Law of Neutrality under the Laws of War – Analysis from a Current Affairs Perspective
The law of neutrality regulates the conduct between parties which abstain from any participation in war (‘neutrals’) and those which are directly involved (‘belligerents’).1A.R. Thomas, James C. Duncan, ‘The Law of neutrality’ < https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?article=1558&context=ils#:~:text=The%20law%20of%20neutrality%20defines,the%20impact%20of%20war%20on> accessed 25th January 2023. The principles for how such states must interact and conduct themselves were codified primarily in the Declaration of Paris of 1856, the Hague Convention V 1907 and the Hague Convention XIII 1907. These Conventions set out how neutrality applies in land wars as well as maritime wars respectively. Additionally, these rights of a neutral state also include the right of territorial integrity, which prevents belligerent states from using their territory, including their airspace.2The Editors of Encyclopaedia Britannica, ‘neutrality’ < https://www.britannica.com/topic/neutrality> accessed 25th January 2023. While international humanitarian law does include protections for those who choose to remain neutral while their country is at war (such as those who wish not to participate in hostilities as combatants), the law of neutrality guarantees protections for a state that chooses not to participate in an armed conflict.3Icelandic Human Rights Centre, ‘Human Rights and Armed Conflict’ (Icelandic Human Rights Centre) < https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-in-relation-to-other-topics/human-rights-and-armed-conflict> accessed 7th February 2023; n (2).
Today, most conflicts around the world fall under the category of Non-International Armed Conflicts (NIACs); hence, it is important to consider how the law of neutrality may apply to NIACs. Therefore, this paper will first consider the law of neutrality under international humanitarian law, through examples like Switzerland during the World Wars. It will discuss to what extent the current law of neutrality applies to NIACs, using Syria as a case study.
The Laws of Neutrality
As has already been mentioned, the law of neutrality differentiates between neutral and belligerent parties to a conflict. While its main purpose is to localise war by limiting hostilities to the territory of those participating in hostilities, the law of neutrality also serves to reduce the impact such conflicts have on international commerce.4n (1). The need for such principles came about at a time when countries no longer practiced the proclamation of war against another state which had been traditional state practice throughout history. For instance, in 1940 Germany officially declared war against the United States and Congress responded in like during the Second World War.
This, coupled with collective security arrangements made it more difficult to recognize when hostilities developed into an outright war in the absence of explicit declarations.5Ibid. Article 5 of the North Atlantic Treaty explicitly calls for all member states to individually or collectively defend parties that have been attacked by external forces, including the use of armed resistance.6The North Atlantic Treaty 1949, article 5. A recent example is NATO’s collective security arrangement being implemented in Syria where there were a multitude of NIAC’s and multiple states were engaged in hostilities. Foreign involvement in this situation was widely perceived as a proxy war between the US and Russia due to political tension existing between the two powers in the absence of an outright declaration of war against each other.7Felipe I. Rosales, The Syrian Civil War: A Proxy War in the 21st Century (California State University Maritime Academy, 2019). Due to these developments, it became necessary to develop the laws of neutrality to limit the scope of such wars and protect those who were not interested in partaking in the hostilities.8Kentaro Wani, Neutrality in International Law (Routledge, 2018).
Neutrality had already begun gaining a foothold in state practice in the 17th and 18th centuries when countries developed the distinction between neutrals and belligerents and their reciprocal rights and obligations.9Congressional Research Service, ‘International Neutrality Law and US Military Assistance to Ukraine’ (Congressional Research Service, 26 April 2022) 2. It was common practice to recognize an obligation of neutral states to not only refrain from participating in hostilities but to also treat all belligerents with impartiality.10Ibid. For example, the European nations of Malta and Finland classify themselves as neutral states and fulfill the above-states expectations to qualify for this title.11Scholarly Community Encyclopedia, ‘Neutral Country’ < https://encyclopedia.pub/entry/37541> accessed 28th March 2023. Hence, while the law of neutrality serves to protect neutral states from being adversely affected by conflict, it also imposed duties upon these states to conduct themselves in a specific manner with other belligerents.12ICRC, ‘The Law of Armed Conflict: Neutrality’ (International Committee of the Red Cross, June 2002) 8. The laws of neutrality also include directions more specific to the national territory of neutral states including their land, water and airspaces.13Ibid. Hence, Hague Convention (V) of 1910 and the Hague Convention (IV) of 1907 are concerned with the rights and duties of neutral powers and persons as well as belligerents in conflicts on land, while Hague Convention (XIII) of 1907 regulates the conduct of belligerents and neutrals in Naval Wars.14Hague Convention (IV), 1907; Hague Convention (V), 1910; Hague Convention (XIII), 1907.
