“Strict” versus “Qualified” Neutrality
The support neutral States are providing Russia and Ukraine has ignited a debate over neutrality. It is one of existential magnitude for Ukraine. Indeed, the survival of Kyiv in early 2022 can be attributed in significant part to external support, particularly the delivery of Javelin anti-tank systems. Later, HIMARS rocket launchers helped Ukrainian forces retake territory occupied by Russia. Western intelligence also made possible the sinking of the Russian Black Sea flagship, Moskva, and strikes on command and control facilities. And the forthcoming transfer of tanks to Ukraine will enhance the effectiveness of the anticipated Ukrainian offensive eastward. But, at the same time, Iranian drones have enabled Russia’s continuing attacks, including against civilian infrastructure, throughout Ukraine, and Russia has been mounting operations from (neutral) Belarus.
This post builds on earlier Articles of War pieces (see here, here, here, and here) in anticipation of the annual West Point/Harvard Law/ICRC “Trilateral Workshop,” which, inter alia, will explore whether and when neutrality law applies. The answers depend on the approach taken to neutrality. Because the differing approaches are grounded in the history of neutrality, I will devote much of the discussion to that history. But before turning to them, it is helpful to summarize the normative architecture of neutrality.
The Basic Rules of Neutrality
The law of neutrality is binary. A State is either a belligerent or neutral; there is no legal middle ground. Belligerent States are those engaged in an international armed conflict. Since 1949, belligerent status attaches as a result of a declaration of war, unopposed occupation, or hostilities between States (Geneva Conventions, common art. 2). All other States are neutral; they need not declare neutrality to benefit from, and be bound by, neutrality rules. However, at some point, a neutral’s support to a belligerent can become so intertwined with belligerent operations that its status shifts from neutral to belligerent.
In its most basic form, the law of neutrality seeks to immunize neutrals from the adverse effects of the armed conflict while taking account of the belligerents’ interests in prosecuting the war effectively and ensuring neutrals do not help the enemy; its linchpins are accordingly non-participation and impartiality.
Two 1907 Hague Conventions have codified key aspects of neutrality law – the Convention (V) Respecting the Rights and Duties of Neutral Powers in Case of War on Land and the Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War. Russia and Ukraine are Party to the instruments, as is the United States. But some states supporting the belligerents in this conflict, such as the United Kingdom, are not. Only customary neutrality law and certain other treaty provisions bind them.
Although a comprehensive catalog of neutrality law is beyond the scope of the post, certain fundamental principles and rules lie at its core.
– Neutral land territory and airspace are inviolable; belligerent forces and their equipment may not enter or transit them (with certain exceptions, e.g., medical transport and overflight of international straits), nor may so-called “belligerent rights” (military operations) be conducted there. In particular, neutral lands, waters, and airspace may not be used as a base of belligerent operations (see DoD Law of War Manual, §§ 15.13.1, 15.5, and accompanying footnotes).
– Neutrals are obligated to take feasible measures, including the use of force, to terminate a belligerent’s violation of its territory. Should it fail to do so (whether unwilling or unable) in the face of serious consequences for the aggrieved belligerent, the latter may engage in self-help to end the violation. (see DoD Law of War Manual, §§ 15.13.2.2, 15.4.2, 15.4.3 and accompanying footnotes).
– Neutrals must be impartial. They may not participate in the hostilities, as in the case of sharing tactically useful intelligence or providing war-related goods or funding to belligerents. A neutral is not obliged to prevent private entities from providing war materiel, but if it does, it must do so impartially (see DoD Law of War Manual, § 15.13.2.1 and accompanying footnotes).
– Special neutrality rules have historically governed maritime operations. A neutral State may, for instance, allow belligerent warships to transit neutral waters in “mere passage” or call at its ports. However, it may only do so on a non-discriminatory basis and subject to strict restrictions. Special rules exist regarding neutral commerce and address such issues as contraband, visit and search, and blockade (Commander’s Handbook on the Law of Naval Operations, NWP 1-14M, ch. 7).
The Ebb and Flow of Neutrality
This brings us to the recent debate over the law of neutrality. It reflects two broadly defined streams of thought. On one side are those I would label “strict neutrality” advocates, who urge the equal application of neutrality rules to the belligerents except when the United Nations has acted (more on that below). On the other are advocates of “qualified neutrality,” who argue that neutrality rules need not be applied impartially when there is clear-cut aggression, as is the case of Russia’s unjustified armed attack on Ukraine. Rational motivations underpin both, and neither approach is new. To understand them fully, it is essential to place them into historical context.
