03 Oct The Saga of the Polish MiG-29: The Laws on Neutrality and the Law of Air Warfare
[Mateusz Piątkowski is an Assistant Professor at the University of Łódź, Poland (Faculty of Law and Administration, International Law Department), Attorney-at-law, and Member of the Polish Society of the Military Law and the Law of War.]
On February 27, 2022, the EU foreign policy chief Joseph Borrel announced that the European Council decided to offer Ukraine a package of lethal weapons of significant value, including fighter jets. However, the Western-type models would not be a meaningful military solution to the Ukrainian Air Forces, as the Ukrainian pilots have no experience flying them (but this might change with course of the conflict). Still, three NATO countries do have machines in their inventory that would be a significant contribution to bolster the capacities of the Ukrainian Air Forces: namely the MiG-29. Just before the collapse of the Iron Curtain, former Warsaw Pact members received a batch of this multi-role aircraft in the late 1980s. Ukraine is particularly familiar with this aircraft, with around thirty of these fighters already in use, including the mythical ‘Ghost of Kyiv”, scoring multiple kills from it.
A substantial part of NATO’s MiG-29 fleet is operated by the Polish Air Forces. Poland acquired the Soviet-era fighters from various sources: direct export, a 1995 exchange with the Czech Republic and a donation from Germany in 2002. The Polish MiG-29s were updated to NATO standards, some in cooperation with Israeli IAI manufacture. Their service life is coming to an end, as it has been presumed that all of these aircrafts will be totally replaced between 2024 and 2026 by the F-35 Lighting II, purchased by the Polish government in 2020. There is therefore a coincidence of favorable circumstances – the Polish Air Forces have an aging (but still airworthy) fleet of fighters which are already familiar to Ukrainian aviators.
Since the February 27 announcement, there have been significant developments in the case. On March 1, 2022, the Polish head of state declared “[w]e will not send our planes, it will mean that the NATO is involved in military intervention. (…) NATO is not a party to the armed conflict”. On March 2, 2022 the US Secretary of State Anthony Blinken said in a TV interview that NATO states have the “green light” to start the delivery of the warplanes to Ukraine. On March 3, 2022, the spokesman of the Polish government denied that warplanes were going to operate in combat mode from Polish territory. On March 8, 2022, the Polish Ministry of Foreign Affairs issued a statement declaring that they “are ready to deploy – immediately and free of charge – all their MiG-29 jets to the Ramstein Air Base and place them at the disposal of the Government of the United States of America”. There was a rapid response from the Pentagon Press Secretary, who indicated that the official viewpoint of the Polish government was not “a tenable one”. The Polish authorities commented that NATO must share collective responsibility for the decision to supply Ukraine with fighter jets.
The decision to supply a nation at war with combat military jets is a significant step. The role of military aviation in modern conflict is paramount. In the circumstances of the conflict, given that the Russian Air Forces failed to achieve air superiority, the shipment of twenty to thirty airworthy fighters, ready for combat, could effectively bolster the chances of the Ukrainian Air Force in combat. How is this activity perceived by the laws of neutrality with particular reference towards the law of air warfare?
The law of neutrality is the “legal relationship between nations engaged in an armed conflict (belligerents) and nations not taking part in such hostilities (neutrals)”. In fact, the concept of neutrality is one of the oldest frameworks of international law. It has been significantly developed in regard to naval warfare to the extent that it became a point of paramount importance in multiple naval warfare treaties, for example the Paris Declaration of 1856 and the 1907 No. XIII Hague Convention concerning the Rights and Duties of Neutral Powers in Naval War. A similar regulation was adopted in the context of land warfare. All the above mentioned documents strongly highlight the well-known rule of neutrality: any direct or indirect supply of any kind of war material (warships included) by neutrals to the belligerent is forbidden. However, private shipment of weapons is not prohibited.
What about air warfare? It should be emphasized that the law of air warfare is only partially codified by Additional Protocol I to the Geneva Conventions of 1977 (Article 49(3)). The codification involves the law of air bombardment on objects located on the ground and refers to the particular situation of airmen in distress. Everything beyond this scope is shaped through customary international law and by the general principles of the IHL common to all dimensions of warfare.
An attempt was made to comprehensively regulate the laws of war through the Hague Rules of Air Warfare of 1923 (HRAW). These rules have never been ratified, although they generally represent a reflection of state practice, as it was forged during air battles between 1914 and 1918. The document is mostly known for its chapter on air bombardment, but the fact that the draft was much larger in scope and included a section on neutrality in air warfare has been forgotten. Article 44 of the HRAW stipulates that “[i]t is forbidden for a neutral government to supply a belligerent power, whether directly or indirectly, with aircraft, component parts thereof, or material or ammunition for aircraft”. The provisions are straightforward and follow the general prohibition of supplying belligerents with military equipment of any kind (naval, land, or air) by the neutral state.
Some provisions of the HRAW have, for the time being, confirmed the value of the customary law (for example, the definition of a military aircraft). The rest remains speculative, including proposals regarding the shipment of military aircraft by neutrals to belligerents. It is true that the drafters followed the main trend in international law in this regard, although no clear state practice was recorded during World War I.
