Come at me, bro, says Poland
German options
Chancellor Scholtz has been making himself, personally and Germany as a state a laughing stock in Europe and the world, over his changing terms for Poland and other countries, but not Germany, to export Leopard 2 tanks to Ukraine to stop Russian genocide.
Germany can’t hide behind legalism here.
Poland is already saying: Come at me, bro. Sort of traditional.
The fact is that if Poland exports Leopards without German consent, then there’s not much Germany can do about it. Unless there’s a secret kill switch in the tanks of course… which is possible and I am sure is fitted to say F-35s (and the Israelis no doubt spent a lot of time finding and removing them).
The Leopards and export limitations are covered by an agreement between the Polish (SLD - ex-communists) and German (Schroder government!) defence ministers from 29 January 2002. There might be different agreements in force, doesn’t really matter. There’s also a study on German Polish relations after the fall of communism. Both links are in Polish but you can use Google Translate.
If Poland breaches its commitment (presumed, I haven’t seen the documents) not to export Leopards, then Germany might have some very flawed contractual or diplomatic options.
We don’t have the content of the agreement so I don’t know what exact export restrictions there are and what contractual (treaty) enforcement/adjudication procedures are foreseen.
But we know it’s basically a minor rank treaty and as such covered by the Vienna Convention on the Law of Treaties. The International Court of Justice (ICJ) is a permanent court dealing with relations between states, such as treaties like this one. Treaties often have arbitration clauses which send the parties to a different venue. Whatever the venue, it doesn’t really matter because you know what… international courts don’t have enforcement procedures other than indirect.
If Germany goes to say the ICJ over a breach, then the ICJ might quickly grant a temporary injunction - which says that for the time of the case, Poland can’t export Leopards. Or the ICJ might grant a final verdict saying, bad Poland, don’t do this.
And Poland says, so what? Come at me, bro.
Guess what, the ICJ granted a temporary injunction against Russia over the Ukrainian invasion. And what.
Germany can’t invade Poland to enforce an ICJ judgment. That’s a breach of the UN Charter. Yeah I know, Iraq 2003… well the US and allies used the very very iffy justification of a UN Security Council resolution relating to the previous war, to justify this invasion. Germany won’t get a resolution against Poland over a contractual breach, even regarding weapons.
If arbitration Germany can try and seize Polish assets granted before arbitration (very possible) or the ICJ (very unlikely) … well Poland has more German assets than the other way around. Also, this would be tantamount to declaring war against Poland. Arbitration verdicts are routinely ignored between states.
I think the ICJ is both unlikely to grant a judgment against Poland at all, especially a monetary judgment. There is a massive issue of sovereignty and self-defence considerations here. Poland can incredibly easily say that Russia poses a direct threat to Poland that only the export of Leopards can mitigate. Furthermore, Poland can scream that Russia is engaging in genocide - there’s already a European Parliament resolution almost saying that and that Poland has a responsibility to protect and act under a landmark UN Resolution in 2005 which mostly definitely trumps the 2002 agreement under international custom and the Vienna Convention on Treaties. Now you can argue whether the responsibility to protect covers exporting weaponry… but many have already argued that R2P even covers the war against a party committing genocide, not just arms exports.
Germany can get in a huff over breach of contract or an unenforced verdict and refuse to supply parts and weapons to Poland, including for the Leopards. Well, the Ukrainians are likely to go through the Leopards very quickly in the panzer killing lands of Ukraine. The Ukrainians are very good at scavenging and cannibalizing tanks. Meanwhile, Poland won’t have Leopards or fewer to worry about. The PiS government hates Germans and would love the opportunity to convert to US arms, including M1A2s. A conflict would also be a boon in an election year.
Of course, Germany will have plenty of indirect diplomatic options to punish Poland including limiting EU funding but that will be a terrible look and will unite other European states, especially those neighbouring Russia, against Germany and make Poland a leader. A position that xenophobic, Polexity and previously Russia adjacent via Hungary’s fascist government, PiS does not deserve.
I’m not an arms control guy but I do know the basics plus have been doing a lot of work on R2P plus genocide…
This rather sad article (register for free access to a ton of JStor articles) basically says there are no real enforcement options: HOW TO ENSURE COMPLIANCE WITH ARMS CONTROL TREATIES? (UN resolutions, shouting at the ambassador, etc).
I have put together some studies and files on arms control also in this Dropbox link, including Polish materials in English on arms control regulation.
Come on, Scholtz, you’re going to win PiS re-election. That’s not good for Europe. Platforma also stands with Ukraine.
Scholtz is also destroying European defense sovereignty utterly by saying sending Leopards is dependent on the US sending M1 tanks.
Update 23 January 2023
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