The ‘Legality in Crisis’ of the Arms Transfers to Ukraine

Ukraine Army

With a pandemic caused by the unpredictable Covid-19 virus and the clear effects of climate change looming on the planet, nobody could imagine that we would have witnessed an invasion of Ukraine by Russia. The war in Ukraine is being extensively covered by the media, and different frameworks are being used to analyse the conflict. International law is among these frameworks, and it has been used to assess the legality of the transfers of arms sent to Ukraine by several countries, including the US, the EU, and the UK.

The analysis provided by international lawyers (myself included) is the evidence of how international law has never ceased to be a ‘discipline of crisis’, as written by professor Hilary Charlesworth in 2002 (now Judge at the International Court of Justice). Analysing the transfer of arms through the ‘legality in crisis’ paradigm inevitably reduces and limits our perspective and makes us miss or underemphasise important elements that are part of the bigger picture of the conflict.

The Legality of the Transfers of Arms

Is third states’ provision of weaponry to Ukraine legal? Yes, Ukraine is acting in self-defence, in line with article 51 of the United Nations (UN) Charter, against the unlawful use of force by Russia, which is undermining the territorial integrity of Ukraine, in violation of article 2.4 of the UN Charter. These articles of the international law on the use of force, however, are not the only ones framing the legality of those transfers.

Several states providing arms to Ukraine, for example, are bound by the Arms Trade Treaty (ATT), which prohibits the supplying of weaponry when these might be used for the commission of serious violations of international law, such as war crimes and crimes against humanity, and requires arms-exporting states to assess the risk of possible serious violations of international humanitarian law and human rights law involving the transferring arms. Furthermore, supplying states are also encouraged to re-assess the risk in case of new evidence of possible risks (articles 6 and 7 ATT). This means that it is not enough for third states to just assess the legality of Ukraine’s use of force; they must constantly monitor how these weapons are used and by whom.

Expanding the Vision

Crisis legality and focusing on directly applicable norms shall never limit our perspective. On the one hand, Ukrainians are fighting against a significantly bigger army and need military support, and article 41(1) of the International Law Commission’s Articles on State Responsibility requires states to ‘cooperate to bring an end’ to serious breaches of peremptory norms of international law, such as the current Russian aggression. However, this does not mean that the delivery of arms is the sole and only form of support to Ukrainians. The third states supporting Ukraine shall not ignore that this is not a peaceful option and can have significant long-term effects.

Peace Shall Always Be Preferred

Peace is not only a goal to reach but also an imperative in the conduct of international relations. The UN Charter is that the promotion and maintenance of international peace and security are the ultimate goals of the post-1945 international legal system. As reminded by the UN General Assembly, article 2.3 requires all UN member states to settle their disputes ‘by peaceful means in such a manner that international peace and security, and justice, are not endangered’. In this sense, the Charter cannot be used to justify violence in international relations extensively. Strategies involving weaponry can only be limited and exceptional and cannot be the whole solution of the conflict.

Post-Conflict Disarmament

The crisis also shall not overshadow the effects of the sending of anti-tank and anti-aircraft missiles, the weapons of choice that are being transferred, in the longer term. In fact, the transferring of arms is like pollution: once released polluting emissions in the atmosphere or in the water, it is never clear where they end up and what harm they will cause. Something similar happens with arms.

Once a state provides weaponry to another, especially in times of crisis, the heath of the moment can overshadow the risk of losing those weapons. In the 80s, for example, the US supplied Afghani fighters with Stinger missiles (which are also being provided now to Ukraine) but then struggled to recover all of them: it appears that some Stingers ended up in the hands of criminal organisations, other insurgents or other states, including Sri Lanka and North Korea.

States releasing weaponry in the international community should always care about where those arms will eventually end up. Unfortunately, we did not hear similar considerations by the leaders announcing the supplying of weaponry to Ukraine.

No less important is also the consideration of the demilitarisation of Ukraine and its society. War always leaves a significant number of explosive remnants of war, including unexploded bombs, ammunition, and landmines, which causes serious harm to the civilian population, even many years after the end of the conflict.

Similarly, third states’ supplying of small arms and light weapons, such as rifles and machineguns, combined with the distribution of these weapons to Ukraine’s reservists and the civilian population by the very Ukrainian governments, will leave a post-conflict Ukraine filled with these weapons and the risk that those arms could be used for criminal activities or sold for cash in the black market.

Security beyond Arms

‘Crisis legality’ shall neither make us forget that the concept of ‘security’ mentioned in the UN Charter goes beyond military security. As reminded us by the current pandemic of Covid-19, security challenges can concern human health (see, for example, Security Council’s Resolution 2526). In this sense, it is very concerning to hear states such as Germany announcing the increase of their budget devoted to the acquisition of armaments or learning that the funds used by the European Union for the transferring of arms to Ukraine come from the European Peace Facility.

In a moment in which only 13% of people in low-income countries have received at least one dose of the vaccine against Covid-19, and climate change is significantly impacting every part of the globe, we cannot afford that billions are diverted to the arms race triggered by the Russian invasion. In fact, the very article 26 of the UN Charter establishes that ‘world’s human and economic resources’ shall not be diverted for armaments.

With Russian tanks advancing into Ukraine and the Russian nuclear arsenal on ‘high alert’, these reflections of mine might appear naïve and useless. Nevertheless, I wanted to remind myself and the readers of this blog that the ‘legality in crisis’ shall not restrict our vision. The world is complex, but it has a future beyond this and all the other wars on the planet. We shall not accept that war is inevitable, and peace is only a nice dream.

*Part of these observations on peace and security beyond arms have been inspired by the lectures delivered by Professor Gina Heathcote (SOAS Law) and my conversations with her.

Dr Riccardo Labianco is a Senior Teaching Fellow at the SOAS School of Law. 

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