Military assistance to Ukraine in the light of the law of neutrality

By Amela Skiljan

This article was originally published in German “Die militärischen Unterstützungsleistungen an die Ukraine im Lichte des Neutralitätsrechts.” Vorgänge, 239/240: Keine Chance für den Frieden?, 07/2023, 57-68. (Link).

Shortly after the Russian army invaded Ukraine, a discussion began in Germany (and other Western countries) about civilian and military support for Ukraine. In the meantime (as of April 14, 2023), the German government has supplied or promised to supply Ukraine with weapons and military equipment worth 4.2 billion EUR. There is no question that these deliveries from Germany are influencing the course of the war. However, the extent to which Germany is violating the rules of international law or even becoming a party to the conflict is controversial. The following article aims to help clarify these questions.

The Russian invasion of Ukraine triggered lively discussions not only among policymakers or within the population but also among international law experts. One particular area of international law was in the spotlight: the law of neutrality. Among other things, the question arose as to how the activities of those states that support Ukraine or Russia should be assessed. Does the law of neutrality influence the war in Ukraine, or does this war in turn influence the law of neutrality, and if so, how?

Application of the Law of Neutrality

First of all, the questions of what the law of neutrality is and when it is applicable have to be clarified. The law of neutrality is customary law, which aims to contain international armed conflicts and prevent their escalation. It regulates the relationship between the parties to a conflict and neutral states not involved in the conflict. The territory of neutral states is inviolable to the belligerent states (Article 1 V HA 1907). Neutral states also have the right to continue their diplomatic and economic relations peacefully with all parties to the conflict. In return, neutral states are subject to the obligation of impartiality, abstention, prevention, and internment. Neutral states are therefore prohibited from interfering in any way and/or influencing the outcome of the conflict. The rights of neutrals are the obligations of belligerents and vice versa. 

The first challenge to the law of neutrality was the 1928 Briand-Kellogg Pact as it was outlawing war. Probably the greatest challenge came with the prohibition on the use of force enshrined in Article 2(4) of the UN Charter and the common security system created by the UN. The latter two even led some authors to proclaim the “death” of the law of neutrality. However, far more voices argue for the “survival” of the law of neutrality (Bothe 2021:604-06; Politakis 1992: 440-41; Nasu 2020:2; Sandoz 2018:91; Boothby, Heintschel von Heinegg 2018:373), as the UN system has often proven to be inefficient and states have had to “fall back” on the norms of the law of neutrality even after the UN was founded. Furthermore, a large number of military manuals refer directly to the law of neutrality in their instructions and thus interrelate the rights and obligations of neutrals and parties to a conflict. Military manuals are perceived by some authors as an expression of states´ opinio juris. In addition, the applicability of the law of neutrality has been confirmed in national (BVerwG 2 WD 2005; High Court of Ireland 2003) and international (ICJ 1996:§89) case law. Last but not least, the UN system itself accepts permanently neutral states as member states.

The International Committee of the Red Cross (ICRC) emphasizes in its commentary on the Second Geneva Convention, that the applicability of the law of neutrality is triggered by the outbreak of an international armed conflict (ICRC 2017:§ 954).  While some authors argue that an international armed conflict needs to be of a certain duration and intensity, there seems to be a consensus that the law of neutrality does not apply to non-international armed conflicts. The scope of application is therefore narrower than that of international humanitarian law. “These are separate yet complementary legal frameworks, in that the law of neutrality, at least in part, has the same object and purpose as international humanitarian law of mitigating and containing the adverse effects of an international armed conflict” (ICRC 2017:§ 954).

The armed conflict in Ukraine is an international armed conflict in the classic sense, in which the law of neutrality is undoubtedly applicable. This raises a central question: How should the military support provided by some Western states in favor of Ukraine be assessed under the law of neutrality?

