Neutrality in Modern Armed Conflicts: A Surrey of the Developing Law

• Author: by Lieutenant Colonel Walter L. Williams, Jr.
• Pages: 01

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do not necesianl? repre~eni rhe W U L oEThe Judge Adrocart General's School the Depar!ment oi the Army. 01 ani o t t h garernmental agency

Yilirar) Lau and tbe Lam of War, rift. hificei at tie Palaii de Justice, Brusfela. Belglim The mailing addreri for both the R i i * i and the Society IS -4.S.B L Semmarre de Droit penal millfaire. Pslais de Justice, 1000 Bwxellei. Belgium

For sexera1 year? the United Stater rorrergondent for the Society ai Lieutenant Colonel James A Burger. deputi afaffpdge adioeate for the Bft Iniantry Dnision. Bad Kreuznach. Germany, 1980 to piesent. He was aiiigned la the faculty of The Judge Adroeate Generari Sc.?aol. Charlotreriille. Virginia irom 1975 to 1979.

hate imposed oii sfotes 0)s obligatio,, to toke sides agairisi

irai c,f they so desire I n reaching this eo,telu- scholnis Readers of lite .lfiiitary Lnr Retiezc roere infro-diicsd io this malhad a d Its soecialired ioeabdaru a i , Professor Walker's book ve~iez at 89 LIil L Rei' 131 ficinter I9791

I. INTRODUCTION

The thesis of this article is that, in the context of rapidly changing technological, political and legal conditions in which modern armed conflictr have occurred, the traditional rules of neutralit? have in practice altered substantially However, any a prmn eonelusion that the entire corpus of traditional neutrality law no longer operates might well be erroneous. A careful, detailed analysis of the subject is required. This article assuredly does not present the necessary definitive analysis of the many legal issues involved. Instead, it offers an impressionistic exploratory inquiry into certain major issues, seeking to encourage the broad range of research re-quired to develop definitive analysis useful both for governmental advisors and legal scholars. The observational perspective of the writer is that of a citizen of the world cornmunit) recommending to decision-makers policies reflecting community aspirations and ap-propriate outcomes of legal deciions calculated to implement those policies more effectively.

any particular instance of armed conflict-an analysis that is coil-testid, viewing that conflict within the context of the existing global process of power in which states interact by variou8 strategies to secure and maintain effective paner pasition8 in their relations. Next comes trend analysis of the course of decision on legal elaims coneerning neutrality--an analysis that, a8 regards past trends, properly considers the present and future effects of new conditions pertinent to the conduct af modern armed conflicts. Finally, there is need for policy-onented a,iaiyszs of trends of legal decision--an appraisal of trends m light of advoeated world community policies seeking the maximum international peace and security reasonably attamable in this troubled world.

Only through application of such methodolog? may one expect to determine accurately present development8 in the rules of neutrality, to project those developments into the future, and to appraise the consequences of those developments. The traditional approach to neutrality was to create a model, the "statu" of neutrality. That model subsumed, a priori, both an hypothesized view of uniform attitude and conduct of all neutrals in all international conflict situations, and a set of contentions as to legal outcomes of decision on claims pertaining to neutrality. In turn, as this model proved unsatisfactory when imposed upon the rich diversity of real-ity, officials and scholars created still other models, represented by diverse terms, such as "differential neutrality" and "nnnbelligerency", to describe gradations of attitude and conduct and contentions as to resulting changes in legal nutcome.l

"# A ContrmpororĈonerplion, 82 Hague Recued des Cours 131 (38111.*For ais~ussinn of one or more of these terms see 2 Oaaenheim iritrmofiaiiol

The conflicting views3 concerning the references of these terms, both factual and legal. obviousii cast doubt on the xalue of the terms for policy and legal analysis. Also, legal literature tends to use the terms mterehangeably.' Yet, this babel of diverse, ambigu- OUE terminology continue8 in the legal literature. Attempting to work within the doctrinal confines of this diverse terminology 1s arguabl? futile. Neither the fluid reality of state attitude and conduct, nor the multiple outcomes of legal decision on raried claims as to a neutral's rights antl duties in various conflict situations. can accuratel) be reflected in some frozen model, or aeries of models. represented by such terms. State officials may use such terms as crude indicators of attitude and conduct, nith at least implied asrertmns of legality of their state's posture Hawerer, the terminology appears u~eless as a departure point for legal analysis. In place of that approach, a e recommend the methodology set forth aboxe