Just War Doctrine
Of the two approaches, qualified neutrality has a longer lineage. Its foundational premise – that the belligerents should be distinguished based on wrongfulness – stretches back to the “just war” doctrine of medieval times.
The doctrine can be traced to the early 5th-century work of Saint Augustine, who coined the term in City of God. Although originally a pacifist faith, once Christianity became the Roman Empire’s official religion, it became necessary to justify the use of force doctrinally. The answer was found in the notion of a “just war.”
Eight centuries later, Saint Thomas Aquinas more fully developed the approach, especially in Summa Theologica. For Aquinas, war had to be waged on behalf of the “right sovereign,” for a “just cause,” and with the “right intention” (the promotion of good and countering of evil) to be just, and it could only be resorted to as a “last resort.” In this scheme, the concept of neutrality made little sense. Because war was a battle between good and evil, other States were morally obliged to 1) assist the side acting justly and 2) do nothing to advance the cause of the wrongdoer. Impartiality was morally questionable. As will be seen, a similar theme is reflected in qualified neutrality’s adjustment of neutrality rules to favor the side acting lawfully in resorting to force.
In fairness, State practice during the period was not entirely in compliance with just war’s theological mandates. As a practical matter, States that were not participating in war were interested in avoiding its interference with their activities, especially commerce. For their part, belligerents wanted to ensure the enemy did not receive assistance. Thus, States sometimes decided to accommodate this reality. For example, in his fascinating history of neutrality, Professor Stephen Neff cites a granular 1370 agreement between England and Flanders, which went so far as to set forth detailed enforcement mechanisms (The Rights and Duties of Neutrals p. 38-39). But, as a general matter, the emergence of a body of neutrality law had to await the demise of the just war doctrine.
The Advent of Neutrality
That would begin to occur around the 16th Century with an acknowledgment that war might be just for bothsides when “there is right on one side and ignorance on the other” (Franciso de Vitoria, On the American Indians), in other words, when “provable ignorance” exists (de Vitoria, On the Law of War). Eventually, some, such as Alberico Gentili in the Law of War, asserted that both sides might be acting justly. As Professor Yoram Dinstein has observed, “[t]he postulate that the two opposing sides in war may simultaneously rely on the justice of their clashing causes, and that they will be equally right, brought the just war doctrine in international law to a cul de sac.” (War, Aggression and Self-Defence p. 70).
The door was opening for the emergence of rules that countenanced impartiality and non-participation, the best-known example being Hugo Grotius’ 17th-century treatment of the subject in On the Law of War and Peace. A key factor would be the emergence of nation-States in the 16th and 17th centuries. International relations, and norms of international behavior, now became the province of States, not the Church. This process was accompanied by the birth of modern international law, which gave neutrality a formal framework within which to reside. At the same time, regional and global commerce, especially maritime trade, was growing in importance. The greater the reliance on cross-border trade, the more important it was formally to shield commerce from the negative impact of war.
Even war itself contributed to the demand for rules governing relations between those involved in a conflict and those that were not. As Neff notes,
Ironically, the very frequency of war in this period was another factor making for lenient treatment of neutrals. In the bewildering succession of conflicts of the seventeenth and eighteenth centuries, the major European states found themselves in a constant shuffle between belligerency and neutrality. As a result, the categories of ‘belligerent’ and ‘neutral’ did not have permanent membership…. States could even be neutral and belligerent at the same moment (p. 68-69).
This proved a fertile environment within which neutrality rules could grow. For instance, in the early 18thcentury, Cornelius van Bynkershoek, in Questions of Public Law, insisted that a neutral “must in every way guard against interfering in the war, and against showing favouritism toward or prejudice against either belligerent.” He explained, “the question of justice and injustice does not concern the neutral, and it is not his duty to sit in judgement between his friends who may be fighting each other, and to grant or deny anything to either belligerent through considerations of the relative degree of justice.”
