Ukraine War, November 16, 2022: International law as a guide to understanding and the missile explosions in Poland

When government leaders do not themselves have of good grasp of international law and how itvworks, or simply fail to ask for and follow the afvice ofbtheir own governments’ international lawyers,governments seem to stumble around, sometimes as if in the dark.

Leaders and pundits take highly-defined legal terms such as “armed attack” and given them their own meanings which are often wildly divergent from the meanings of the actual legal terms as used in a legal document such as a treaty.

Today we have the leaders of NATO countries stumbling about following the explosion of a missile inside Poland at a site very close to the Ukrainian border. The explosion killed two people.

The resulting parody of reality would be comical if itvwere not so deadly serious and full of potentially deadly consequences.

On Tuesday, a missile or missiles hit a town inside Poland, killing two people. Officials and pundits immediate though of the mutual defense oblihation under Article 5 of the NATO Treaty.

Considering the missile explosion inside Poland an “armed attack”: many 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 assistance of a member state which is a victim ofvan “armed attack” by measures involving the use of force or or other means as each state shall decide.


strong>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 individual or 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 and the twin requirements of necessity and proportionality, which are built-in requirements for the exercise of the right of self-defense.

Article 102 of tge U.N. Charter provides that the Charter’s provisions take precedence over any conflicting provisions in other treaties.

In fact, even if intentional, the explosion of a single missile unaccompanied by further military preparation or operations would probably not constitute an “armed attack” triggering the mutual defense obligation in 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.

If not an “armed attack, it would therefore not require or authorize NATO members to take action necessary to halt the attack and, arguably to prevent its recurrence in the future.

Contrary to what sime NATO leaders mat 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.

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 authorized under Article 51 of the U.N. Charter.

Such military action is permissible in order to bring to a halt Russia’s armed attack against Ukraine. Given the scale of the latter, NATO and other countries have great latitude of action against Russia under international law.

The main constraint has not been legal, but rather Putin’s nuclear threats and apprehension that Russia might actually deploy a nuclear device such as a tactical nuclear weapon.

The Trenchant Observer