absence of a resounding success in Ukraine, he wants to show his strength.

He has proved often enough that he doesn't care about international law.

However, the West will not be able to avert this danger completely by refraining from doing anything that could provoke Putin.

The past has shown that Putin does not need Western help to construct pretexts for an attack.

The situation under international law is different.

And if you have to state that international law has nothing to say in this war, you should be careful not to use it as an argument in the wrong place.

From a purely international point of view, Germany should not hesitate to provide military support to Ukraine because Russia is likely to strike back.

International law distinguishes between a state entering a war and the question of whether this state may therefore be attacked.

First to the second point, because there is confusion about this in the public debate: If the goal of entering the war is to support an attacked country in self-defense, an attack on the territory of the supporting state would be a violation of the prohibition of the use of force and therefore contrary to international law.

If Germany enters the war to help Ukraine in self-defense, this help would be covered under international law as a form of collective self-defense (Article 51 of the UN Charter) and a revenge action by Russia on German territory would be a breach of international law.

Alexander Wentker, international law expert and research associate at the Max Planck Institute in Heidelberg, points out that Germany's status as a party to the conflict does have some consequences according to the so-called "ius in bello", i.e. the law in war: German soldiers, who fought alongside Ukraine would be combatants within the meaning of international humanitarian law, and German weapons would be legitimate military targets.

This is true even though Germany's military engagement alongside Ukraine would conform to international law and Russia's conduct of the war in Ukraine is violating the ban on the use of force.

Separate from this is the question of when the threshold to war is crossed.

There is no explicit definition here.

For international law expert Wentker, two elements are crucial: "The actions must be part of the military operation," meaning there must be a direct link to the combat operations.

Secondly, the actions of the third country that supports self-defense must be coordinated with the attacked party, in this case with Ukraine.

"It doesn't have to be pressing the trigger," says Wentker. In the intelligence cooperation, the transmission of information about concrete military targets could also cross the threshold.

In any case, weapons deliveries are not enough, even if they are “heavy weapons”.

Wentker does not count the training of soldiers on these weapons, but admits that

that there are "certain gray areas" in these areas.

The scientific service of the Bundestag formulated it in a similar way in a report from March.