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Chapter Nine Neutrality
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I shall treat neutrality as equivalent to a declaration of war against me. Gustavus Adolphus. Proclamation during the Thirty Years War. 1616-1648 |
Neutrality has a long history in international law. Proclamations of Neutrality were a means by which, if effective, nonbelligerent nations could avoid at least some of the financial and political burdens of warfare. Thus, in 1914, President Wilson proclaimed that "the United States must be neutral in fact, as well as in name..." Note guerilla leader and international lawyer John Mosby's comments:
| When they [England and France] proclaimed their neutrality and accorded us belligerent rights and the hospitality of their ports to Confederate cruisers, they just as much recognized the independence of the South as if they had officially received our ministers. The human mind cannot conceive of belligerent rights except as attached to a supreme independent power. |
John S. Mosby, Mosby's Memoirs at p.58, Barnes & Noble (2006).
Some commentators have argued that neutral status ceases to exist under the obligations incurred under the Charter by all members of the United Nations. See, Whiteman, 11 Digest Of International Law at pp. 144 et seq. They base that argument on Articles 2(5), 25 and the enforcement action provisions of Chapter VII of the Charter.
Article 2(5) provides:
All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
Article 25 requires that:
The Members of the United Nations
agree to accept and carry out the decisions of the Security Council in
accordance with the present Charter.
| ...the collective systems of the League of Nations and the United Nations allow for contingencies in which member States--let alone non-member States--remain free to decide for themselves on their attitude to armed conflict. Moreover, in armed conflicts inside a country, third States, by their recognition of revolutionaries as belligerents, may still become obligated to apply the law of neutrality. Finally, there are States, such as Switzerland, which even now are under an international obligation to remain permanently neutral and, more recently, Austria has chosen to base her own foreign policy on the principle of neutrality. Thus, the law of neutrality appears to be far from dated. |
Georg Schwarzenberger, A Manual of International Law, at 177 (6th ed.
1976).
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Types Of Neutrality Lauterpacht lists various types of neutrality:
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Hersch Lauterpacht, Oppenheim's International Law, Vol. 2. pp.661-663 (7th Ed.,
1952)
| ...Although they had not declared war against us and were, therefore, from the point of view of international law, still in a state of neutrality, the United States had begun, very shortly after the start of the war, to give Britain an ever-increasing measure of support and assistance. American naval forces had been actively engaged in helping the British. The whole vast resources of American armament production and industry had been placed at the disposal of the opponents of the Axis Powers.... The American attitude, which was completely contrary to every tenet of international law, was of the utmost military, material and moral benefit to Britain... |
Karl Doenitz, Memoirs, Ten Years And Twenty Days, DaCapo Press
(Annapolis, 1997) at 183.
In May of
1939. when Hitler made his irrevocable decision to attack Poland, and
foresaw the possibility at least of a war with England and France in
-consequence, he told his military commanders:
On August 22nd in the same year, he told his military commanders that England and France, in his opinion, would not "violate the neutrality of these countries." At the same time he assured Belgium and Holland and Luxemburg that he would respect their neutrality; and on the 6th October, 1939, after the Polish campaign, he repeated this assurance. On the 7th October General von Brauchitsch directed Army Group B to prepare "for the immediate invasion of Dutch and Belgian territory, if the political situation so demands." In a series of orders, which were signed by the defendants Keitel and Jodl, the attack was fixed for the 10th November, 1939, but it was postponed from time to time until May of 1940 on account of weather conditions and transport problems. At the conference on the 23rd November, 1939, Hitler said:
On the 10th May, 1940, the German forces invaded the Netherlands, Belgium and Luxemburg. On the same day the German Ambassadors handed to the Netherlands and Belgian Governments a memorandum alleging that the British and French armies, with the consent of Belgium and Holland, were planning to march through those countries to attack the Ruhr, and justifying the invasion on these grounds. |
Opinion and Judgment of the Nuremburg Tribunal, The Common Plan or Conspiracy and Aggressive War.
