Articulating Arms Control Law in the EU’s Lethal Military Assistance to Ukraine

*This piece was originally published on Just Security on 30 March 2022.

In response to the Russian Federation’s unprovoked invasion of Ukraine, the Council of the European Union (EU Council) issued an unprecedented Decision (2022/338/CFSP) on Feb. 28, 2022 to finance and supply 450 million euros of lethal military assistance to the Ukrainian Armed Forces, an amount that was doubled in Decision (2022/471/CFSP) on Mar. 23, 2022. But in this rush to war, the EU’s stringent framework for arms control has received little scrutiny. In particular, the EU Council has not publicly articulated how it is accounting for long-term conflict risks in Ukraine, such as the diversion of weapons to Russia and to undesirable non-state armed groups; the post-conflict proliferation of small arms and light weapons and concomitant increases in transnational crime and regional instability; and even the potential for allegations of war crimes on the Ukrainian side against Russian prisoners-of-war, such as those that surfaced on Mar. 29, 2022. Articulating these risks in EU decision-making on Ukraine is essential to avoid sidelining the arms control framework in Europe, and to preserve global norms on arms control.

The right to collective self-defense under Article 51 of the U.N. Charter provides a fundamental legal basis for individual States to supply lethal military assistance to Ukraine. But the specific powers for the EU to finance and coordinate such supplies are found in the new European Peace Facility (EPF) established in March 2021. The EU’s powers in the EPF are conditioned, however, by the assessment criteria for arms exports in the EU Common Position (2008/944/CFSP) of Dec. 8, 2008, and the Arms Trade Treaty of Dec. 24, 2014 (ATT). While it may be tempting for the EU Council to provide carte blanche for weapons supplies to help Ukraine in this time of crisis, the legitimacy and resilience of the international system of arms control laws requires a more methodical approach.

An Outpouring of Lethal Aid

Large shipments of weapons from EU Member States to Ukraine were announced almost immediately upon the Russian invasion on Feb. 24, 2022. First of all, Germany, acting bilaterally with Ukraine and prior to the EU’s action, reversed its long-standing policy of not sending weapons to conflict zones. Subsequent assistance has been provided by Member States, sometimes bilaterally and sometimes by implementing the EU Decision to Assist Ukraine: The Netherlands, France, Denmark (also here), Sweden, Belgium, Finland, Norway, Czech Republic, Slovakia, Spain (also here), Portugal, and Romania have sent Stinger missiles, anti-tank missiles, mortars, rocket-propelled grenade launchers, sniper rifles, machine guns, assault rifles, pistols, grenades, fuel support, helmets, protective vests, body shields, nuclear-biological-chemical protection suits, night vision goggles, portable radios, analogue repeaters, medical supplies, field rations, and ammunition. Notably, it is the first time Sweden is sending weapons to a country at war since the Soviet invasion of Finland in 1939. Ireland is providing body armor, medical supplies, fuel, and other non-lethal aid.

Outside the EU, U.S. military assistance reportedly includes stinger missiles, javelin anti-tank missile systems, body armor, and other small arms. In total, financial support from the United States for Ukraine is at least $13.6 billion, including humanitarian aid, defense assistance, and funds for cybersecurity. The U.K. is sending Starstreak anti-aircraft weapons. Australia and Canada have announced further contributions.

What is the Legal Basis for EU Lethal Military Assistance to Ukraine?

Under international law, EU Member States have the right, pursuant to Article 51 of the U.N. Charter, to assist Ukraine militarily as it is under armed attack from the Russian Federation and is exercising its inherent right to self-defense. This is an exception to the prohibition on the use of force in Article 2(4) of the U.N. Charter.

It follows logically that any EU Member State must also be allowed to carry out lesser military actions that would assist Ukraine in its self-defense, viz. the provision of lethal military assistance. Indeed, Recital 12 of the EU Common Position explicitly recognizes that “States have a right to transfer the means of self-defence, consistent with the right of self-defence recognised by the UN Charter.”

However, although international law permits EU Member States to agree to jointly provide military assistance to Ukraine, under EU law they are prevented from using the regular EU budgetary framework to do so. Article 41(2) of the Treaty on European Union (TEU) prohibits EU funding from being used for expenditure arising from operations having military or defense implications..

For the first time in its history, the EU is relying on the off-budget EPF financing instrument, created in March 2021 to provide lethal assistance to a third State engaged in armed conflict. The EPF was envisaged primarily for use in Sahel peace-keeping operations and EU missions such as the non-lethal assistance to Mozambique. It was unforeseeable that 12 months later, the EPF would be used to support Ukraine in a large-scale international armed conflict with Russia. The EPF has thus dramatically broadened the legal powers of the EU Council to intervene in Ukraine with military aid, playing a much larger role in the conflict as a bloc than would have been possible under the regular EU budget.