The Harvard Manual on the International Law Applicable in the Air and Missile Warfare (Harvard Manual) in 2009 directly refers to the HRAW principles (rules 165, 173). The Harvard Manual is not a source of international law – it presents a reflection of the customary law. However, have states always followed the HRAW proposals? Here are some historical examples:
- In 1939, Polish military aviation was aspiring to acquire new fighter aircraft in order to replace its obsolete fighter fleet. Fourteen Hawker Hurricanes were purchased from Great Britain in June 1939. At least one of the Hurricanes made it to the Gdynia just a few days before the outbreak of war, but the captain of the ship was instructed to remain in neutral waters. However, at the end of August 1939, the British government gave the ‘green light’ to a larger shipment inbound to Poland through the Romanian port of Constanta (it should be noted that Great Britain and France entered World War II on the third day).
- Ironically, some of the Hurricanes designated to join the Polish Air Force were sold to the Finnish Air Force in February 1940, amidst the Winter War. In addition, Great Britain decided to augment Finland with Bristol Blenheims and Gladiators. On January 23, 1940, the British government accepted the sale of twelve Hawker Hurricanes; however, officially the planes were delivered by the Hawker company, not the government itself. On the other, French government decided to directly donate the MS 406 fighters for the Finish aviation.
- Between 1939 and 1941, the United States adopted the Cash and Carry and Lend-Lease Act, allowing the belligerent Allied nations to purchase equipment in the United States and transport it through its own means (see the famous picture of the bombers being transferred through the land border between the United States and Canada). As a neutral state, the United States reinforced the Royal Air Force with the delivery of B-25 Mitchell bombers.
- During the Vietnam War, the North Vietnam air forces received multiple military aircraft from the USSR (including MiG-21 fighters).
- During the Yom Kippur War, due to the extensive losses of Israeli military aviation, the United States imposed the rapid shipment of the F-4 Phantom planes from the carriers (Operation Nickel Grass). The urgency was so great that the US pilots flew aircrafts to the Lod Air Base in Israel, where the machines were immediately occupied by the Israeli airmen.
- Spare parts for the American F-14 Tomcat were sold to Iran in the 1980s despite the embargo (Iran-Contras affair) and ongoing Iran-Iraq war.
- It is believed that the retirement of the Slovakian MiG-29 might be related with the potential transfer of the aircrafts to the Ukrainian Air Forces.
As observed, state practice in this regard is scattered and inconclusive. Especially during the second half of the 20th century, states prioritized political interest over the restrictions emanating from the laws of neutrality.
Furthermore, despite the fact that the shipment of combat aircraft is a serious contribution to a nation at war, in my opinion it was not considered to be a “direct hostilities act”, which reclassifies the neutral state status to belligerent. In fact, the Russian Defense Ministry draws the line between being “non-neutral” and “hostile”, stating that the latter would be considered if an external state allows the Ukrainian military aviation shelter in neutral airbases.
The laws of neutrality distinguish between the public and private export of arms, the latter not prohibited. In the law of air warfare, article 46 of the HRAW stipulates there are only two preventive obligations in the context of private activities: to prevent the departure of the military aircraft in full combat mode (armed and tanked) and to stop cross-border flights between the neutral state and a belligerent state if the aircraft is piloted by members of the belligerent armed forces. Yet, as observed by the Harvard Manual, practice in this regard is inconclusive.
In other areas of laws of neutrality and air warfare, we have evidence of how “fluid” the law might become. On February 24, 2022, a Ukrainian Air Force Su-27 fighter flew into Romanian airspace and was intercepted by a Romanian F-16, forcing the intruder to land at the Bacau Air Base in Romania. The reasons behind the decision of the Ukrainian pilot to enter the neutral airspace are unknown; it might be speculated that the pilot was forced to leave the territory of Ukraine either by destruction of his own airbase or was trying to avoid combat with the enemy. Nevertheless, on March 1, 2022, the Romanian authorities agreed to transfer the Su-27 fighter back to the edge of the Romanian airspace, ultimately returning it to the Ukrainian Air Force. The aircraft departed without ammunition (Su-27 was fully armed during interception). It is also unknown who was piloting the aircraft. Again, from the viewpoint of the laws of neutrality and air warfare, the belligerent military aircraft shall be detain for the time of hostilities and, in fact, there is some practice in this regard:
- After the USSR’s aggression toward Poland in 1939, the Polish Air Force assets were evacuated to Romania and Hungary, where the aircrafts were interned and transferred to the military.
- Multiple aircrafts of belligerents were interned by Sweden, Spain and Switzerland during World War II.
- During the First Persian Gulf War, a substantial part of the Iraqi Air Forces flying equipment escaped to Iran, where it was interned until the request of the Iraqi government submitted years after the end of hostilities. Some of the former Iraq`s Mirage F1 are still operated by the Iran Air Force.
A few conclusion can be put forth:
1. The laws of neutrality and air warfare in regard to shipment of military aircrafts by a neutral state to a belligerent state are too ambiguous and politically impacted to be a part of customary international law, especially when the beneficiary of the help is a victim of aggression. Actually, the practice of the states during Soviet aggression against Finland and the ongoing Russian aggression against Ukraine might indicate a customary rule emerging stating that it is permissible to deliver the combat aircraft to the victim of aggression.
2. International law does not prohibit private export of aircrafts through the companies/individuals not related to the state.
3. The transfer of combat aircraft, especially in a semi-official way, does not necessarily result in considering the exporting state as a belligerent.
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