By the 19th century, the just war doctrine was, at best, on life-support. A watershed event was the 1856 Paris Peace Conference, which ended the Crimean War. The resulting Declaration Respecting Maritime Law, open to all States, included rules that protected neutral shipping. These included the requirement that blockades be “effective” and provisions providing that “the neutral flag covers enemy goods, except contraband” and “neutral goods, with the exception of contraband of war, are not liable to capture under enemy’s flag.” This was a period in which some States, notably Switzerland and Belgium, became “permanently neutral.” And during the 1861-65 American Civil War, a controversy arose over British shipyards building Confederate warships in violation of Britain’s obligation as a neutral to ban the practice. It led to the famous 1872 Alabama Claims arbitration (the Alabama being one of the ships) between the United States and Great Britain.
Unable to doctrinally distinguish between the wrong-doer and the victim and facing the realities of a changed international economic and political system, war became a legitimate tool of international relations. Indeed, in 1906, Professor Lassa Oppenheim, the Whewell Professor at Cambridge, observed,
[W]ar is not inconsistent with, but a condition regulated by, International Law. The latter at present cannot and does not object to States which are in conflict waging war upon each other instead of peaceably settling their difference. But if they choose to go to war they have to comply with the rules laid down by International Law regarding the conduct of war and the relations between belligerents and neutral States (II International Law: War and Neutrality p. 60).
It is no surprise, therefore, that the Hague Peace Conference of 1907 crafted two treaties on neutrality that emphasized non-participation and impartiality. The 1908-09 London Naval Conference that brought together the ten major maritime powers sought to build on Hague XIII. Its Declaration of London, which was open to all States, dealt with such neutrality significant subjects as blockade, contraband, neutral prize, and unneutral service. Although it never came into effect because of British domestic opposition, the Declaration nevertheless reflected the views of the ten powerful States on maritime rules of neutrality.
But the approach to neutrality that distinguished the just from the unjust belligerent would soon resurface. The trigger was the First World War.
Collective Security
Practices during the war challenged many of the rules that had by then become well-accepted. Examples include long-distance blockades and submarine warfare. For our purposes, however, the key moment came with the establishment of the League of Nations in 1920.
The Covenant of the League reembraced the just war doctrine in its collective security scheme. Article 11 provided, “Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations.” A State that resorted to war in violation of its obligations under the Covenant was deemed to be at war with the other members and subject to severance of trade and financial relations. In that circumstance, members also were to “take the necessary steps to afford passage through their territory to the forces of any of the Members of the League which are co-operating to protect the covenants of the League” (art. 16).
A majority of the world’s States, 63, would at some point be a member of the organization, which existed until 1946. The United States did not join despite U.S. President Woodrow Wilson being instrumental in its creation. For its members, at least in conflicts between them, strict neutrality had seemingly been dealt a death blow.
During this period, there were numerous other indicators of neutrality’s demise, including the end of “permanent neutrality” for countries like Belgium and Luxembourg. But the 1928 Kellogg-Briand Treaty (Pact of Paris for the Renunciation of War) was of particular importance. By it, the parties renounced “recourse to war…as an instrument of national policy” (art. 1). And its preamble provided that a party that “promote[d] its national interests by resort to war should be denied the benefits furnished by this Treaty.” In other words, other States could use force against the State that did so. Speaking at the 1930 American Society of International Law meeting, Professor Quincy Wright explained,
[U]nder the Pact, … partiality is permissible. The Pact breaker would have no claim against any other signatory of the Pact for failure to observe the impartiality traditionally required by the law of neutrality. Similarly the traditional duty of neutrals to abstain from all direct aid to belligerents would not apply with reference to the victims of aggression (p. 84).
Today, as will be discussed, qualified neutrality advocates likewise look to the renunciation of war (Article 2(4) of the UN Charter) to make a similar argument.
The Survival of Neutrality
But neutrality was not dead. Indeed, the Permanent Court of Justice’s first judgment, The S.S. Wimbledon (1923), dealt with the subject. The case involved a refusal on the basis of neutrality to allow passage of the Wimbledon, which was carrying munitions destined for Poland during its war with (Soviet) Russia, through Germany’s Kiel Canal. The Court acknowledged that States may be neutral, although it ruled against Germany on the grounds that passage was permitted under the Treaty of Versailles (art. 381).
The League of Nations Covenant itself contemplated a situation in which the organization might be unable to act. In such a case, members had the “right to take such action as they shall consider necessary for the maintenance of right and justice” (art. 15). In other words, they had the right to remain neutral if circumstances dictated (as some did in the 1932-35 Chaco War between Bolivia and Paraguay).