Financing arms supplies under the new European Peace Facility adopted on March 22, 2021

The EPF was established by Council Decision (CFSP) 2021/509 (the EPF Decision) adopted by the Council of the European Union on Mar. 22, 2021.

The EPF Decision permits the EU Council to coordinate the financing of military assistance measures. Article 9 requires a “risk and safeguards methodology” to assess possible elements that can mitigate risk and supplement the military assistance, as well as arrangements for monitoring and evaluation, and controls and safeguards. Assessment should also include “conflict sensitivity and context analysis, and a risk and impact assessment.” (Article 56(4)). Specifically, assistance measures under the EPF must comply with existing arms control laws (Article 56(3)), some requirements of which are reinforced by Article 62 (diversion) and Article 64 (breaches of international human rights or humanitarian law).

In terms of how the EPF functions, a decision to finance an assistance measure is made collectively by a committee of representatives of each Member State “following a request from a prospective beneficiary” (Articles 6 and 59(1)). The implementation of a decision, under Article 33(2), can then take place through, inter alia, indirect management by Member States’ ministries of defense based on a contract between the EPF and the Member State. This means, according to a European Parliament briefing note:

The aim of the [EPF] is, essentially, to work around restrictive rules on the use of the EU budget…[p]ursuant to Article 41(2) TEU… This allows Member States to create off-budget funds to fund activities that are carried out jointly, in the EU’s name.

Assessment under the Integrated Methodological Framework

The need for a “risk and safeguards methodology” is set out in Article 9 of the EPF. This is fulfilled by the Integrated Methodological Framework (IMF), which is the subsidiary guidance document to the EPF containing the assessment principles for military assistance. Unlike the detailed criteria set out in the EU Common Position, the IMF is not a public document.

According to the Q&A document of the EU External Action Service, the “key principles” underpinning the IMF are as follows.

1. Compliance with all relevant legal instruments and best practices based on national, international, and EU rules, standards and policies in the area of the supply of military equipment, and respect for international law, including international human rights law (IHRL) and International Humanitarian Law (IHL) by the beneficiary. This includes compliance with all Union, national, and applicable international arms export control laws and with the international standards established by the Arms Trade Treaty (ATT), including by the beneficiary.
2. Protection of the EU and of local populations, based on the understanding that transfers to conflict or emergency contexts pose heightened risks;
3. Proportionality, to avoid the risk of destabilizing accumulations in sensitive contexts;
4. Post-delivery controls

The IMF calls for a broad assessment of conflict risk, including a proportionate and risk sensitive analysis, political oversight, assessment, conditions, and control to allow for a tailor-made approach according to specific circumstances. While Article 56(3) of the EPF Decision requires “respect [for] the principles” laid down in the EU Common Position, the IMF requires decision-makers to assess arms exports based on a contextual case-by-case assessment of conflict risk.

We know that the EU Council’s previous decisions on military assistance under the EPF, although limited in number, tended to give more context, impose more risk mitigation measures, and be accompanied by greater justification and explanation for their use than the EU’s decision-making on Ukraine has so far offered. And this despite previous EPF assistance measures being far smaller in value (averaging around 10 million euros) than the 1 billion euros for Ukraine. The EPF decisions on Mali, Moldova, Georgia, Bosnia and Herzegovina, and the African Union, as well as existing assistance to Ukraine from 2021, required various arrangements on accountability for breaches of rights, proper and efficient use of transferred assets, sole use by the intended national armed forces recipients, maintenance and training requirements, post-shipment controls (delivery verification, inventory reporting, on-site visits with follow-up checks), and other measures and controls stipulated by the IMF.

Despite the detailed principles of the IMF and the potential under the EPF for expressing mitigation measures in EPF decisions, so far, EU announcements of weapons transfers to Ukraine have not articulated the legal standards in the EU Common Position or the ATT, instead describing the transfers in policy terms (as a moral duty, or breaking a ‘taboo’). The EU foreign policy chief Josep Borrell said in a statement “Another taboo has fallen. The taboo that the European Union was not providing arms in a war” (see also Borrell to the Guardian).

