The Changing Nature of Neutrality
The law of neutrality governs the relationship between states engaged in hostilities in an armed conflict (belligerent states) and those not participating in hostilities (neutral states). It requires neutral States to maintain peaceful relations with both belligerent States, allowing them to continue diplomatic and economic relations with them both (with the exception of providing military assistance, such as through trading weapons).
The law of neutrality is contained in Hague Conventions V1Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907. (‘Hague Convention V’) (neutrality on land) and XIII2Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War. The Hague, 18 October 1907. (‘Hague Convention XIII’) (neutrality in maritime conflict), as well as in customary international humanitarian law. The law of neutrality applies between States where belligerent States must respect the State that is not engaged in hostilities of the concerned armed conflict. However, one must look at the various ways in which the law of neutrality is evolving as the nature of armed conflict has changed since the early 20th century.
Historically, an armed conflict would begin when one State made a declaration of war against another State. Consequently, this would have been followed by a declaration by a neutral State claiming its neutrality. This may be a statement of permanent neutrality, as has been issued by Switzerland.3Switzerland Federal Council ‘Clarity and guidance on neutrality policy: Federal Council report in response to Postulate 22.3385 put forward by the Council of States Foreign Affairs Committee (FAC-S), 11.04.2022’ (Bern, 26 October 2022) However, a declaration of neutrality is not considered necessary, but may be discerned through a State’s overall non-interventionist foreign policy, such as in the case of Oman,4Austin Bodetti, ‘Oman Strives for Neutrality in the Middle East | YaleGlobal Online’ (7 January 2020) <https://archive-yaleglobal.yale.edu/content/oman-strives-neutrality-middle-east> accessed 30 March 2023 whereby diplomatic relations are maintained with all States regardless of their belligerent status.
Neutrality revolves around the inviolability of a neutral State’s territory.5Hague Convention V, Art. 1 Thus, a belligerent State may not use the territory of a neutral State for any means involving the conflict, such as allowing troops to travel through the neutral State’s territory.6Ibid, Art. 2 This also extends to a neutral State’s maritime territory as well as its airspace. Furthermore, belligerent States must also extend protection to citizens of neutral States residing in their territory.7Hague Convention V, Art. 16
However, there are certain obligations on neutral States under international humanitarian law. A neutral State must be impartial; thus, it must treat both belligerent parties equally when exercising its duties under IHL.8Ibid, Art. 9 It is equally incumbent on the neutral State to not allow the use of its territory by belligerent States once the neutral State has declared neutrality.9Ibid, Art. 5 If a neutral State finds combatants on its territory, the neutral State must intern them, and must supply them with adequate food, clothing and relief.10Ibid, Arts. 11-15 Consequently, they must return the interned combatants to their home State once the conflict ends.
Neutrality is violated when a neutral state does not observe its duties. This can include allowing belligerent States to enter its territory, or providing military assistance and equipment to either (or both) of the belligerent States. In such a situation, said State loses its neutral status and is recognised as a belligerent itself.11Hague Convention XIII, Art. 1
The Evolving Nature of Conflict and Challenges to Neutrality
The nature of conflict has evolved to undermine the existing conception of the law of neutrality. This can be analysed in light of the law on cyberspace and the law of non-international armed conflicts.
The use of cyberspace in conflict poses a major challenge to the largely territory-centric nature of the law of neutrality. As cyberspace becomes a domain for armed conflict, there is a need for greater observance of neutrality, particularly when it comes to cyber infrastructure of neutral States, or neutral cyber infrastructure generally, such as the Internet. Regardless of the physical location of infrastructure, such as computers, servers or other cyber technology, the intangible nature of cyberspace and its components, such as data and communications, means that the territorial focus of the law of neutrality, as espoused in the Hague Conventions, is not necessarily applicable in its original form.
This has an impact on the rights and obligations of neutral States in instances where cyber infrastructure is either attacked or used for an attack. For example, in order to prevent the attribution of a cyber attack to a belligerent State, that State may route malicious cyber activity through certain servers of a neutral State before transmitting it to the other belligerent State. Under Article 8 of Hague Convention V, a neutral State is not obliged to ‘forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.’ As a neutral State, allowing the belligerent State to do so would violate the law of neutrality, as they are essentially favouring another belligerent party over the one seeking to use their communications infrastructure.
Furthermore, such attacks may also originate from multiple States, or may originate from private actors that do not have a state affiliation. In some situations, attacks targeted towards a particular State may have cross-border effects, having adverse effects on the infrastructure of neutral States. The lack of a clear demarcation of rights and responsibilities for neutral States in cyberspace results in a lacuna for protection, which cannot be sufficiently covered by customary IHL. Thus, it is necessary that the law of neutrality is adapted into a set of rules and regulations that impose detailed obligations of neutrality on both belligerent States and neutral States.