The Swiss Experience with Neutrality
Switzerland offers a very interesting case study for the law of neutrality: on one hand, its foreign policy is aggressively neutral when it comes to conflict, but on the other hand it maintains a strong military force.15Evan Andrews, ‘Why is Switzerland a Neutral Country?’ (History, 12 July 2016) <https://www.history.com/news/why-is-switzerland-a-neutral-country> accessed 25th January 2023. It has also inspired controversy by continuing its trade ties with Nazi Germany during the Second World War.16Ibid. Despite remaining neutral for more than 500 years, Switzerland still holds a prominent position in international affairs.17Ibid. This is because the country abandoned its expansionist aims and focused primarily on self-preservation after its devastating defeat in the Battle of Marignano against the French in 1515.18Ibid. This was followed by a series of instances throughout history when Switzerland refused to take part in hostilities initiated by its European counterparts, like Napoleon.19Ibid.
This lasted until 1815 when the Congress of Vienna officially signed a declaration recognizing Switzerland’s ‘perpetual neutrality’ in the international community.20Ibid. The same was further recognized by the League of Nations in 1920 which decided to base its headquarters in the Swiss city of Geneva, which has acted as the home base for international organizations like the United Nations and a forum for negotiating international treaties since then.21Ibid. At the same time, Switzerland has maintained its unique position in international politics by promising a swift and prompt military response in case of any direct attack and invests heavily in building and maintaining a strong army intended to be used for defensive purposes.22Ibid.
In this manner, Switzerland has been able to comply with the Hague Conventions of 1907 as well as by following its main obligations, i.e., refraining from engaging in war and ensuring their own defense.23Hague Convention (V) 1907, articles 5, 10. The obligations further include not allowing belligerent states to use one’s national territory for aggressive purposes or supplying mercenary troops to them.24Ibid; FDFA, ‘Neutrality’ (4th April 2022, FDFA) < https://www.eda.admin.ch/eda/en/home/foreign-policy/international-law/neutrality.html> accessed 26th January 2023. However, Switzerland seemed to have violated this law in respect of the exportation of war materiel as it controversially maintained a trade for arms with Nazi Germany while also acting as a mediator between the Allies and the Axis Powers during the Second World War.25Alan Cowell, ‘New Records Show the Swiss Sold Arms Worth Millions to Nazis’ (29 May 1997, The New York Times) < https://www.nytimes.com/1997/05/29/world/new-records-show-the-swiss-sold-arms-worth-millions-to-nazis.html#:~:text=According%20to%20Mr.,The%20weapons%2C%20from%20companies%20Mr.> accessed 26th January 2023. The primary motivation for following this approach was self-preservation while also protecting its own trade-reliant economy.26OECD, ‘Switzerland: Trade and Investment Statistical Note’ (2017) < https://www.oecd.org/investment/SWITZERLAND-trade-investment-statistical-country-note.pdf> accessed 26th January 2023.
It is also important to note that historically, Switzerland had gained notoriety for being very skilled at war and had many battles on many sides. It was also a nation which had a very strategic position geopolitically as it bordered the Alps Mountains. Hence, it also adopted and maintained a policy of neutrality in order to avoid a long-time military alliance with any one side – a decision which was also welcomed by the European community as a whole.27Billie Cohen, ‘Why Switzerland Never Takes Sides’ (22nd July 2017, BBC Travel) < https://www.bbc.com/travel/article/20170717-the-country-that-cant-choose-a-side> accessed 26th January 2023. As a result, Switzerland has managed to avoid the pillage and destruction seen in other nations across Europe and has been able to hold on to its heritage and multiculturalism.28Ibid.
Switzerland’s experience with neutrality is a privileged one as it is not only a European state surrounded by strong neighbors, but also the base for important international organizations like the UN. Additionally, it opted for such a policy at a time when wars were primarily fought between different states, rather than between states and non-state actors.
Today, however, this is rarely the case as most wars or conflicts taking place around the world fall into the category of Non-international Armed Conflicts (NIACs) and are consequently not governed by the established law of neutrality which is more concerned with the relationships between neutral states and belligerent states.29Geneva Academy, ‘Today’s Armed Conflicts’ (Geneva Academy) <https://geneva-academy.ch/galleries/today-s-armed-conflicts> accessed 26th February 2023.
How the Law of Neutrality Operates in Non-International Armed Conflicts
One very prominent example of a NIAC is found in Syria which has been combatting multiple and overlapping conflicts within its national territory, most famously against the Islamic State (IS). Foreign armed forces are also involved in fighting against non-state groups.30RULAC, ‘Non-international armed conflicts in Syria’ (29 September 2022, Geneva Academy) < https://www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-syria> accessed 3rd February 2023. Hence, it is important to consider how the Law of neutrality may be relevant in such circumstances as it has traditionally been structured to tackle international conflicts. However, as the nature of conflicts today is largely as NIAC’s, is it still relevant? How does it serve to protect such nation-states from unwelcome foreign involvement? More importantly, how does it protect civilians and professionals within such territories who do not wish to take active part in the hostilities, yet still find themselves targeted?