Arms Control Risk Assessment in the EU Decision to Assist Ukraine

The EU’s lethal military assistance since Feb. 24 was made pursuant to the EU Decision to Assist Ukraine: the “Council Decision (CFSP) 2022/338 of 28 February 2022 on an assistance measure under the European Peace Facility for the supply to the Ukrainian Armed Forces of military equipment, and platforms, designed to deliver lethal force,” amended by Decision (2022/471/CFSP) on Mar. 23, 2022. The reasons given are short, do not set out assessments under existing arms control laws, and while mentioning the risk of violations of human rights and international humanitarian law, do not impose detailed monitoring or follow-up obligations.

Despite briefly recalling the need for compliance with the EU Common Position in its preliminary recitals, the EU Decision to Assist Ukraine does not articulate its assessment in this regard or acknowledge the risks reflected therein. The EU’s public announcements have not engaged with the substance of the EU Common Position, leaving questions about its compliance.[1]

Of the legally binding criteria set out in Article 2 of the EU Common Position, the most relevant appear to be Criterion Three and Criterion Seven, and potentially Criterion Two.

Criterion Three of the EU Common Position: ‘aggravating an armed conflict’

The first of these, Criterion Three, is titled “Internal situation in the country of final destination, as a function of the existence of tensions or armed conflicts.” It provides:

Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. (emphasis added).

On a prima facie reading, Criterion Three is relevant since there is clearly an international armed conflict taking place in Ukraine, the country of final destination, and this far exceeds the level of an “existing tension.” It could be argued that EU supplies “would aggravate” this existing conflict, when Criterion Three is read in a literal manner. Sending weapons to Ukraine could aggravate the conflict for the simple reason that more weapons will mean a more lethal conflict, hence an aggravated conflict. But the role of weapons in the Ukraine conflict is of course more complex than this, and arming Ukraine may just as easily be analyzed as mitigating or reducing the severity of the conflict.

We also cannot know, at this stage in the war, whether supplying lethal military assistance to the Ukrainian Armed Forces “would prolong” the armed conflict with Russia. The EPF assistance measures are evidently designed to hamper the Russian advance and prevent a rapid takeover of Kyiv. Depending on strategic assessment of the conflict as it stands, the assistance provided could support regional stability and curtail Russia’s advance by strengthening Ukraine’s defenses and enabling it to effectively resist the Russian attack, forcing a quick retreat and therefore shortening, rather than prolonging, the conflict. On the other hand, the assistance could fail to live up to expectations of stopping Russia and instead foster a protracted conflict in Ukraine, an arms race, and/or the emergence of heavily-armed non-state groups.

There are high stakes to these factual assessments. The absolute “shall deny” character of Criterion Three would require the EU to desist from providing lethal military assistance to Ukraine in the event of an assessment that the weapons would “aggravate” or “prolong” the existing conflict in Ukraine. A similar long-term conflict risk assessment is required by Article 7(1)(a) of the ATT as to whether the weapons exports would either “contribute to or undermine” international peace and security.

This is a point worthy of further legal scrutiny, since it is unclear whether international arms control laws have developed sufficiently with respect to situations where the recipient State is under unprovoked armed attack from another State. Lawrence Lustgarten argues that Criterion Three was envisaged to avoid the risk of EU Member States supplying weapons that would stoke nascent internal armed conflict in the recipient countries and it may be that Criterion Three requires revision, or clarification, in order to address situations of international armed aggression such as Ukraine. Indeed, a contextual reading of Criterion Three suggests that “internal situation in the country of final destination” refers to civil wars or armed conflicts between the government and rebel forces, although this interpretation was not clarified in the drafting of the EU Common Position. The terms have been left by the EU Council for Member States to interpret, but to date, there has been limited opportunity to define the impact of external acts of aggression on a country’s “internal situation”. Overall, there is no reason to believe that the scope of Criterion Three extends beyond negative prohibitions based on the internal status of a country, to situations of external armed attack. These prohibitions are thus not triggered in the Ukraine case, and a license would not be prevented by Criterion Three on the basis of international armed aggression. In short, Criterion Three was not envisaged by the EU Council as imposing a substantive obstacle to exports of this kind.

Criterion Seven of the EU Common Position: ‘diversion to undesirable end-users’

The risk of diversion from the intended recipient, in this case the Ukrainian Armed Forces, is expressly addressed by Criterion Seven, requiring assessment of:

[T]he impact of the military technology or equipment to be exported on the recipient country and the risk that such technology or equipment might be diverted to an undesirable end-user or for an undesirable end use…

At least three possibilities have already been raised in commentary on the Ukraine conflict of relevance to a Criterion Seven assessment: (i) the risk of inadvertently arming Russia if it overpowers Ukrainian forces and captures their weapons, (ii) the very clear risk of diversion of small arms supplied to Ukrainian Armed Forces that are already being provided to citizens, and (iii) the wide range of “undesirable” militia groups that may get their hands on weapons if the war devolves into unconventional warfare across Ukraine.