Arms supplies

Article 6 of VIII Hague Convention prohibits “the supply, in any manner, directly or indirectly […] of war-ships, ammunition, or war material of any kind whatever” from a neutral state to a belligerent state. This is to be understood as an expression of a customary norm. Although Article 7 of VIII Hague Convention states that a neutral state is not obliged to prevent the private export of arms, there is consensus among legal scholars (Oeter 1992:353; Roeser 1988:228-29; Bothe 2021:615; Williams 1980:33; Furger 2013:287) that the supply of arms by private individuals (or corporations) who require a state export license is attributable to the state and therefore falls under the prohibition of Article 6.[1] Accordingly, arms deliveries (including deliveries to both parties to the conflict) are always a violation of the law of neutrality. The law of neutrality does not provide for any exceptions. It should be noted that for an assessment under international law, it is irrelevant if the weapons in question are so-called “defensive weapons”. In fact, international law does not distinguish between offensive and defensive weapons. Thus, arms deliveries by Germany as well as some other Western states are clear violations of the law of neutrality.

Humanitarian aid is a permissible act of support and is not considered a violation of the law of neutrality, even if it only applies to one of the parties to the conflict. However, this will not be examined further below as it is not of a military nature.

Training of Ukrainian Soldiers

The training of Ukrainian soldiers constitutes an impermissible act of support, regardless of the place of training. Furthermore, a neutral state is obliged to take active measures to prevent parties to the conflict from using its territory during the armed conflict, whether for the transportation of troops and supplies or as a military base. As mentioned previously, a neutral state is, inter alia, subject to the so-called internment obligation. Troops of parties to a conflict that are on neutral territory after the start of the conflict must be interned (Article 11(1) V HA 1907). In its ruling of 2005, the German Federal Administrative Court stated that the obligation to intern troops arises from the meaning and purpose of the law of neutrality, “as this is the only way to prevent hostilities from being supported from neutral territory and to prevent an escalation of armed conflicts involving the neutral state” (BVerwG 2 WD 2005:84-5).

By allowing a party to a conflict to use its territory, a neutral state temporarily and for a limited purpose abdicates its right to expect the opposing belligerent to respect its territorial integrity (Davis 2020:504). If a neutral state is unwilling or unable to prevent the armed forces of a belligerent from using its territory in a way that directly threatens the opposing belligerent, the law of neutrality recognizes the right of the belligerent that is suffering or about to suffer to use force against the belligerent that is violating the neutrality of a neutral State in order to end this violation. According to Davis, if a belligerent exercises this right, its use of force against the opposing belligerent within the sovereign territory of the neutral state does not constitute an armed attack against the neutral state, and the neutral state, therefore, has no right of self-defense under Article 51 of the UN Charter (Davis 2020:504-05). These norms are confirmed and explained in some military manuals (National Defense Canada 2003:§1304.3; New Zealand Defence Force 2009:§16.3.4.).

The HPCR Manual on International Law Applicable to Air and Missile Warfare clarifies in this regard: “If the use of the neutral territory or airspace by a Belligerent Party constitutes a serious violation, the opposing Belligerent Party may, in the absence of any feasible and timely alternative, use such force as is necessary to terminate the violation of neutrality” (HPCR 2009:§168(b); HPCR 2013:388-89; Ministerio de defensa 2021:355). The San Remo Manual sets a higher threshold for the lawful use of force by a belligerent against opposing armed forces on the territory of a neutral state. Thus, if the belligerent´s violation of neutrality “constitutes a serious and immediate threat to the security of the opposing belligerent and the violation is not terminated, then that belligerent may, in the absence of any feasible and timely alternative, use such force as is strictly necessary to respond to the threat posed by the violation.” (San Remo Manual 1994:§22). The views expressed in the manuals are not shared by all authors (Lorenz 2021).

Whether, and if so to what extent, the soldiers being trained in Germany pose a threat to Russia would need to be scrutinized in detail. However, it should be noted that the training of Ukrainian soldiers and their presence on German soil are clearly contrary to the law of neutrality.


