Ukraine Symposium – Is the Law of Neutrality Dead?

The 2022 Russia-Ukraine conflict has rekindled the debate about the validity of qualified neutrality during an international armed conflict. The concept is sometimes also referred to as benevolent neutrality. Since Russia’s invasion this year, nearly 40 nations, including the United States, have provided Ukraine with billions of dollars in lethal military aid, including weapons and ammunition. Both the European Union (see here, here, and here) and the United States (see here and here) have also imposed economic sanctions on Russia and Russian entities in response to the invasion. These arms transfers and sanctions, which are clearly inconsistent with the traditional law of neutrality, have been justified by several scholars and governments under the concept of qualified neutrality.

Qualified Neutrality v. Traditional Neutrality

Generally, States that are not party to an international armed conflict are considered neutral States. The law of neutrality historically requires neutral States to observe strict impartiality between the parties to the conflict and to abstain from providing war-related goods or other military assistance to the belligerents. However, after war was outlawed as an instrument of national policy, some States took the position that neutrals can discriminate in favor of a State that is the victim of a war of aggression and they are not bound by their obligations of strict impartiality and abstention. Thus, proponents of qualified neutrality argue that neutral States supplying weapons and other war material to the victim of aggression are not acting contrary to the law of neutrality (NWP 1-14M (2022), ¶ 7.2.1).

For example, after Nazi Germany invaded Poland in 1939, President Franklin D. Roosevelt persuaded the U.S. Congress to enact legislation to bypass the U.S. Neutrality Acts to allow Roosevelt to provide military supplies to France and Great Britain while allowing the United States to avoid direct involvement in the war. Although the United States may have taken these actions out of a sense of moral responsibility, it was equally motivated by U.S. national security concerns and a desire to buy time to prepare the U.S. armed forces for any future involvement in the war.

Other States take the position that a State may only violate the law of neutrality if the United Nations (UN) Security Council has authoritatively identified a specific State as an aggressor and has decided to take preventative or enforcement action against the aggressor under Chapter VII of the UN Charter. Article 25 of the Charter requires member States to comply with the decisions of the Security Council, which includes an obligation to support a UN action at the expense of their neutrality. Similarly, Article 2(5) of the Charter requires member States to give the UN “every assistance in any action it takes in accordance with the present Charter” and to “refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.” Those States that hold this view consider that absent a decision by the UN Security Council, the law of neutrality remains in full force and neutrals must observe strict impartiality between the parties to the conflict.

In the case of the ongoing conflict in the Ukraine, action by the Security Council is precluded. As a permanent member of the Council, Russia can and will veto any resolution that purports to take preventative or enforcement action against Russia under Chapter VII of the Charter for its unlawful invasion of the Ukraine.

Nonetheless, on March 1, 2022, the UN General Assembly passed a resolution by a vote of 141 countries in favor, five against, and 35 abstentions. The resolution demanded that Russia, inter alia, “immediately cease its use of force against Ukraine and … refrain from any further unlawful threat or use of force against any Member State” and “immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.” Two weeks later on March 16, the International Court of Justice indicated provisional measures against Russia to, inter alia, “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of the Ukraine.”

Clearly, most States oppose the Russian invasion of Ukraine, but that does not justify turning a blind eye to the rule of law in general or the storied law of neutrality in particular. The validity of qualified neutrality is questionable and may be seen as political expediency to allow States to justify their violations of the law of neutrality on moral and ethical grounds as necessary to contain Russian expansionism. It is unlikely that we would be having this debate if Belarus (not Russia) had invaded Ukraine. Neutral States can arrive at the same result by applying the law of State responsibility and imposing lawful countermeasures on Russia for its internationally wrongful act of violating article 2(3) and article 2(4) of the UN Charter.

Law of Neutrality

The law of neutrality serves important goals. It defines the legal relationship between belligerent and neutral States during an international armed conflict, imposing duties and conferring rights on neutral and belligerent States. By imposing a duty on neutral States to abstain from providing war-related goods or services to the belligerent and to exercise their rights and duties in an impartial manner towards all the belligerents, the law of neutrality is designed to prevent escalation of the conflict.