Criterion Seven is bolstered by the Article 5 requirement that export licenses “shall be granted only on the basis of reliable prior knowledge of end use in the country of final destination” The absolute nature of Criterion Seven and Article 5 (“shall”) could suggest a denial of arms exports to Ukraine in current circumstances, absent reliable assurance that the weapons will be used only by the Ukrainian Armed Forces and are not at risk of diversion. At the least, the EU decision-making on Ukraine should recognize the risks of diversion, as a means to engage with the on-the-ground reality of sending weapons to Ukraine at present. Doing so would lead to a more nuanced and well-reasoned export policy, even if it is ultimately determined by the EU Council that the risks are justified, and that arming Ukrainians who are not part of the regular armed forces is not “undesirable end-use” in the sense of Criterion Seven, since they are fighting against Russia on behalf of Ukraine.

Criterion Two of the EU Common Position: potential relevance to alleged Ukrainian war crimes

Criterion Two of the EU Common Position on “Respect for human rights in the country of final destination as well as respect by that country of international humanitarian law” could hold some prima facie relevance for supplies to the Ukrainian Armed Forces:

Having assessed the recipient country’s attitude towards relevant principles established by instruments of international humanitarian law, Member States shall: (c) deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used in the commission of serious violations of international humanitarian law (emphasis added).

In recent days, the first credible allegations have emerged that Ukrainian Armed Forces may have committed war crimes against Russian prisoners-of-war. While at presentthere are no widely-accepted allegations of Ukrainian war crimes to our knowledge, it could be argued that the threshold for denial under Criterion Two is quite low – it would be sufficient for such allegations to amount to a clear risk that arms supplied to the Ukrainian Armed Forces might be used in the commission of serious violations of international humanitarian law.

But even if a small number of allegations of Ukrainian war crimes are proven, it is unlikely that Criterion Two would bar EU arms exports to Ukraine in the current circumstances of the international armed conflict. Isolated war crimes are insufficient, on their own, to fatally prejudice a country’s existing record of “respect for international humanitarian law” such as to generate a “clear risk,” particularly where the allegations are taken seriously, investigated, and court-martialed through military tribunals as appropriate (as Ukraine appears to be doing so far).Criterion Two invokes a general assessment of a country’s record of adherence to, and attitude towards, international standards, and does not expressly address international armed conflict with another State. As such, a small number of isolated rights violations during an armed conflict would not trigger a prohibition on each and every arms export to the country. This understanding of Criterion Two can be seen in the arms exports assessments litigated before Dutch courts on the basis of Egypt’s poor human rights record.

Nonetheless, the Criterion Two risks associated with arms exports to Ukraine are an aspect of the conflict that EU lawyers will be monitoring closely. In the event numerous allegations of Ukrainian war crimes start to surface, the compliance of the EU’s arms policy with Criterion Two would be in jeopardy and require reconsideration. It should be noted here that such risks of “Ukrainian war crimes” would not be limited to perpetration by the Ukrainian Armed Forces. They would also extend to other potential recipients (e.g. Ukrainian militia and armed civilians) provided that the risks are clear at the time of export assessment that weapons would be used in war crimes.

The requirements of the ATT are also engaged here (as per the compliance expressly called for in the IMF’s key principles). Specifically, the provisions of Article 7(1)(b) of the ATT require an assessment of the possibility that arms sales could be used in violations of international humanitarian or human rights law. Article 7(3) dictates that “if the exporting State Party determines there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.” These standards largely mirror those of Criterion Two of the EU Common Position, and further underline the need for greater attention to the standards of global arms control law as the conflict in Ukraine develops.

Which other requirements could be relevant to the EU’s assessment of the potential impact of arms exports on exacerbating the war?

The title of Criterion Four might look relevant (“Preservation of regional peace, security and stability”). But it does not apply, since Ukraine is neither “aggressive[ly] us[ing supplied arms] against another country, or us[ing them] to assert by force a territorial claim.”

The requirements of the ATT are relevant here, and in this regard, compliance with the ATT is expressly called for in the IMF’s key principles. Article 7(1)(a) of the ATT requires assessment of the possibility that an arms export “would contribute to or undermine peace and security”. Article 7(3) then requires that “if the exporting State Party determines there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.”