But, note the German view in 1940:
| When Hitler decided to
occupy Denmark and Norway he did not know of the draft resolution passed
by the Allied Supreme Council on March 28, 1940. This resolution dealt
with the laying of minefields along the coasts of Norway, Denmark and
Sweden, in spite of the fact that this would violate the neutrality of
those countries. Had Hitler known of this, it would have saved him a lot
of rationalizing to justify their occupation.
But we only received the full text of the Allied resolution several days later, when one of my agents got access to Paul Reynaud's private switchboard. This version of the resolution also dealt with the bombing of Russian oilfields in the Caucasus and measures to prevent us from receiving Rumanian oil. |
Walter Schellenberg, The Labyrinth: The Memoirs Of Hitler's Secret
Service Chief at 101. Harper, (New York,1956).
For a nice discussion of the background of neutrality and its application to Switzerland in WWII, see, Deltev Vagts, Switzerland, International Law And World War II, 91 American Journal of International Law No.3 (1997).
| Questions About Rules Governing Neutrality |
| 9.1.1 Article IV of Hague V forbids the formation and training of hostile expeditions on neutral territory. Was the training of anti-Castro Cuban Rebels by the U.S. prior to the Bay of Pigs invasion, a violation of Article IV? Would it make any difference if the actual combat training and arming of the troops was conducted in a third country after they were recruited in the United States? |
| 9.1.2 The Nicaraguan Contras were funded by the United States but recruited and trained in Nicaragua or third countries. Does that fact create a legal distinction between the Contras and the anti-Castro Cubans? |
| 9.1.3 Was the creation of the American Volunteer Group (the "Flying Tigers") prior to American entry into World War Two, a violation of Hague V? Is Doenitz legally correct in his complaint that the United states had violated international law by aiding the UK? What is the contrary argument? What about Chinese "volunteers" who entered the Korean War in entire divisions or Soviet "volunteer" pilots in North Vietnam or Syria. Was this a breach of neutrality? |
| 9.1.4 A neutral state is prohibited from providing war munitions or loans but private companies and individuals can do so. Under the "Lend/Lease" doctrine in 1940, the United States engaged in "active neutrality." It provided arms including warships to Great Britain, and US military volunteers served in British and Commonwealth units. Was this conduct consistent with neutrality? |
| 9.1.5 What about Swiss commercial transactions and banking services or Swedish provision of war materials to Germany? Do current revelations show violations of neutrality? |
| 9.1.6 Under neutrality rules, a neutral must intern hostile troops which cross border. During the Second World War the Swedish Government permitted Germany to transship its troops across Swedish territory to carry on the war against the Soviet Union. By the time the program ended in August, 1943, 2,140,000 German soldiers had transited Swedish rail lines. Was this a violation of Hague V? If so, why did Sweden permit Germany to ship those troops across its neutral territory? Should Sweden have been required to intern them? If so, why should escaped Allied POWs who reach Swedish territory be permitted to remain at liberty under the terms of the Hague Convention? |
| 9.1.7 After the United States invaded Iraq in 2003, a number of NATO allies, including France and Germany condemned the invasion. What was the legal status of those countries in relation to the competing powers? Were they neutrals? If so, what were their obligations? Were those obligations impacted by the terms of the NATO treaty? |
Many commentators now argue that the concepts of neutrals and
neutrality are obsolete. Under a highly technical reading, that may be correct,
since the Charter assumes global jurisdiction. In a sense, however, neutrality
has continued in force through the Cold War (the "Nonaligned Nations"
or "Third World") and in the use of good offices by western powers in
attempts to settle various conflicts, either regional or internal to states. In
those attempts, very much in the fore in the 1990's (e.g. the
Israeli/Palestinian conflict and the the Oslo Accords), the arbitrating powers
often fill much of the role occupied by neutrals prior to the Post World War II
era.
| As there is no diplomatic intercourse between the contending States during war, complaints of breaches of the laws of war are sent to the enemy ...through a neutral State which lends its good offices. Complaints may also be lodged with neutral States, with or without a view to soliciting their good offices, mediation or intervention, for the purpose of making the enemy observe the laws of war. |
British Manual of Military Law, Part III §622 p.174.