A number of treaties also assumed the survival of neutrality. For instance, the 1929 Geneva Convention on Prisoners of War provided for neutral “protecting powers,” repatriation and hospitalization in neutral countries, and the establishment of a POW central tracing agency located in them. Similarly, the 1929 Convention on the Wounded and Sick had provisions addressing aid societies and medical units of neutral countries. Many bilateral treaties also provided for neutrality, an example being the 1926 Treaty of Berlin between Germany and the Soviet Union, which required the Parties to remain neutral should the other be attacked. Even the 1928 Kellogg-Briand Treaty left the door open to neutrality. It bound only parties and contained no obligation to support victim States or act against a State that violated the pact. As Quincy Wright noted, it allowed States to “remain aloof.” These shortcomings would be remedied (albeit imperfectly) in the UN Charter.
In terms of State practice, the failure of sanctions in 1935-36 in response to Italy’s attack on Ethiopia and the 1938 annexation of Austria by Germany led some States to question the effectiveness of the League’s collective security scheme. For instance, in 1936, the Scandinavian nations and Belgium, the Netherlands, Spain, and Switzerland issued a joint declaration that effectively renounced the application of Article 16 of the League’s Covenant. Two years later, the Benelux and Scandinavian countries declared that “under the current conditions and the practice followed during the last years, the system of sanctions has acquired non-compulsory character.”
Cataloging these and other related events, Hans Morgenthau observed that neutrality was being “resurrected” in Europe. With war clouds looming, strict application of neutrality rules appeared to offer many nations the best guarantee of security. But Morgenthau, who would become one of the most influential post-war realists, cautioned,
The fate of the neutrality of [the “small European nations”] ultimately will not be decided by them, but by the Great Powers; and this decision will be made, not according to legal formulae and ideological principles, but according to the real or presumed interests of those Powers (p. 486).
He was, of course, tragically prescient.
Collective Security 2.0 and Self-Defense
In terms of neutrality, the Second World War was a mish-mash of respect for traditional rules of neutrality (e.g., non-entry of belligerent forces into neutral territory like Switzerland), adjustment of those rules in light of the contemporary context (e.g., navicerts), breach of the rules (e.g., unrestricted submarine warfare, which violated the 1936 London Naval Protocol), and only slightly veiled support for the “just” side, evidenced by the extensive support and assistance the United States provided the United Kingdom.
Deviation from the strict application of neutrality rules in favor of the victim is noteworthy, especially considering the role of neutrals in the Ukraine conflict. As President Roosevelt explained, “even a neutral cannot be asked to close his mind and close his conscience.” This approach, which harkens back to just war doctrine, became known as “non-belligerency,” a term sometimes used instead of “qualified neutrality.” Although expressed in moral terms, it was justified in legal ones. For instance, the United States styled a transfer of destroyers to the United Kingdom in exchange for military bases as reprisal for Germany’s attack on Poland in breach of the Kellogg-Briand Pact and for violating the neutrality of the Netherlands and Belgium. As to Lend Lease, Secretary of State Hull explained,
I am certain that the day will come again when no nation will have the effrontery and the cynicism to demand that, while it itself scoffs at and disregards every principle of law and order, its intended victims must adhere rigidly to all such principles – until the very moment when its armed forces have crossed their frontiers.
Hull’s argument is remarkable in its resemblance to NATO’s assertion in the 2022 Madrid Summit Declaration that Russian aggression is the “most significant and direct threat to Allies’ security.”
Given the unthinkable suffering and destruction of the war, it is unsurprising that a post-war attempt at collective security would be made. The result was the creation of the United Nations, with a Charter setting forth rules that, in theory, remedied the weaknesses of its predecessor. The implications for the law of neutrality were substantial, exceeding those of the League’s Covenant.
According to Article 39, the Security Council is empowered to determine that a situation amounts to a “threat to the peace, breach of the peace, or act of aggression” and make recommendations or take action “to maintain or restore international peace and security.” To resolve the situation, it can take non-forcible action such as economic sanctions under Article 41. Should those measures fail, or be likely to fail, it may authorize or mandate the use of force against the malevolent State pursuant to Article 42 of the Charter’s Chapter VII.
The critical provision vis-à-vis neutrality is Article 2(5): “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.” Moreover, the Charter emphasizes that all Member States must “carry out” the Security Council’s decisions (art. 25). This leaves little room for neutrality when the Security Council exercises its Chapter VII authority.
Should the Security Council fail to act in a timely manner (or at all), