9.

1 Rules Governing Neutrality

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..."
Some commentators have argued that neutral status ceases to exist under the obligations
incurred under the United Nations 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) and 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).
Types Of Neutrality
Lauterpacht lists various types of neutrality:

Perpetual neutrality: The status of states permanently neutralized by special treaty.

General & Partial neutrality: General neutrality covers the territory of an entire State, but
circumstances may exist in which only a part of its territory is neutral, for example, by treaty.

Voluntary & Conventional neutrality: In some instances a state is bound by treaty to remain
neutral; in all others the status is purely voluntary.

Armed neutrality: The status of a state which takes military measures to protect its neutral status.

Benevolent neutrality: An obsolete term for less than neutral behavior.

Absolute vs. Qualified neutrality: Qualified neutrality implied the giving of some kind of aid to
one belligerent.

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:
"Dutch and Belgian air bases must be occupied.... Declarations of neutrality must
be ignored."
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:
"We have an Achilles heel: The Ruhr. The progress of the war depends on the
possession of the Ruhr. If England and France push through Belgium and Holland
into the Ruhr, we shall be in the greatest danger.... Certainly England and France
will assume the offensive against Germany when they are armed. England and
France have means of pressure to bring Belgium and Holland to request English
and French help. In Belgium and Holland the sympathies are all for France and
England.... If the French Army marches into Belgium in order to attack us, it will be
too late for us. We must anticipate them.... We shall sow the English coast with
mines which cannot be cleared. This mine warfare with the Luftwaffe demands a
different starting point. England cannot live without its imports. We can feed
ourselves. The permanent sowing of mines on the English coasts will bring
England to her knees. However, this can only occur if we have occupied Belgium
and Holland . . . My decision is unchangeable; I shall attack France and England at
the most favourable and quickest moment. Breach of the neutrality of Belgium and
Holland is meaningless. No one will question that when we have won. We shall not
bring about the breach of neutrality as idiotically as it was in 1914. If we do not
break the neutrality, then England and France will. Without attack, the war is not to
be ended victoriously."
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 their 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?
9.2 The Role Of Neutrals

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 (1958).

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).
Questions About The Role Of Neutrals
9.2.1 Did adoption of the United Nations Charter eliminate the need 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:

the Camp David Accords between Israel and Egypt

the Dayton Accords regarding Bosnia
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?
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?
9.3 Trade And Passage By Neutrals
Review the history re the U.S. position on the British blockade of Germany in World War One as
the United States turned towards intervention. Now look at the U.S. relation to neutral Vichy
France in the Second World War.
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?
9.4 The Effects 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 11
th
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:
"Any violation of Belgiums neutrality is bound to drive that country into the arms of France. France
and Belgium will then have one common foe: Germany, which, for the second time within 25 years,
assaults neutral Belgium! Germany, whose government solemnly vouched for and promised the
preservation of and respect for this neutrality only a few weeks ago! I have already elaborated
under paragraph 1 on the fact that in such a case it is highly probable that France will immediately
rush strong forces to the aid of the Belgians, which means that there will be heavy fighting already
on Belgian soil."
"If Germany, by forcing the issue, should violate the neutrality of Holland, Belgium, and
Luxemburg, a neutrality which has been solemnly recognized and vouched for by the German
Government, this action will necessarily cause even those neutral States to reverse their declared
policy towards the Reich, which up till now showed some measure of sympathy for the German
cause. The Reich, which cannot count on Italys or Russias military assistance, will become
increasingly isolated also economically. Especially North America, whose population easily falls for
such propaganda slogans, will become more inclined to submit to Englands and Frances
influence."

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.
Questions About The Effect Of War On Neutrals
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?
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 than an erroneous overflight by aircraft
which are forced down and interned?