Baerbock's statement: Are we at war with Russia?

Wars don't need to be declared.

If they are led, martial law applies.

It is irrelevant how an armed conflict is described: Even in the course of a "humanitarian intervention" or a "special operation" civilians must be protected and prisoners must be treated humanely.

Wars are hardly declared nowadays because they are hardly ever called that.

Russia's attack on Ukraine is such a classic interstate war of such magnitude and potential for even greater escalation that the question of who is involved in it is not just a concern of the Germans.

In fact, one does not become a party to the war by supplying arms, nor by training soldiers.

You could judge it differently if, for example, secret services or special forces support the Ukrainian armed forces in selecting and fighting targets - from wherever.

It is not unlikely that this will happen.

What Russia is doing

But Russia obviously does not make its actions dependent on such distinctions anyway.

In this respect, the most recent statement by Foreign Minister Baerbock is unlikely to herald a new stage in the conflict.

She had said in response to a question at the Parliamentary Assembly of the Council of Europe in Strasbourg on Tuesday: "We are fighting a war against Russia and not against each other."

After the waves had made waves, the Federal Foreign Office pointed out that Russia was not only waging war against Ukraine, but also against the European peace order and international law.

International law is clear: supporting Ukraine in exercising its right to self-defense against Russia's illegal war of aggression, as enshrined in the United Nations Charter, does not make Germany a party to the conflict.

Of course, that doesn't change the clarity of the statement, the context of which also shows that the Foreign Minister was concerned that the West shouldn't be at loggerheads with itself.

She spoke, so to speak, for the West and swore to its unity.

Of course, such statements by Baerbock are rightly placed under a special cone of light.

As Foreign Minister, she can bind Germany under international law.

The Potsdam international law expert Andreas Zimmermann, who has represented Germany before the International Court of Justice on several occasions, recently pointed out in the FAZ objection (faz.net/einsprechen) that the Foreign Minister had already legally anticipated the German Leopard commitment by making an interview statement .

For example, when asked on French radio on January 22 whether Germany would allow Poland to export German Leopard main battle tanks, she said: “At the moment the question has not been asked, but if we were asked, we would not stand in the way. ' When asked, she repeated it.

It is recognized that foreign ministers in particular can bind their state under international law through unilateral declarations.

According to a ruling by the International Court of Justice in The Hague, this applies even if the statement was made at a press conference.

In 1974, for example, the International Court of Justice considered a statement by the French Minister of Defense on the question of whether France would stop its above-ground nuclear tests as relevant under international law in the case of French nuclear tests.

He had expressly confirmed, once again when asked, that the nuclear tests would not only be discontinued in the "normal course of events", which the Court interpreted as an indication that the unilateral assurance was unconditional.

Clarification on Baerbock

The initial formulation chosen by the German foreign minister, Germany, would "not stand in the way" of such a delivery, in turn reminiscent, as Zimmermann emphasizes, of the case law of the predecessor of today's International Court of Justice, the Permanent International Court of Justice set up under the aegis of the League of Nations: In 1933, it had already found that the confirmation by the then Norwegian foreign minister that Norway would “not make any difficulties” with regard to Danish claims regarding East Greenland was binding on Norway under international law.

Norway could therefore no longer deny that the Danish claims existed in relation to the area in question.

A declaration with far-reaching consequences.

In any case, the clarification by the Federal Foreign Office on Baerbock's current statement on the war is a reminder that Germany - like any other country - could legally come to the aid of Ukraine with its own troops.

War does not have to be declared on Russia for this either.

That would be emergency aid to Ukraine on the basis of the United Nations Charter.

But it is also every state's right to limit its aid to the supply of arms and training, with the intention of preventing greater harm.

The western states are political, so Germany has long been a party.

It is said almost every day that they are on the side of Ukraine.

But even the question of whether the attacked Ukraine, which Russia denies the right to exist, should win the war, is avoided.

In this respect, Baerbock's statement stands out.

She reminds you that you may have to show your colors at some point.

And the Foreign Minister herself is reminded that her statements can be of considerable importance - especially in times of war.

One should agree that at the end of the process there must always be a victory for the law.