Nato Mig 29 - 03 Oct The Story of the Polish MiG-29: The Law of Neutrality and the Law of Air War
[Mateusz Piątkowski is an assistant professor at the University of Łódź, Poland (Faculty of Law and Administration, Department of International Law), lawyer, member of the Polish Society of Military Law and Law of War.]
Nato Mig 29
On February 27, 2022, EU foreign policy chief Joseph Borel announced that the European Council had decided to provide Ukraine with a package of high-value lethal weapons, including fighter jets. However, Western models may not be a meaningful military solution for the Ukrainian Air Force, as Ukrainian pilots are not experienced in flying them (but this may change over the course of the conflict). However, three NATO countries have machines in their inventory that are an important contribution to strengthening the capabilities of the Ukrainian Air Force: namely the MiG-29. Former Warsaw Pact members received a batch of this multi-role aircraft in the late 1980s, shortly before the fall of the Iron Curtain. Ukraine is particularly familiar with this aircraft and already has around thirty of these fighters in service, including the multiple-kill 'Ghost in Kyiv'.
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A significant part of NATO's MiG-29 fleet is operated by the Polish Air Force. Poland acquired Soviet-era fighters from several sources: direct exports, a 1995 exchange with the Czech Republic, and a 2002 donation from Germany. Polish MiG-29s have been updated to NATO standards, some of them with Israeli IAI manufacture. Between 2024 and 2026, all of these aircraft are expected to be replaced by the F-35 Lighting II purchased by the Polish government in 2020, so their service life is coming to an end. So, there is a favorable coincidence. Circumstances - The Polish Air Force has an older (but still airworthy) fleet of fighters already familiar to Ukrainian aviators.
Since the February 27 announcement, there have been significant developments in the case. On March 1, 2022, the Polish head of state stated that "[we] will not send our planes, which means that NATO is participating in a military intervention. (...) NATO is not part of an armed conflict". On March 2, 2022, US Secretary of State Anthony Blinken said in a televised interview that NATO countries had a "green light" to supply warplanes to Ukraine. On March 3, 2022, a Polish government spokesman denied that the fighter jets were operational. Combat mode from Polish territory. On March 8, 2022, the Polish Ministry of Foreign Affairs issued a statement in which they announced that "all MiG-29 aircraft are ready to be deployed at Ramstein Air Base - immediately and free of charge. They are at the disposal of the government of the United States of America". There was a quick response from the Pentagon's press secretary, who indicated that the official opinion of the Polish government was not one. Polish authorities noted that NATO should share collective responsibility for the decision to give. Ukraine and the fighters.
A country's decision to wage war using military fighter jets is an important step. The role of military aviation in modern conflict is vital. In the event of a conflict, since the Russian Air Force has failed to achieve air superiority, the export of twenty to thirty combat-ready fighter jets will effectively strengthen the combat capabilities of the Ukrainian Air Force. How does neutrality law view this act with particular reference to the law of war?
"The law of neutrality is the legal relationship between states engaged in armed conflict (combatants) and states not participating in such hostilities". In fact, the concept of neutrality is one of the oldest frameworks of international law. It developed significantly in relation to naval warfare and became a point of great importance in several treaties on naval warfare, such as the 1856 Declaration of Paris and the 1907 Hague Convention No. XIII on the Rights and Duties of Neutral Powers. In naval warfare. A similar restriction was adopted in the context of land warfare. All the documents mentioned above emphasize the well-known law of neutrality: the direct or indirect supply of war materials (including weapons of war) by neutrals is prohibited. However, private export of weapons is not prohibited.
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What about air combat? It should be emphasized that the law of war is only partially codified by Additional Protocol I to the 1977 Geneva Conventions (Article 49(3)). The codification includes the law of aerial bombardment of objects located on the ground and refers to the specific situation of the aircraft involved in the accident. Everything beyond these limits is shaped by customary international law and the general principles of IHL common to all dimensions of war.
Attempts were made to regulate the laws of war through the Air Warfare Rules (HRAW) of 1923. Because it was forged during the air raids between 1914 and 1918, these rules were never ratified, although they generally represented a reflection of state practice. The document is best known for the chapter on air raids, but the fact is that the draft was large. . In the scope, they included a section on neutrality in the war when they had forgotten. Article 44 of the HRAW states that "it is prohibited to provide a neutral government with a combat power, directly or indirectly, by means of aircraft, parts thereof, or aircraft material or ammunition". The conditions are simple and follow the general prohibition of the neutral state providing the belligerents with any type of military equipment (naval, land, or air).
Certain provisions of the HRAW, now, confirm the value of customary law (for example, the definition of a military aircraft). The rest remains speculative, including suggestions regarding the export of military aircraft by neutral combatants. Although no clear state practice was recorded during the First World War, it is true that the drafters followed the main trend of international law in this regard.
The 2009 Harvard Handbook on the International Law Applicable to Air and Missile Warfare (Harvard Handbook) makes direct reference to the HRAW principles (rules 165 and 173). The Harvard Handbook is not a source of international law – it is a reflection of customary law. However, are states still following HRAW's directives? Here are some historical examples:
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As observed, state practice in this regard is scattered and ambiguous. Especially in the second half of the twenties
Further, despite the fact that the export of combat aircraft is a serious contribution to a country in the war, in my opinion it did not count as a "law of direct hostilities", which reclassifies the status of neutral states to belligerents. In fact, the Russian Ministry of Defense draws a line between "neutral" and "hostile," stating that the latter should be considered if an external state shelters Ukrainian military aviation over neutral airfields.
Laws of neutrality distinguish between public and private arms exports, and the latter are not prohibited. In the Air Warfare Act, Article 46 HRAW states that there are only two defensive obligations in the context of private operations: to prevent the departure of military aircraft in full combat mode (armed with tanks) and to stop cross-border flights. Between a neutral state and a belligerent state if the aircraft is piloted by members of the armed forces in combat readiness. But as the Harvard Handbook observes, training in this sense is uncertain.
In other areas of neutrality law and air strikes, we have evidence of how the law can become "fluid." On February 24, 2022, a Ukrainian Air Force Su-27 fighter jet flew into Romanian airspace and was intercepted by a Romanian F-16, which forced the intruder to land at Bacau Air Base in Romania. The reasons behind the Ukrainian pilot's decision to enter neutral airspace are unknown; It can be assumed that the pilot was forced to leave Ukraine because he destroyed his own air base or tried to avoid fighting with the enemy. But on March 1, 2022, Romanian authorities agreed to move the Su-27 fighter to the edge of Romanian airspace, eventually returning it to the Ukrainian Air Force. The plane took off without ammunition (the Su-27 was fully equipped when detained). It is not known who was flying the plane. Again, from the point of view of the law of neutrality and air warfare, warlike military aircraft must be maintained during war, and in fact, there is some practice in this regard:
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1. The rules of neutrality and airstrikes regarding the dispatch of military aircraft by a neutral state to a belligerent state are too clear and have political implications to become part of customary international law, especially if the recipient of the aid is the victim. Attack actually, practice
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