REVISED AND EXPANDED: International law as a guide to understanding--and the missile explosions in Poland
Revised and expanded, November 17, 2022 (10:00 p.m.)
When government leaders do not themselves have a good grasp of international law and how it works, or simply fail to ask for and follow the advice of their own government’s international lawyers, governments may stumble around, sometimes as if in the dark.
Leaders and pundits may take highly-defined legal terms such as “armed attack” and give them their own meanings, which are often wildly divergent from the meanings of the actual legal terms as used in legal documents such as treaties.
Today we have the leaders of NATO countries stumbling about following the explosion of a missile inside Poland at a site six kilometers from the Ukrainian border. The explosion killed two people.
The facts:
On Tuesday, a missile or missiles hit a town inside Poland, killing two people.
Reactions:
Officials and pundits immediately thought of the mutual defense oblihation under Article 5 of the NATO Treaty.
Considering the missile explosion inside Poland an “armed attack”, many officials and others apparently feared that the explosion would drag NATO countries into the war in Ukraine, a development NATO members had been assiduously avoiding since Russia invaded Ukraine on February 24, 2022.
Actually, Article 5 of the NATO Treaty merely obligates member states to come to the assistance of a member state which is a victim of an “armed attack” by measures involving the use of force or or other means as each state shall decide.
See,
Article 5
The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
These actions are limited to the lawful exercise of the right to collective self-defense “to secure the security of the North Atlantic area”.
While this language might lend itself to an expansive interpretation, it is clear that it is limited to action taken in legitimate self-defense satisfying the twin requirements of necessity and proportionality. These are built-in requirements for the exercise of the right of self-defense.
Article 102 of the U.N. Charter provides that the Charter’s provisions take precedence over any conflicting provisions in other treaties. Thus, it is the language of Article 51 which prevails over the vague language in Article 5 of the NATO Treaty.
In fact, the explosion of a single missile on Polish territory even if intentional, if
unaccompanied by further military preparations or operations, would gernerally not constitute an “armed attack” within the meaning of Article 5.
Moreover, even if it were deemed an “armed attack” for purposes of Article 5 of the NATO treaty, it would only authorize collective self-defense limited by the twin requirements of necessity and proportionality. Moreover, since any “attack” which might have occurred is over, and there are apparently no grounds to believe Russia is preparing further missile attacks against Poland, very little if any military action would be required of NATO countries.
Contrary to what some NATO leaders may have thought, even if the explosion were deemed to constitue an “armed attack”, it would not operate under Article 5 to require other NATO members to join Poland in broad military actions against Russia. Any response in collective self-defense would have to be necessary and proportionate.
The great irony here is that all NATO countries, and indeed all other countries, are already authorized to take military action against Russia in exercise of the inherent right of collective self-defense of Ukraine, in accordance with Article 51 of the U.N. Charter.
Such military action would be permissible under international law in order to bring to a halt Russia’s armed attack against Ukraine. Given the scale of the latter and its ongoing nature, NATO and other countries have great latitude in taking military action against Russia under international law.
The main constraint has not been legal, but rather Putin’s nuclear threats and the apprehension by President Joe Biden and others that Russia might actually deploy a nuclear device such as a tactical nuclear weapon in Ukraine, which could lead to escalation and a nuclear conflict
The facts regarding who was responsible for the missile xplosion in Poland are disputed. Russia says it did not launch the missile, but what Russia says is essentially irrelevant as Russia lies all the time.
NATO and Poland now say that their preliminary investigation indicates that the missile was a Ukrainian air defense missile. President Volodymyr Zelenski at first asserted that the missile that hit Poland was a Russian missile, and definitely not one launched by Ukraine.
Today, after NATO made its statement, Zelensky has been more circumspect, allowing that more time will be required for an investigation to provide definitive answers. He insists, nonetheless, that Ukrainians participate in the investigation, and that they be given immediate access to the site of the explosion in Poland.
Several factors are at play here which the reader should take into account.
First, NATO countries desperately want to avoid getting dragged into a direct military conflict with Russia. Give their misunderstanding of international law, they may believe—erroneously—that if the missile was launched by Russia, Article 5 of the NATO Treaty would require them to become parties to a war against Russia.
Such an understanding would be incorrect because a single missile landing in Poland would not in and of itself constitute an “armed attack” within in the meaning of the text im Article 5 of the NATO Treaty.
The point is simply that, proceeding on such a misunderstanding of the situation, the U.S. and ither leading countries within NATO might feel a strong motive for finding that Russia did not launch the missile that hit Poland. Moreover, we should always bear in mind the old maxim that in war the first casualty is truth.
Second, Zelensky was at first adamant in asserting the missile was not launched by Ukraine. He presumably had access to highly pertinent intelligence information from Ukrainian officials.
It is entirely understandable that Zelensky would soften his own statement in view of the strong position taken by NATO and NATO countries, upon which Ukraine is utterly dependent for weapons and munitions to continue its military counter-offensives against the Russians.
Third, Zelensky pointed out that the huge crater caused by the missile strike in Poland was inconsistent with the hypothesis that it was an air defense missile.
Finally, the speed of NATO’s preliminary investigation and the release of its preliminary findings is a bit suspect, particularly when you take into account the fact that they apparently didn’t talk to the Ukrainians.
Regardless of who launched the missile that hit Poland, it is striking how all of NATO’s energies seemed to be directed toward finding that Russia did not launch the missile.
There was essentially no response from NATO to Putin’s further escalation of the war on Tuesday by launching perhaps the largest wave of missile attacks across all of Ukraine since the war began. As of Wednesday, some 10 million Uktainians were without electricity.
Finally, we should bear in mind thar Putin’s modus eperandi is to push the limits, to sow divisions between thecallies, to whittle away at his opponent’s ability to use force, to use subterfuge to trick his opponents. Putin uses ambiguity and lies to take actions against the West that distract and confuse his opponents.
While it remains uncertain whether Russia fired the missile that landed in Poland on Tuesday, it is clear that this is the kind of action Putin might take to test and undermine the NATO mutual defense obligation contained in Article 5 of the NATO Treaty.
In any event, whether Putin was behind it or not, the missile explosion in Poland demonstrated how reluctant NATO member countries are to engage in mutual defense against attacks from Russia. The incident also served as a major distraction from the commission of crimes against humanity on a massive scale through Russia’s missile and drone attacks against civilians and civilian infrastructure in Ukraine.
NATO, in respone to these attacks, should have called for the delivery of long-range artillery rockets (ATACMS) for use by Ukraine’s HIMARS artillery units, the transfer of fighter jets to Ukraine, and the delivery by Germany if the tanks and armored personnel carriers that are ready but which Chanvellor Olaf Scholz has been refusing to deliver to Ukraine.
NATO governments should also be discussing whether, in a war tomdefend rge U.N. Charter, international law, and indeed our civilization, it makes sense to maintains restrictions on weapons’ use that prohibit their use to attack targets in Russia, even bases from which missiles are being launched to attack civilians and the civilian infrastructure in Ukraine.
It would make much more sense to simply insist that the weapons not be used against Russian targets except in accordance with the international law of self-defense.
If NATO and countries do not begin to stand up to Putin even to this limited extent, Russia will destroy the entire civilian infrastructure of Ukraine, causing a humanitarian crisis of unimaginable consequences.