Although the law of neutrality has not been abolished by the common security system, the UN Charter has a certain influence on its applicability. The obligations of neutral states have thus not been eliminated per se by the UN Charter, but they are modified under certain conditions and to a certain extent. The decisive factor is the action of the UN Security Council under Chapter VII of the UN Charter (Bothe 2021:606; Heintschel von Heinegg 2007:556-57; Heintschel von Heinegg 2006:282; San Remo Manual 1994:§7-8; New Zealand Defense Force 2019:§16.2.2.). Should the UN Security Council, in accordance with Article 39 UN Charter determine a “threat to the peace, breach of the peace, or act of aggression” and adopt binding measures accordingly, such measures are binding for all UN member states. States cannot invoke their neutrality obligations to refuse to implement these measures. Exceptions to this are permanently neutral states that do not have to participate in military operations.[2] The obligations of neutral states are therefore modified in accordance with and to the extent defined in a binding decision of the UN Security Council under Chapter VII of the UN Charter. This is the only exception where the UN Charter influences the right of neutrality.

As long as the UN Security Council does not adopt a decision under Chapter VII UN Charter there is neither an obligation to discriminate against the actual or alleged aggressor nor an obligation to provide assistance to the victim of the aggression (Roeser 1988:222). In this case, states are free to decide whether they will participate in the conflict (in accordance with international law, only on the side of the victim!) or remain neutral.

Voluntary participation in a conflict on the side of the victim of aggression falls under collective self-defense according to Article 51 of the UN Charter. This is neither excluded nor prohibited by the law of neutrality. It is “normally” carried out by the neutral state joining the hostilities against the unlawful aggressor (Dinstein 2012:795), losing its neutral status, and becoming a party to the conflict (Bothe 2021:612).

If the conclusion a maiore ad minus is permissible, countermeasures that remain below the threshold of the use of force would also be justified by collective self-defense. Thus, the support that is contrary to the law of neutrality would be justified by the right of self-defense. However, neutral duties and the right of collective self-defense compete against each other in this situation. This raises a number of questions. Some readers are probably surprised by the frequent use of the subjunctive and the uncertainty associated with this constellation of norms. The reason for this is relatively simple. The legal literature has only dealt with it very little, as this case has not yet happened in state practice – until now.

Heintschel von Heinegg wrote about this “problem” in the form of “theoretical considerations” in a 2007 publication as follows:

„It is nevertheless doubtful whether the right to get involved in an armed conflict by reference to the right of collective self-defense justifies the conclusion that, a majore ad minus, non-participating States are also free to openly discriminate against a party to an international armed conflict. Theoretically, the Charter does not exclude a position of “non-belligerency” if the “benevolent” neutral expressly justifies its behavior by reference to Article 51. It would have to demonstrate that it considers the assisted State the victim of an illegal attack and that it was willing to support that State by means “short of war”. However, a “non-belligerent’s” position would be similar to that of a State that has formally declared war against one of the parties without actively joining in the armed struggle. The difference between a “benevolent” neutral and the parties to a conflict would lie only in the absence of the use of armed force. If certain neutral duties do not apply to a “non-belligerent” then the same must hold true with regard to an alleged aggressor. The situation would thus not be governed by any legal rule at all. The alleged aggressor would not be obliged to accept being discriminated against. Moreover, an aggressor State’s UN membership does not imply renunciation of the rules of neutrality where the collective security system is not functioning. If States adopt a position of “differential”/”benevolent” neutrality, their “right” under Article 51 competes with that of the discriminated belligerent to claim observance of neutral duties. If the Security Council is unable to determine the aggressor (at least ex post) there would be no rules to serve as a legal yardstick” (Heintschel von Heinegg 2007:552-53).

