Western Weapons in Ukraine

[Sophia Zademack, MLaw, LL.M. has previously worked with different Human Rights Organizations and is currently a PhD Candidate at the University of Zurich. Luke James, LLM. is a security analyst interested in peace processes. He has worked at the ICC, OSCE, British Red Cross, Platform for Peace Humanity, UNV and is an Army Reservist.]

Summary

The defensive weapons supplied to Ukraine are unlikely at this point to be against international arms trade law. From a legal perspective, offensive weapons that are capable of indirect fire and indiscriminate shelling should not be supplied to Ukraine, as these are likely to be against international arms trade law.

What Has Happened Recently

On 17 January, the UK supplied Ukraine with defensive anti-tank weapons. On the 19th, the U.S. authorised NATO Baltic allies to send U.S-made defensive anti-tank and anti-air weapons, with second and third tranches of U.S. authorised “defensive aid” arriving on 23 and 25 January respectively.

Turkey and Czechia are going one step further; offering or supplying Ukraine with offensive weapons. In 2021, Turkey supplied Bayraktar TB2 drones to Ukraine. On 25 January 2022 Czechia indicated that it would donate a 152mm artillery piece, and 4000 152mm shells.

Contrary to this, Germany adopts a “restrictive position to weapons supply” and has not and likely will not supply weapons to Ukraine.  On 21 January, Germany refused to permit Estonia to transfer German-origin D-30 Howitzer 152mm artillery piece, ostensibly an offensive weapon by design. The UK airlifted its weapons to Ukraine, notably skirting around German territory. Germany did not publicly refuse the UK’s transit – the UK did not request permission – but observers have suggested the answer may have been “nein”.

Putting domestic and geopolitics aside – Germany has been deeply criticised by mainly U.S. media, and “denounced” by the Ukrainian Foreign Minister as undermining western unity – Germany may in part be acting to honour its legal arms trade obligations. As of 28 January, Germany has not offered any weapons, but has offered to construct a field hospital.  Berlin might have intelligence that their German origin D-30 Howitzer could be used against international law by Ukrainian armed forces.

From an international law perspective, Germany’s position on possible illegal use may not be unsubstantiated.

Legal Provisions  

Almost every arms trade carries the danger of developing into an unlawful use of the weapons and – in the worst case scenario – to the perpetration of war crimes.

European governments and corporations have been accused of violating International Law provisions and facilitating war crimes, for example supplying weapons used in Yemen, Rwanda, and Iraq.

Germany’s role in arms supplies during Merkel’s chancellorship has been questioned as the government has licensed arms trades in regions with questionable human rights compliance. Advocacy groups such as the ECCHR, Amnesty International and the Center Against Arms Trade are working to develop strategic litigation complaints against various individual state and corporate actors, including a communication to the ICC involving individuals of the German arms manufacturers Rheinmetall AG and Airbus Defence.

Besides UN trade embargoes, International Law restricts arms trades in several ways. Key of which are the Arms Trade Treaty, International Humanitarian Law and the “secondary” law of State responsibility.

Arms Trade Treaty

All NATO allies apart from Turkey and the U.S. are members of the Arms Trade Treaty (ATT). Ukraine currently is neither a NATO ally nor a member of the ATT.

Article 2 (1) contains a list of conventional arms, this includes: battle tanks; armoured combat vehicles; large-calibre artillery systems; combat aircraft; attack helicopters; warships; missiles and missile launchers; and small arms and light weapons. Articles 3 and 4 relate to the munitions, parts and components of these arms.

The arms currently being supplied; the U.K’s missiles and missile launchers; Czechia’s artillery system and its munitions, and; Turkey’s combat aircraft drones will be regulated by the ATT. As would have been the German origin D-30 Howitzer, an artillery system.

Article 6 (3) of the Treaty states an absolute prohibition:

A State Party shall not authorize any transfer of conventional arms covered under Article 2 (1) or of items covered under Article 3 or Article 4, if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.

The key element here is the “knowledge” test.

Although the ATT does not define exactly what the “knowledge requirement” is, Liechtenstein,      Switzerland and the ICRC have indicated that “knowledge” in Article 6(3) should be interpreted objectively, in its ordinary meaning. This should include what a State Party can normally be expected to know, based on information in its possession or reasonably available to it.

Article 7, Export and Export Assessment, adds in a risk assessment criteria should Article 6 (3)’s “knowledge requirement” not be reached. The ICRC has described this as creating a “two-stage process”.