In general, the ATT obligations reinforce the EU Common Position requirements, and underscore the need for greater attention to the standards of global arms control laws in deciding whether and how to assist Ukraine. It is worth noting, however, that Article 7(1)(a) of the ATT could provide a useful legal test for application in the EU context. This provision calls for a balancing act as to whether exports to Ukraine would “contribute to” or “undermine” international peace and security. The assessment under Article 7(1)(a) may provide a justification for the EU Council’s exports, on the grounds that, on the one hand, arming Ukraine to help it defend itself offers a potential contribution to regional stability, and that this outweighs the negative risk, on the other hand, of exacerbating the war (i.e. undermining international peace and security). Recourse could be had to Article 7(1)(a) of the ATT, since a legal basis in the EU Common Position for such a justification, based on this “balancing” approach, is less clear.

EU Lethal Military Assistance to Ukraine is Permitted – But Must Account for Conflict Risk

 To sum-up, Article 51 of the U.N. Charter permits the EU to finance and coordinate the provision of lethal military assistance to Ukraine, and this does not appear to be prohibited by the EU Common Position, despite concerns over some of the criteria in Article 2.

However, the provision of lethal military assistance under the EPF, read in conjunction with the IMF, requires a broader strategic assessment of conflict risk that goes beyond the requirements of the criteria. In fulfilling EPF Article 9, the IMF requires a broad assessment of conflict risk with reference to its key principles.

As such, the EU Council should take into account, and ensure that it expresses in its decisions and public communications, some of the possible risks entailed by a free flow of weapons into Ukraine:

• Long-term arms proliferation. Flooding conflict regions with weaponry has unintended consequences and blowbacks (think former-Soviet Kalashnikov AK-47s supplied into African conflicts, the United States arming the mujahedeen in Afghanistan, or more recent U.S. support to the far-right Azov regiment (here and here));
• Exacerbating transnational organized and regular crime;
• Undermining regional stability, and international peace and security, whether by prolonging this conflict or fostering others;
• Increasing the lethality of the conflict and unintended consequences of explosives for civilian casualties;
• Massive environmental impacts;
• Allowing weapons to fall into Russian hands or diversion to other “undesirable” non-allies (Putin already claimed that “[a]s to the delivery of arms, especially western-made ones which have fallen into the hands of the Russian army, of course I support the possibility of giving these to the military units of the Luhansk and Donetsk people’s republics” (emphasis added));
• The non-utility of weapons that Ukrainian forces cannot operate effectively;
• Violations of international human rights law and international humanitarian law may also be committed with arms supplied to the Ukrainian Armed Forces (this was in fact the only risk explicitly recognized in the EU Decision to Assist Ukraine, in Article 6(1));
• The reality and feasibility of guarantees from Ukraine, reliability of end-user certification, and efficacy of follow-up monitoring; and
• Well-documented risks of corruption in the arms industry and the potential for profiteering from an arms race in the Ukraine conflict.

It is both necessary and desirable that lawyers in EU defense ministries articulate the framework through which the EU Council is required to take decisions on lethal military assistance to Ukraine. Doing so would contribute to demonstrating that EU law is being followed, that the key principles of the IMF are being respected, and that the numerous risks associated with sending large volumes of weaponry to Ukraine are being carefully scrutinized.

Postscript: To some extent, the approach of the Council was inadvertently disclosed through a leaked confidential Concept Note dated Feb. 27, 2022 (published on the Statewatch website) containing the summary proposal that led to the EU Decision to Assist Ukraine.

The Concept Note refers to conflict sensitivity, context, and risks together with initial considerations for an impact assessment, as well as safeguards and mitigating measures. It states that:

The proposed assistance measure, like any comparable policy or intervention, carries a general risk of driving violence and conflict. Similarly, there may be a risk of facilitating violations of IHRL/IHL even if there is minimal credible evidence of transgressions by the UAF in the recent period. Against this should be measured the cost of inaction in the face of the severe threat to Ukraine’s security, territorial integrity and civilian population.

The Concept Note lists a number of potential risks and benefits of the assistance, including “the equipment provided ends up in the wrong hands,” as well as listing the proposed safeguards including “[t]he equipment will [not] be transferred to any Ukrainian bodies outside the UAF […] without the prior approval of the High Representative.”

While the confidential Concept Note provided a starting point for a discussion of conflict risk, it contains no substantive in-depth factual analysis of the Ukraine scenario in relation to these risks, nor does it articulate the legal basis in the EU Common Position (and the ATT) for the assessment of these risks. Ultimately, the analysis set out confidentially in the Concept Note is not only superficial and inadequate, but it also did not make it into the final version of the EU Decision to Assist Ukraine.

It should be emphasized that although the Concept Note makes brief reference to many of the relevant risks in supporting Ukraine, this is not done with reference to the framework criteria of the EU Common Position or the requirements of the ATT.