Non-international armed conflicts
Similarly, the law of neutrality focuses on relationships between states. The Hague Conventions, drafted in the early 20th century, were designed to accommodate the realities of armed conflict of the time, which were largely international armed conflicts (IACs). However, the 21st century is witnessing more non-international armed conflicts (NIACs), which has warranted a critical reconsideration of various IHL rules. Neutral conduct in NIACs is relatively easier to establish. Because a NIAC usually involves a State and a non-State armed group (NSAG), it is easier for other States to remain neutral by simply respecting the State’s sovereignty.
However, there are multiple grey areas in the law of NIACs. For example, at what point does an internal political insurgency amount to a recognised NIAC? According to the International Criminal Tribunal for the former Yugoslavia (ICTY), a NIAC ‘exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.’12Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999, para 70 According to this definition, if the threshold of ‘protracted armed violence’ is not met, an insurgency cannot be classified as a NIAC, and therefore would not be governed under the rules of international humanitarian law. It is therefore unclear whether this permits non-party States to provide support to the State in combating an insurgency while still maintaining neutrality.
This grey area is further complicated if support is provided to an NSAG. While providing military support constitutes a clear intervention and thus an abrogation of neutrality, the provision of economic resources and other non-military support requires further analysis on the basis of attribution.13Dapo Akande, ‘Classification of Armed Conflicts’, in Akande and Saul (eds), The Oxford Guide to International Humanitarian Law (2020) 29, 47 It would require an analysis of whether the NSAG is in ‘overall control’ of the functions of the government to attribute those acts to a de facto State, as well as the impact of the resources on the military effort.14Ibid There are several further complications in the matter: for example, if a foreign State is providing financial support and humanitarian aid which is misdirected towards acquiring military resources, is the foreign State obliged to stop sending such support due to its contributions effectively being used for a belligerent party’s military advantage? These various scenarios complicate the application of existing models of neutrality as they were designed for IACs to NIACs.
This particular quagmire reflects a niche of armed conflicts that have particularly been seen in the rise of international counterterrorism. In the wave of global counterterrorism, NIACs also involve the intervention of a State in the territory of another State, without the latter’s consent, to fight an NSAG posing a global terrorist threat. In such a situation, is the latter State considered a neutral party, and thereby obliged to extend medical assistance and internment under the law of neutrality?15Hague Convention V, Chapter II It must be understood that once a State consents to the presence of another belligerent State in its territory, it loses its neutral status and becomes a belligerent party as well as it indicates support for a particular belligerent party and the conflict transforms into an IAC.16Akande, 48 However, in this situation, it is unclear whether consent for a foreign state’s intervention in fighting an insurgency must be an explicit declaration of consent or whether implied consent (or silence on the matter) can also constitute an abrogation of neutrality. Alternatively, would a State responsible for hosting a terrorist NSAG or being unable or unwilling to dismantle such a threat be considered a belligerent party? This also complicates relations with other States and whether they can engage in trade with the concerned territorial State.
Nonetheless, the law of neutrality could be used to determine the role and responsibilities of the territorial State towards belligerent parties, such as by providing medical aid and relief to both parties without distinction. This would also oblige the territorial State to not become militarily involved on either party’s side and remain non-interventionist. It would also allow for international aid for affected civilians and for the State in the event of infrastructural loss in conflict. However, the technicalities of what constitutes ‘intervention’ need to be stipulated: would the territorial State’s implied consent to the presence of a belligerent State be considered a violation of their neutrality? Thus, there are several complicating factors to the law of neutrality if it is to remain relevant in contemporary armed conflict.
Such legal quagmires could be determined through a demarcation of the duties of a neutral territorial State in a treaty spearheaded by the ICRC. While the law of neutrality is an important area of IHL, it needs to be adapted to account for modern forms of conflict to continue to be applicable, and to allow affected States to seek legal recourse in the event of a violation of these rules.
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Raas Nabeel is a Research Associate at the Research Society of International Law. He completed his BA-LLB (Honours) from LUMS, graduating with High Distinction in 2021, and completed his LLM from the University of Cambridge (Downing College) in 2022. He has been a Conference Assistant at the 2022 Cambridge International Law Journal Conference, as well as having been a part of the LUMS Law Journal Editorial Committee. His areas of interests include global governance, international humanitarian law and the law of armed conflict, international human rights law, environmental law, and intellectual property law.