The core question that arises from this is linked, on the one hand, to the behavior or the expectations and, if applicable, reactions of the belligerent adversely affected by the violations of neutrality and, on the other hand, to the expectations of the state violating its neutral duties. The former still expects the fulfillment of the neutral obligations, and the latter “legitimately” violates its neutral duties, whereby it has discharged them itself. Whether and, if so, to what extent the rights and obligations of the aggrieved belligerent change as a result of this situation remains an open question. Overall, there would be enormous legal uncertainty in this situation (without calling into question the applicability of the prohibition on the use of force).

In the current debate, however, the same author advocates for a status of so-called “qualified neutrality” or a “non-belligerent status” of Germany (Heintschel von Heinegg 2022), without, unfortunately, answering any of the above posed questions. The reason for this change is explained as follows: Russia itself prevented a UN Security Council resolution with its veto; with or without a Security Council resolution, it is a case of aggression; the overwhelming majority of the international community condemns Russia’s actions and the states that do not within this group, are to be neglected (Heintschel von Heinegg 2022). As much as one can understand the moral reasons behind this argumentation, they do not override the law of neutrality.

Non-belligerency as a legal status

The status of non-belligerence, beyond the right of self-defense (Article 51 of the UN Charter), has often been the subject of debate under international law; occasionally, states have also invoked it in practice. States that describe themselves as “non-belligerents” want to have the rights of neutral states without adhering to the associated obligations.

If such an intermediate status had emerged as a legal status, it would have to a) be included in international norms, b) be endowed with conclusive rights and obligations for the states involved and c) be confirmed by consistent state practice. None of this is evident in this specific case.

Although the Third Geneva Convention mentions the term “non-belligerency”, this does not mean the introduction of a new legal concept or a new status under international law (Antōnopoulos 2022:16). In its Commentary on the Third Convention, the ICRC states that this term is “substantively identical” to “neutral” (ICRC 2020:§1084). The Additional Protocols to the Geneva Conventions do not mention this term, but Article 2(c) of the First Additional Protocol refers to “other State not a party to the conflict”. Ambos attempts to derive an intermediate status from this designation (Ambos 2022), but this norm defines Protecting Powers as “neutral or other State not a party to the conflict”. The commentary to the First Additional Protocol states: “Undoubtedly it would have sufficed to use the expression “not engaged in the conflict” or “not Party to the conflict” for the purposes of this sub-paragraph and other articles of the Protocol containing the same wording” (Sandoz et al. 1987:§135). Bothe (2021:604) points out that this formulation is applicable to any party not party to a conflict, and thus also includes conflicts in which the law of neutrality does not apply (for example, non-international armed conflicts). The wording of this norm does not claim to establish a new “non-belligerency status” (Upcher 2020:28), but rather to go beyond the limits of the law of neutrality.

If an intermediate status had emerged separately from the Geneva Conventions, the Additional Protocols, and the ICRC commentaries, the rights and obligations of the “non-belligerent parties” would have to be evident from other sources. Thus, for example, there should be norms that define the rights and obligations of the non-belligerent states and the parties to the conflict. In the context of international humanitarian law, one would have to come across this term, for example in the question of how to deal with detained or captured nationals of a “non-belligerent party”. Instruments of soft law are also silent with regard to a supposed intermediate status. The majority of states do not address such an intermediate status in their national military manuals (ZDv 15/2 2013; Ministerio de Defensa 2010; Danish Ministry of Defense 2016:62) or explicitly reject it (Ministère de la défense 2012:66).

The assertion that this intermediate status has emerged from state practice must be rejected. In order for a customary norm to emerge, the corresponding opinio juris (Article 38 (b) of the ICJ Statute) is required in addition to a uniform general state practice. Despite the occasional state practice in which some states explicitly referred to the status of “non-belligerent” (during the Second World War: Italy, Spain, Turkey, Argentina, Egypt, Bulgaria, Hungary, the USA, and Romania; after the Second World War: Italy during the Iraq War in 2003), this was not sufficiently uniform state practice (Bothe 2021:603). In addition, this state practice lacked the corresponding and necessary opinio juris, which is indispensable for the creation of customary international law. In this context, Sandoz explains that the declarations of states on “non-belligerent” status in the course of the Second World War were already purely political statements at the time (Sandoz: 2018:93). This is confirmed, for example, in the French Military Manual: “Les termes de neutralité bienveillante, de neutralité différenciée, de non engagement ou de politique de neutralité n’ont aucune valeur juridique” (Ministère de la défense 2012:66). The law of neutrality, like the international humanitarian law, does not recognize any further status. As Sandoz notes, when an international armed conflict breaks out, states are either neutral or conflict parties.

The Spanish Military Manual states in this context „[l]a neutralidad, en cuanto a estatus jurídico, se caracteriza, fundamentalmente, por ser un concepto unívoco, o, en otras palabras, por no admitir gradaciones; no se puede ser más neutral o menos neutral, sencillamente, se es neutral o no, se es neutral o se es beligerante” (Ministerio de defensa 2021:347).

Against this background, the majority of legal scholars reject this intermediate status as a norm of customary international law (Bothe 2021:603; Antōnopoulos 2022:16; Upcher 2020:33-36; Heintschel von Heinegg 2007:553; Heintschel von Heinegg 2006:283; Ferro, Verlinden 2018:33). This follows from the meaning and purpose of the law of neutrality – the containment of conflict. Similar to international humanitarian law, it is not relevant for the law of neutrality whether the use of force that triggered the conflict was legal or illegal or who is the aggressor and who is the victim (Bothe 2021:612), as the objective pursued is conflict containment.


Violations of neutral obligations do not make the state violating its neutrality a party to the conflict as long as it does not itself resort to the use of force (by joining the hostilities). However, violations of neutral obligations are not without consequences. A neutral state that does not comply with its neutral obligations must expect permissible countermeasures (Bothe 2021:612).

Some authors point out that the neutral state loses its neutral status due to systematic or significant violations of neutrality obligations (Bradley, Goldsmith 2005:2112). This view is also expressed, for example, in Australia’s Military Manual (Australian Defense Force 2006:§11.35) or the military manual of New Zealand (New Zealand Defence Force 2009:§16.2.4.). Although the protection of the right to neutrality has been lifted, the protection of the prohibition of the use of force is retained by the state violating the right to neutrality. Antōnopoulos states that this status “merely constitutes a kind of juridical ‘ante room’ of passage from neutrality to belligerency” (Antōnopoulos 2020:147). Upcher claims that states are in a state of “indirect participation of hostilities” due to their impermissible assistance, but points out that it is a grey area (Upcher 2020:57). It is undisputed that assistance provided to one of the parties to the conflict is inadmissible under neutrality law. It continues to constitute violations of the law of neutrality, to which the aggrieved belligerent can respond with countermeasures if necessary. This arises from state responsibility, as a neutral state can be held responsible for actions and omissions that violate its neutrality obligations towards a belligerent and can be forced to bear adverse consequences (Davis 2020:499).

Aggrieved belligerents often do not react to violations of neutrality. However, this in no way implies acceptance of the violation of the right to neutrality. If the aggrieved belligerent decides to react to the violation of the right to neutrality, it must first request the neutral state to put an end to the violation of neutrality and set a reasonable deadline for it to do so (San Remo Manual 1994:§22). If the neutral state is unwilling or unable to put an end to the violations, the aggrieved belligerent is entitled to take countermeasures. Taking into account the principle of proportionality, these may not exceed the extent “necessary to put an end to the violation” (Sandoz 2018:94). The complaining party to the conflict therefore has unarmed reprisals at its disposal, whereas armed reprisals are excluded. In general, jus ad bellum applies to the relationship between neutrals and belligerents, which is why the prohibition on the use of force is decisive for all actions. An exception to the prohibition on the use of force is the use of force in the course of self-defense in accordance with Article 51 of the UN Charter, which can only be triggered by an armed attack. Therefore, if the violation of the right to neutrality does not reach the threshold of an armed attack, the aggrieved belligerent cannot respond with force (Ferro, Verlinden 2018:§42). Nevertheless, there is a (political) risk that the state violating its neutrality will be attacked by the aggrieved belligerent.