Article 7:

1. If the export is not prohibited under Article 6, each exporting State Party … shall … assess the potential that the conventional arms or items:

(a)  would contribute to or undermine peace and security;

(b)  could be used to:

(i)  commit or facilitate a serious violation of international humanitarian law;

(ii)  commit or facilitate a serious violation of international human rights law;

3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.

Article 6 (3)’s formulation “would be used in the commission of” is a high threshold when compared to Article 7 (b) (i)-(ii)’s “could be used to commit or facilitate”: This is likely because “used in the commission of” means the weapon is integral to the violation. Article 7 (b) (i)-(ii)’s “facilitate” implies the weapon may have played a secondary or supporting role in the violation. Article 7 therefore creates a low threshold. Article 7 (b) (i)-(ii) would likely capture a wider scope of possible scenarios that would trigger a violation compared with Article 6 (3).

Allies must ask themselves: would the weapon be used to commit war crimes, would it contribute to or undermine peace and security or could it be used to commit or facilitate war crimes?

Under Article 6 (3), allies have no indication that Ukraine would intend to use the weapons to commit war crimes in the commission of defending itself from possible renewed Russian attack.

Whilst the ostensibly defensive anti-tank and anti-air weaponry could be attempted to be used offensively, the prospect of causing a war crime such as indiscriminate shelling is remote. The anti-tank NLAW’s range is a mere 800 meters, anti-armour Javelin reaches around 5KM and anti-air Stinger reaching up to 8KM. All are designed for direct line of fire, and all depend on a precise target acquisition signature for their operation.

However, the greater 15KM range and rudimentary indirect (IDF) (up and down) trajectory of the D-30 Howitzers and Czechia’s 152mm artillery piece lend themselves to the possibility of indiscriminate shelling that Ukraine has been previously accused of. This, in part, may offer an explanation why Germany refused to permit Estonia’s transfer of the D-30 Howitzers to Ukraine.

Germany may have believed that there was an “overriding risk” that violations of Article 7 (b) (i)-(ii) could occur.

“Overriding risk” seems to afford states a margin of appreciation when deciding to authorize an arms transfer, however, indiscriminate shelling – a breach of international humanitarian law – should be factored into the risk assessment.

From a legal perspective, it is possible that Germany was either erring on the side of caution in refusing to permit the transfer, or they believed the risk was truly overriding. Czechia’s supposedly imminent artillery transfer would then come very close to violating the Art 7 (b) (i)-(ii) risk assessment.

International Humanitarian Law

According to Common Article 1 (CA1) of the Geneva Conventions and the ICRC commentary, states have the responsibility to respect and ensure respect for the Conventions “in all circumstances” by taking all reasonable measures to prevent violations. If arms are provided with the knowledge that they will be used to violate IHL, both their use and their supply constitute a violation of CA1.

CA1 sets up the negative obligation to abstain from supplying arms in situations where facts or knowledge point towards a violation of the Geneva Conventions. In other words, where supplying states could expect a violation of IHL, they shall not contribute to them by supplying arms to the country or group in question. As a positive obligation, CA1 requires states to do everything reasonable to prevent and end violations of IHL. If receiving states fail to implement measures for their IHL compliance, other states have to refrain from arms trading with them.

In the Ukraine-Russia conflict, Russian and separatist media have been vociferous in their allegations of Ukraine committing war crimes. However, not only Russia and the Separatists raised such allegations. Existing evidence has been sufficient to trigger preliminary examinations by the ICC, with former Prosecutor F. Bensouda giving green light for a full investigation in 2020. In her statements, she has made clear that war crimes have allegedly been committed “by the different parties to the conflict”. In its report on the preliminary examinations, the OTP concluded that from February 2014 onwards, there is a reasonable basis to believe that war crimes were committed. The report explicitly mentions alleged violations of Article 8(2)(b)(i)-(ii) or Article 8(2)(e)(i) Rome Statute, constituting intentional attacks directed against civilians and civilian objects.

Human Rights Watch has documented allegations of indiscriminate shelling in populated areas by the Ukrainian military. The OSCE regularly confirms artillery fire (shelling) as a tactic used by the Ukrainian military. Some reported incidents include attacks on heavily populated areas, for example the Mariupol shelling that killed 17 civilians. These reports are mainly in the early years of the conflict however, and it is difficult to precisely identify recent examples of the Ukrainian military indiscriminately shelling civilians.

Though Russia is clearly the aggressor, breaches of IHL by one conflicting party do not permit a breach by the other side of the conflict. As recently reminded by Kosovo Specialist Prosecutor Jack Smith “war crimes on one side do not justify war crimes on the other side.”

