The Notions of “Non-Belligerent” and “Other States not Parties to the Conflict” in the Geneva Conventions and Additional Protocol I
The Geneva Conventions (GCs) and Additional Protocol I (AP I) include obligations for neutral States. However, the wording is not orthodox. In GC III, the expression “non-belligerent” is found twice: once in Article 4(B)2; and again in Article 122. In AP I, reference to neutrals and “other States not Parties to the conflict” is repeated several times. One may wonder what the drafters meant by the phrase “other States not Parties” and whether there is a legal consequence stemming from the difference made with “neutrals.” This post will assess whether this wording indicates an implicit acceptance of the existence of a legal third status between neutrality and belligerency. If not, it will make a hypothesis on the reason why these other terms have been employed.
Acceptance of a Third Status Between Neutrality and Belligerency?
As mentioned, the term “non-belligerency” appears twice in GC III. Meanwhile, other provisions nominally concern only “neutrals.” The term “non-belligerency” seems to have been inserted into GC III because of secondary reasons and without deeper reflection. At the Diplomatic Conference that drafted and adopted the GCs, the French delegate requested that wording because during the Second World War some prisoners of war were interned in States calling themselves non-belligerent. The term has not been repeated in other provisions of GC III (where it could and should have been for reasons of coherence) and its use has seemed both haphazard and inadvertent.
The situation is different concerning AP I. It has been argued that AP I implicitly recognizes the non-automaticity of neutral status. Similarly, Professor Schindler argues in favor of a recognition of intermediary positions by international law and AP I. By contrast, other scholars have argued that AP I does not recognize the existence of such intermediary status. For some, only the applicability threshold is at stake, as an international armed conflict may not reach the intensity-level to trigger the law of neutrality, a loophole must be avoided. Meanwhile, the term “other States not Parties to the conflict” allows respect of humanitarian obligations in low-intensity conflicts.
In our view, this last argument is not decisive. The wording of AP I is about a neutral or other State not a Party to the conflict, which seems to mean that a State can be neutral or something else in any armed conflict, including those of high intensity. Another explanation advanced is related to the notion of “differential neutrality.” With the collective security system in place, there may be some space for a State to disregard neutrality. According to this view, the vocabulary found in AP I reflects this possibility and is not a recognition of any intermediary legal position.
Jean Pictet’s statement, made during the conference that prepared two Additional Protocols to the Geneva Conventions of 1949, may give a beginning of lexical explanation for the terms used. He advanced the existence of many forms of neutrality, including non-belligerency, to justify not speaking of “neutrals” but rather of “other States not Parties to the conflict.” In any event, it seems that the words “other party to the conflict” are the fruit of a compromise. James Upcher, delving into the travaux préparatoires of AP I, affirms that they do not indicate any definite intention of the drafters. Yves Sandoz, however, points out that the permanent neutral States did not want the term “neutrals” to disappear. Finally, a compromise was found through the inclusive formula (“other party to the conflict”). Erich Kussbach then holds that this compromise was reached to avoid discarding neutrality or that it was considered to be something irrelevant, merely appertaining to the past.
Consequently, it seems difficult to say that the vocabulary employed in AP I reflects the conscious, deliberate acceptance of a third status between neutrality and belligerency in general international law. However, it certainly leaves the door open for future acceptance of such an intermediary status. Moreover, it may not be acceptance per se of such a status as much as a recognition that attitudes straddling the borders of neutrality might exist. However, as we shall see in the next section, the main concern of the AP I drafters was to avoid creating a gap in the application of humanitarian obligations. It was not to venture into the existence of legal statuses of third States. In other words, the aim of the wording was gap-related and not status-related. To immediately conclude from this wording to the recognition of an intermediary status would thus be a sort of détournement de pouvoir, a non sequitur.
The Reason for Such Vocabulary: Looking at Practice
When looking at practice before the AP I and II diplomatic conference, one may notice a series of attitudes between neutrality and belligerency. This fact alarmed the International Committee of the Red Cross (ICRC) and explains its own attitude toward the issue.
During the Korean war, the Soviet Union (USSR) supplied arms without any objection, including from the United States, relating to its neutral status. During the Israel-Arab conflicts, contemporaneous to the Cold War, Eastern European countries and the USSR “… supplied weapons or allowed their transit to the Arabs in both the 1967 and 1973 wars with impunity. Even Britain continued to train and supply Arab armed forces in 1973 while cutting off supplies to Israel.” The Vietnam conflict also involved instances of similar practices. Schindler, Upcher, and Norton point out different attitudes contrary to strict neutrality. For example, West Germany and Japan supplied arms to the United States, and the UK allowed the United States to use the territory of Hong-Kong as a base.
The humanitarian mission of the ICRC inspired a search for closing any loophole stemming from the above-mentioned practice. Mentioning only “neutrals” would allow States to argue that they are not neutrals or that neutrality does not apply, as Japan did with Vietnam, to escape from their AP I obligations. This gap-closing interpretation is corroborated by the ICRC’s commentaries. An ICRC AP I commentary, indicates “it would have sufficed to use the expression ‘not engaged in the conflict’ or ‘not Party to the conflict’ for the purposes of this sub-paragraph and other articles of the Protocol containing the same wording.” This is so because then all third States would have been covered by the relevant provisions.
Indeed, the ICRC Commentary specified that the term neutral in the Conventions “should be interpreted as covering non-participation in conflicts in general, as well as neutrality in the proper sense of the word.” A 2020, GC III commentary adds further substance to this argument, when it considers that the term “non-belligerent” employed in Article 4(B)(2) of GC III serves to give binding force to this provision regarding all non-participating States, notwithstanding the qualification of status the third State in question chooses. Hence, the obligations of AP I are applicable to all non-participating States, regardless of whether they call themselves “neutrals.”
Scholars also tend to adopt this interpretation. For example, it has been advanced that for the purpose of international humanitarian law that any State not participating to a conflict is eo ipso “neutral.” Inclusion is, thus, assured. Upcher recognizes that AP I obligations are applicable even where a State is not technically or traditionally neutral.
In summary, it seems accepted that whatever a third State may call itself, the obligations for such third States contained in the Geneva Conventions must apply. The wording has been proposed to avoid arguments which seek to circumvent these obligations.
Concluding Thoughts
At the time of the drafting of AP I, previous practice made the ICRC eager to encompass all third States and to bind them to some humanitarian obligations, independently of the debate on the recognition of “non-belligerent” legal status. It is therefore not possible to draw any definitive conclusion as to whether an intermediate status is legally cognizable based merely on the wording of AP I or GC III. At the same time, at least, the vocabulary used seems to leave the door open for the development of such a status. Or, even more, to contemplate that an intermediate status could develop and to recognize that it had already been claimed. There has still been no demonstration of the development of such a status in international law, but good arguments can now be made for it.
The wording of AP I also gives a hint concerning the separation of two sets of obligations. On the one hand, there are humanitarian obligations concerning neutrals contained in the Geneva Coventions and Additional Protocols, which apply to all non-participating States. On the other hand, there are neutrality obligations, which apply to neutral States only and not to States adopting any type of intermediary position, namely non-belligerency. International humanitarian law remains on its own track and seeks separation from the law of neutrality.
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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC.
Benjamin Meret is a PhD Candidate and teaching assistant at the University of Geneva.
The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: U.S. Army, Army Sgt. Addison Shinn