In the past, not all inadmissible support was met with countermeasures. This is partly due to the fact that the aggrieved belligerent did not have the necessary military or economic means at its disposal to enforce compliance with the law of neutrality. In other cases, the “benevolent” neutrals were “simply lucky that their breaches of the law were not punished” (Heintschel von Heinegg 2007:554).

The question that arises is whether Russia can respond to the serious violations of neutrality with countermeasures, even though they also constitute support services that seem to be covered by the right to collective self-defense. According to Heintschel von Heinegg’s “theoretical considerations”, the unlawful aggressor, i.e. Russia, does not have to accept these violations and can respond with countermeasures. However, it can be assumed that Heintschel von Heinegg would no longer share this interpretation today. Davis (2020) makes a different contribution to this question. He examines the competing relationship between neutral obligations and bilateral defense agreements. Although his study focuses on the problem of competing norms of treaty law and customary law, it could be significant in this case, since defense agreements are essentially based on the right of collective self-defense. According to his conclusion, a neutral state that acts or intends to act contrary to the law of neutrality must decide which obligations it wishes to uphold and which it wishes to violate. This decision depends largely on the expected benefits and the possible countermeasures. Whatever the decision, either the contracting party will demand compensation or the aggrieved belligerent will impose countermeasures.

Are there any consequences for the law of neutrality to be derived from the support provided to Ukraine? Are we possibly experiencing a change in the law of neutrality as a result of state practice? Both questions must be answered in the negative. The above-mentioned violations of the law of neutrality are committed by a small group of states, predominantly from the West, from a global perspective. They do not constitute a general practice to change existing customary law. There is no apparent approval of these violations by other states. This is illustrated by the example of the sanctions imposed on Russia, which could also be considered contrary to the law of neutrality as they violate the duty of impartiality. Although the number of states participating in them is greater than the number of states providing military aid, the states of the Global South are completely uninvolved. Despite repeated and strong condemnation of Russian aggression, the Global South does not participate in the sanctions regime.


Both the arms supplies and the training of Ukrainian soldiers on German soil constitute massive violations of the law of neutrality. They do not make Germany a party to the conflict, but it can no longer invoke the protection of the law of neutrality. However, it retains the protection of its territorial integrity through the prohibition of the use of force. It cannot be ruled out that Russia may react to the serious violations of neutrality with countermeasures. The law of neutrality will not change as a result of this war.


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Amela Skiljan, 1989, LL.M.Eur, is a PhD candidate at the University of Kassel and co-chair of IALANA Germany; most important publication: “Are nuclear weapons illegal?”; writes on the subject of EU arms export controls.

[1] “Private arms trade”, meaning arms trade without any involvement of States, as envisaged by Article 7 nowadays only exists on the black market. By establishing an export licencing system, the State has to involve in the “private” trade. Moreover, it is actually deciding whether a transfer will take place or not. recall that Article 6 prohibits States from supplying belligerents “directly or indirectly”. By authorizing an arms export licence, a State at least indirectly supplies a belligerent with weapons. As long as a State decides on arms export licences on a case-by-case basis, the export is attributable to that State. As one commentator stated “[t]he traditional assumption that there is no governmental involvement in the pursuit of unimpeded economic gain by private actors from the supply of arms has become untenable.” (Nasu 2020:128).

[2] By accepting permanently neutral states as UN member states, the UN accept and respect their status. In the light of this, some legal scholars argued that the UN Security Council will not impose obligations on permanently neutral states that would violate their position. Nevertheless, measures adopted under Chapter VII of the UN Charter are binding on permanently neutrals too, but they do not have to take part in military operations. In such cases, they have to refrain from actions that would impede such operation. 

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