Drone attacks on Moscow: “The right to self-defense does not end at the border”

Asked about drone attacks on Moscow, Foreign Minister Baerbock replies that Ukraine is acting within the framework of international law. An international law expert from the University of Cologne explains the basics of the right to self-defence.

tagesschau.de: Asked about the increasing presence of drones over Moscow, Federal Foreign Minister Annalena Baerbock replied at a press conference: “Russia attacked Ukraine. That’s why Ukraine has a guaranteed right in the UN charter to defend its own country and its people.” This can be understood as if she also rated the drone attacks on Russia as permissible. Is there a corresponding regulation in international law?

Claus Kress: In fact, the Foreign Minister did not expressly name the relevant legal basis. It can be found in Article 51 of the UN Charter. This is where the right to self-defense comes into play. This right requires an armed attack.

Ukraine has been the victim of an armed attack by Russia for some time. This continues, and Ukraine is defending itself against this within the framework of international law.

The power to defend oneself does not end geographically at the border of the state attacked, but in principle extends to the territory of the attacker. There are two other, unwritten requirements: self-defense measures must be necessary and proportionate.

“International law must be observed – also in the case of self defense”

tagesschau.de: Russia accuses Ukraine of attacking high-rise buildings in a business district in Moscow – there is no information from the Ukrainian side so far. But would self-defense authority include such attacks?

cress: A state that exercises its right to self-defense must also comply with international humanitarian law. Accordingly, targeted military attacks on civilian targets are prohibited. Whether a target is of a civilian or military nature must be examined and evaluated on a case-by-case basis.

A target is military if, by virtue of its nature, location, purpose or use, it contributes effectively to military action and if its total or partial destruction, capture or neutralization constitutes a clear military advantage under the circumstances.

By the way, according to the international treaty law that applies to Ukraine, Ukraine should not carry out targeted military attacks on civilian targets in the form of reprisals. Ukraine should therefore not attack civilian targets in order to put pressure on Russia to refrain from future attacks on civilian Ukrainian targets, as have been documented many times during the course of the war so far.

In classical international law, the right to military reprisals applied to a comparatively broader extent. The basic reason for today’s ban on reprisals is the humanitarian concern to protect civilians more extensively than in the past, even during the course of the warfare.

“No ban on the use of drones”

tagesschau.de: Is the use of drones as a weapon of war regulated under international law?

cress: The use of drones in international armed conflicts is not prohibited as such under current international humanitarian law, and there is no corresponding ban on explosive ordnance.

That doesn’t mean, however, that drones can be used in warfare at will. Rather, a defense attorney may only use drones in accordance with international humanitarian law

“What matters is the degree of danger”

tagesschau.de: Baerbock’s Estonian counterpart, Margus Tsahkna, went even further in his response to the question about drones over Moscow, emphasizing, among other things, “Russia is responsible for instigating genocide.” Does this play a role in assessing the necessity and proportionality of the defense?

cress: The concept of genocide in international law is defined in the Genocide Convention and its requirements are strict. The question of whether Russia’s actions in Ukraine meet these requirements or could do so in the future lies on a different legal level than that of the requirements of the right of self-defence.

The crucial reference point for the necessity and proportionality of self-defense is the extent of the armed attack to which the defender is exposed. The scale of the Russian attack is evidently enormous.

tagesschau.de: Tsahkna also stated: “We fully support Ukraine in what it is doing.” So, can the “we” meant by Tsahkna have any repercussions if Ukraine, for its part, violates international law?

cress: I understood the Estonian Foreign Minister to mean that he made his statement on the basis of the assumption, confirmed by the German Foreign Minister and himself, that Ukraine complies with international law. Knowingly assisting a state in violating international law by another state is prohibited under international law.

The conversation was led by Jasper Steinlein, tagesschau.de