Neutral States that fail to comply with their obligations may lose their neutral status and become a party to the armed conflict (NWP 1-14M (2022), ¶ 7.2). Nevertheless, a State that violates its neutrality is not automatically brought into the conflict as a co-belligerent (DoD Law of War Manual, ¶ 15.4.1). Clearly, conducting an armed attack against one of the belligerents would bring the neutral State into the armed conflict as a party. Similarly, a neutral State that provides actionable intelligence to a belligerent that allows that belligerent to successfully attack the opposing belligerent would become a party to the conflict. However, simply providing weapons and other war-related material to Ukraine does not, in-and-of-itself, mean that any of the States engaged in such conduct have become parties to the armed conflict with Russia.

Nevertheless, if a neutral State engages in conduct that breaches its neutral status, the aggrieved belligerent may (but is not required to) undertake such proportionate self-help enforcement actions as it deems necessary, including countermeasures, to ensure compliance by the neutral State with its obligations of abstention and impartiality under the law of neutrality.

Russia views the provision of weapons and other war-related material to Ukraine as a violation of the law of neutrality. In April 2022, the Kremlin warned the United States to stop arming Ukraine, indicating that U.S. and NATO arms shipments were “adding fuel” to the conflict and could have “unpredictable consequences.” Then, in May, Russia’s Minister of Defense warned that Russia could target NATO transport carrying weapons to the Ukraine. However, to date, Russia has chosen not to exercise its right of self-help under international law, which is understandable given its inability to defeat the Ukrainian armed forces on the battlefield.

State Responsibility

Rather than erode the time-honored law of neutrality, States that elect to provide weapons and other war-related material to Ukraine can justify their actions by applying the law of State responsibility. Under generally accepted principles of international law, States incur responsibility for their internationally wrongful acts (ASR, art. 1). An internationally wrongful act occurs when an act or omission is attributable to a State under international law and constitutes a breach of an international obligation of that State (ASR, art. 2). A State breaches its international obligations when an act of that State does not conform to what is required by those obligations (ASR, art. 12).

All States are required to settle their international disputes by peaceful means so that international peace and security and justice are not endangered (UN Charter, art. 2(3)). Moreover, all States shall “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” (UN Charter, art. 2(4)). These obligations are owed to the international community at large, not just individual States. By engaging in a war of aggression against Ukraine, Russia has endangered international peace and security, an internationally wrongful act for which it bears State responsibility (ASR, art. 28). Russia’s breach is even more egregious given its position as a permanent member of the Security Council.

Moreover, according to the International Law Commission (ILC), the prohibition of aggression is a peremptory norm of general international law (jus cogens) (A/CN.4/L.967, Conclusion 23). A peremptory norm of general international law is defined in the draft conclusions of the ILC as a “norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted” (A/CN.4/L.967, Conclusion 3). These peremptory norms “give rise to obligations owed to the international community as a whole …, in relation to which all States have a legal interest” (A/CN.4/L.967, Conclusion 17.1). Thus, any State has a right to “invoke the responsibility of another State for a breach” of a peremptory norm in accordance with the rules of State responsibility for internationally wrongful acts (A/CN.4/L.967, Conclusion 17.2).

Lawful Countermeasures

The term “countermeasures” refers to the peacetime law of State responsibility, not self-defense. With regard to Russia’s act of aggression, which endangers the peace and security of the international community, any member State may take lawful countermeasures against Russia for its internationally wrongful act to induce Russia to comply with its international legal obligations under the UN Charter (ASR, art. 49; A/CN.4/L.967, Conclusion 17.2). Countermeasures may not involve the use of force and must be commensurate with the injury suffered, the gravity of the international wrongful act, and the rights of the injured State being violated (ASR, art. 50-51). Thus, the imposition of sanctions and the provision of war-related materials, albeit violations of the law of neutrality, would be appropriate countermeasures to convince Russia to withdraw its forces from the territory of Ukraine.

Conclusion

Most States oppose the Russian invasion of Ukraine because it is an afront to the rules-based international order. Arguing that States may qualify their neutrality based on Russia’s act of aggression equally undermines the rule of law. By applying the law of State responsibility, neutral States can legally violate their neutrality by imposing sanctions and providing weapons and other war-related materials to Ukraine as lawful countermeasures without undoing the traditional law of neutrality and without increasing the risk of widening the conflict.

***

Raul (Pete) Pedrozo is the Howard S. Levie Professor on the Law of Armed Conflict at the Stockton Center for International Law, U.S. Naval War College, Newport, Rhode Island.

Photo credit: Marine Corps Staff Sgt. Royce H. Dorman