As considered above, there are enough reasons for states to consider the risk of impending war crimes linked to their arms supply. The allegations raised by the ICC, the OSCE, Russia, the Separatists and Human Rights Watch could live up to the required standard of “expectation”, triggering the supplying states’ negative obligation under CA1 to refrain from arms supplies to Ukraine.

Articles on State Responsibility

Compared to CA1, the Articles of State Responsibility (ARSIWA) set a higher threshold for liability and not every violation of CA1 amounts to a violation of the ARSIWA.

Article 16 ARSIWA prohibits aiding and assisting other states in any violation of International Law, if the state knew about the circumstances of the wrongful act.

Article 16 relies on the assessment of public statements and policies when establishing “knowledge” as the required standard of proof. According to the UN commentary, the supplying state is presumed to act in good faith and needs be aware of and intended “with a view to facilitating the commission of the wrongful act”. This is also the difference to CA1 where mere knowledge – without intent – is sufficient for a violation. It must be noted that the requirement “intent to facilitate” was set up by the UN commentary and not by Article 16 itself and it is still subject to ongoing debates whether intent is a requirement of Article 16.

The interpretation of the commentary requires two things: first, the knowledge that Ukraine plans to commit war crimes with the supplied arms and second, that the supplying state also intended to facilitate such crimes.

Opposing opinions suggest that Article 16 does not require intent of the supplying state – only the supplying states’ knowledge of the impending wrongful act needs to be proven.

However, regardless of alleged war crimes by Ukraine in the past, no implications towards the actual knowledge of future perpetration of war crimes can be made from earlier incidents or the current situation. It cannot be presumed that Ukraine currently plans to commit further war crimes. It is thus impossible to construct supplying states’ knowledge about such plans.

In the current situation, Both interpretations of Art. 16 require knowledge of the supplying state. As one fails to establish this requirement, Art. 16 remains inapplicable, regardless of the followed interpretation.

Conclusion

Russia has alleged that “Ukraine has been committing war crimes since 2013.” Rossiya 1 on 22 July 2021 reported that “Russia files a lawsuit with the European Court of Human Rights against Ukraine over the death of people during the 2014 events in Kyiv and Odessa, the war crimes of the Ukrainian army in Donbas”. Further allegations can be found on Twitter.

Although Russia is likely adopting a tactic of flooding the information space with allegations of Ukrainian indiscriminate shelling as a war crime, attempting to force the allies to rethink their arms trade obligations, Russian [inflated] claims are not without some substance. Human Rights Watch, the OSCE, the ICC’s investigation and possibly Germany’s refusal testifies to this.

The nexus between the supplying state’s knowledge that the defensive weapons will be used to commit war crimes is remote. Allies will not have the knowledge that these weapons will commit war crimes, and this is unlikely to change when subjected to a risk assessment.

Yet, a different outcome of a risk assessment is possible when it centers around clearly offensive weapons. Allies know that offensive weapons have allegedly been used by the Ukrainian military to commit indiscriminate shelling, a war crime. Consequently, if allies plan to supply Ukraine with offensive weapons (as Forbes and RUSI seem to suggest) a careful risk- and fact-assessment is necessary to prevent responsibility under the ATT, IHL and the ARSIWA.

The ATT’s Article 7 risk assessment highly likely influences Germany’s decision not to allow the transfer of the D-30 Howitzer. Germany still has not published its denial notice – a notification that gives a detailed explanation of its reasoning for refusing to allow the transfer.

Publication of the denial notice would give crucial insight into the German belief that there was an overriding risk that war crimes could be committed, putting Czechia or other allies in awkward positions with their proposed transfer of offensive weapons.

Furthermore, Turkey’s drones have allegedly been used to commit war crimes in theaters it has been deployed in; both Nagorno-Karabakh and Ethiopia conflict. Despite their legality being questioned by President Biden and the UN, the use of the drones are currently prima facie legal and it would be unreasonable to argue that Turkey breached the knowledge requirement of Article 6 ATT. Nevertheless, the risk assessment of Article 7 ATT should have forced Turkey to ensure that Ukrainian acquisition could not “be used to commit or facilitate” war crimes. The drones have been seen once in the Donbas battlespace, destroying an artillery piece – some believe this provoked Russia to its current aggression.

Arms supply is a heated topic. Ethical and moral considerations cannot be disregarded. The elaborated legal provisions leave no room for interpretation: allies have to refrain from aiding and assisting to unlawful situations such as Human Rights violations or violations of IHL. They bear a legal responsibility to assess public statements, recent events, former practices and other sources to make a rights-based analysis prior to licensing the arms supply at hand.