11. THE PROCESS OF ARMED CONFLICT Although, in theory, a future armed conflict could occur in ivhieh all states participate directly b) using military forces, the possibility 1s exceedingly remote, and \i.ould be a conflict in which the lam of neutralit) are irrelevant. Thus, for this discussion, it 1s assumed that in any armed conflict certain states, varying in number, will wsh not to participate by employing military forces. Indeed, envisioning the normal conflict of the reasonably forseeable future to be quite limited in the number of combatant states, the author suggests that frequently the ocerivhelming majority of atates w11 wish to be "neutral."

This naner used the term "neutral" merelr to describe a -tare ~.

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that is not an active fightmg participant in the conflict. Likewise. here, the term "belligerent" merely describes a 8tate that is em-ploying its military forces in the conflict State practice antl scho-

n note 2. at 619 Castren D 'pro note 2, ~t 460-51, Stone.

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larly literature have used these terms to refer to nidely varied conduct and attitudes, as veil as subsuming varied legal outcomes. In view of such confusing references, ne might better depart from the use of such terms as "neutral" and ''belligerent," as n e increasingly haw departed from use of the term "war." These terms unfortunateiy continue to carry cannatations bath of law and fact existing in an earlier era, as well as rnentieth century encrustations of eompetitive claims of Ian and policy made by state officials and scho-lars. As officials and scholars have moved to substitute the more factually descriptive term "armed conflicr" for "war," n e might well begin to use the terms "combatant" and "noncombatant state," or "fighting" and "nonfighting state,'' to reduce the risk of confusing description of conduct with legal outcomes of decision regarding permissible acts of a State as described.

To return to our discussion of the process of armed conflict, one should note that the nature of the legal elaims as to the rights and duties of a neutral and of any of the belligerents will \my, depending upon the particuiar conflict In large part, the appropriate appiicarion of law and policy as to those claims likewise varies. Thus, in all instances, one must analyze the factual features of the particular conflict process out of which arise claims pertaining to the law of neutrality. We suggest the following features of the conflict process as a check lxt for use in comprehensively appraising relevant factors:

a. the 4ative power positions of the opposing sides in the con-flier, and the relative power position of each belligerent side and of each neutral (or association of neutrals);

b the nature of past relationships of each belligerent and each neutral:

c. the nature of the objectives for which each belligerent is employing military forces;

d. the geoFaphical extent of the conflict, bath in terms of the use of military forces and of the consequences (political, economic, etc.) resulting from the conflict;

e. the duration af the conflict:

f the "crisis" lerei-the level of expectation that a belligerent or neutral will suffeer imminent, serious loas from the conflict unless it take8 avoidance action; and

g. the nature of the military iiesponr) empio)ed, wth emphasis on its range, accuracy, area of impact, and specialized destructite capabilities. In any particular conflict situation any or ail of these features map play an important role in the attitude and conduct of each belligerent and of each neutral in their relations inter ~i.

in the

tgper of legal claims that either will raise, and in the outcome of legal decision on those claims.

Any particular armed conflict occurs within the broader context of the global power process in which stated seek to increase 07 mantain positions of pouer through the use of diplomatic, ideological, economic and military strategies. Contextual conditions that ma) influence conduct of belligerents and neutral&, the nature of claim? about this conduct, and the outcomes of decision on those claims Include:

a. the continued, albeit somewhat muted global competition for power betueen the United States and the Soviet Union, noa be-come a triangular competition (in some regions) with inclusion of the People's Republic of China:

b. the relationship of each belligerent and each neutral with other neutrals, raising questions of conflicting obligations and of the po. tential for widened participation in the conflict or the triggering of new but related conflicts. and

e. changing perspectives and practices in the conduct of armed conflict, e.g., mass mobilization of human and physical resaurees, elimination of the re~our-cebase of the opponent (economic warfare), and rapidly developing militar) technolog) Increasingly empharizing indirect, less discriminate modes of broad area destruction of life and property

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