The Syrian Government has been engrossed in several NIACs, all occurring at the same time such as those against the Syrian National Army (previously the Free Syrian Army), the Islamic State group, the Syrian Democratic Forces, Hay’at Tahrir al-Sham as well as other rebels. In addition to this, there are also two parallel NIAC’s occurring between the US-led coalition and groups like Islamic State and Al-Qaeda.31RULAC, ‘Non-international armed conflicts in Syria’ (RULAC, 29 September 2022) < https://www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-syria#:~:text=The%20Syrian%20Government%20and%20its,groups%20operating%20in%20the%20territory.> accessed 8th February 2023. This is particularly interesting as the foreign involvement in Syria against terrorist groups was initiated without the Syrian government’s consent.32Ibid. Traditionally, the laws of neutrality impose many restrictions on belligerent states from engaging with neutral states which automatically limits foreign activities within their national territories. Hence, this raises an important question about whether states experiencing NIACs on their territory without their consent for foreign intervention can be categorized as neutrals or belligerents.
NIACs are mentioned in the four Geneva Conventions of 194933ICRC, ‘The Geneva Conventions of 1949 and their Additional Protocols’ (ICRC, 29 October 2010) < https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva-conventions.htm> accessed 8th February 2023. through the inclusion of a common Article 3, which mandates the protection of persons taking an active part in hostilities, the wounded, sick and shipwrecked in NIACs specifically.34Ibid; Common Article 3 Additionally, in 1977, Additional Protocol II was codified which dealt particularly with victims of NIACs.35Ibid; Protocol Additional to the Geneva Convention of 12 August 1949, And Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977. The preamble to this document emphasizes upon the application of human rights principles to victims caught in conflicts of this nature and also refers to the application of the humanitarian principles enshrined in Article 3 of the Geneva Conventions.36Ibid, Preamble.
The above is particularly important as the Geneva Conventions and their Additional Protocols are the first instance in international law where concepts of individual neutrality in a NIAC can be traced. The rules are intended to limit the losses suffered during war and actively seek to protect people who do not partake in the conflict, including civilians, medics and aid workers as well as those who are no longer capable of fighting.37Ibid. As a result, the Geneva Conventions and their Additional Protocols are the core of International Humanitarian Law and also include methods to enforce the rules contained within them to preserve individual neutrality.38Ibid. Hence, these Conventions codify principles and protections to preserve individual neutrality while taking into account the unique circumstances presented by NIACs which may spill over or cause international concern. However, it is important to remember that IHL will continue to apply even against non-state actors in such conflicts.39n (26). Additionally, non-state actors are also brought under the ambit of international law if they have begun to exercise control over some areas.40Ibid.
As it stands though, the law of neutrality does not apply in the same way to non-international armed conflicts, conceived as it was to deal with inter-state warfare. However, the unique circumstances of NIACs which occur on a state’s territory while not engaging that state’s armed forces will perhaps require clarification in any future drafting of the law of neutrality. The law as it was originally drafted does not envisage such armed conflicts and their troubled classifications as both NIACs and IACs.
In conclusion, while the nature of most conflicts around the world may have changed substantially from the first time the laws of neutrality were envisioned, they are still important and relevant when considered with the laws of war. That is because the world has become more interconnected and numerous states are bound to be involved in one manner or another with any modern-day conflict. Hence, the protections in place by the law of neutrality are valuable even today. Additionally, as noted earlier, complex classifications of conflicts in which there are both IACs and NIAC elements are tricky under the law of neutrality. On a more practical level, the enforcement of the law of neutrality remains a challenge in such conflicts and may require further clarification.41Tess Bridgeman, ‘The Law of Neutrality and the Conflict with Al Qaeda’ (2010) NYU Law Review 85 1186.
The opinions expressed in the articles on the Diplomacy, Law & Policy (DLP) Forum are those of the authors. They do not purport to reflect the opinions or views of the DLP Forum, its editorial team, or its affiliated organizations. Moreover, the articles are based upon information the authors consider reliable, but neither the DLP Forum nor its affiliates warrant its completeness or accuracy, and it should not be relied upon as such.
The DLP Forum hereby disclaims any and all liability to any party for any direct, indirect, implied, punitive, special, incidental or other consequential damages arising directly or indirectly from any use of its content, which is provided as is, and without warranties.
The articles may contain links to other websites or content belonging to or originating from third parties or links to websites and features in banners or other advertising. Such external links are not investigated, monitored, or checked for accuracy, adequacy, validity, reliability, availability or completeness by us and we do not warrant, endorse, guarantee, or assume responsibility for the accuracy or reliability of this information.