Following the June 22, 1941 invasion of the U.S.S.R. by
Germany, the Germans demanded that Sweden permit the transit of a German
infantry division from Norway to Finland. The Swedish government capitulated to
German demands and on June 26th the German 163rd Infantry Division was permitted
to entrain across Sweden. Following Allied protests, the Swedish Foreign
Ministry explained the conduct as due to a special relationship with Finland:
| It does not mean that we have chosen sides in the war between Germany and Great Britain. It means only that we have taken Finland's side in this special instance. |
| Neutrality does not demand that nations not participating in an armed conflict should be indifferent to the issues of the belligerents. The sympathies of neutrals may well lie entirely with one side, and a neutral does not violate his duties as long as he does not commit any unneutral acts that might aid the side he favors. |
Burdick H. Brittin, International Law for Seagoing Officers at 256 (Naval
Institute Press, 4th Ed. 1981).
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Questions About The Role Of Neutrals |
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9.2.1 Did adoption of the United Nations Charter eliminate the need for for neutral participation in regulating and ending armed conflicts? Since 1945, have there been situations where the good offices of third party States have been more effective than the activities of the Security Council in ending hostilities? Consider:
Did the end of the Cold War, and the not uncommon deadlock in the Security Council which accompanied the East-West conflict, eliminate the usefulness of neutral participation? |
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| 9.2.2 In a world where every State was a member of the United Nations, who would provide a protecting power for U.N. troops in a Security Council sanctioned action? Would there be a need for one if world opinion was all on one side? | ||||
| 9.2.3 Is there any role here for Non-Governmental Organizations (NGO's)? Can an NGO effectively function as a neutral or a protecting power or both? |
Review the history re the U.S. position on the British blockade of Germany in WWI as the United States turned towards intervention.
| In February, 1942 the United
States Government informed the French Government at Vichy that
information had been received "that the French Government may have
entered into some arrangement with the Axis Powers providing for the use
of French ships for the transportation of supplies and possibly war
material to Tunis for the use of enemy forces in Libya." The United
States stated its position as follows:
"If...France now proceeds to enter into agreements for the shipment of war materials or forwards supplies to the enemies of the United Nations, France, by its own action, will have turned its back upon the uninterrupted friendly relationship with the United States and will place itself in the category of nations which are directly assisting the Axis Powers who have opened warfare with the United States. There can be no possible justification under the terms of the Armistice for shipment of war materials or other direct aid to Axis nations..." |
Whiteman, 11 Digest of International Law 181 (1968).
| Questions About Trade And Passage By Neutrals |
| 9.3.1 Examine the course of Swiss trade in essential war materials with the Allies and the Axis as it relates to the increasing certainty of eventual Allied victory. Is a neutral justified in trading with an aggressor in order to forestall an attack? |
| Questions About The Effect Of War On Neutrals |
| The next document ... is
Hitler's conference of the 23rd of May [1940]. Therefore I need only
very shortly remind the Tribunal of two passages. First of all, on the
first page it is interesting to see who was present: The Fuehrer,
Goering, Admiral Raeder, Brauchitsch, Colonel General Keitel, and
various others ... We know the purpose of the conference was an analysis
of the situation. ...
"What will this struggle be like?" And then these words: "The Dutch and Belgian air bases must be occupied by armed force. Declarations of neutrality must be ignored." |
Nuremberg Trial Proceedings, Vol. 3, p. 295, 7 December, 1945
In 1939, Hitler advised
certain of the high military leaders of his decision to attack France by
violating the neutrality of the Low Countries. On 11th
October, 1939, the accused, von Leeb, wrote to his Commander-in-Chief,
von Brauchitsch, inclosing a memorandum prepared by him advising against
this course of action. In it he argued that the invasion would develop
into a long-drawn-out trench warfare, and then continued:
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The German High Command Trial, Trial
of Wilhelm Von Leeb and Thirteen Others, United States Military Tribunal,
Nuremberg, p.13, 30 December, 1947 - 28 October, 1948.
| 9.4.1 Can a member of the United Nations be neutral if the Security Council has directed the membership to take action to restore peace and security? |
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9.4.2 What are the legal implications, in relation to neutrals, of use by combatant States of weapons of mass destruction ? If airborne radiation from a nuclear weapon drifts on to neutral territory is Hague V violated? How is that different that an erroneous overflight by aircraft which are forced down and interned? |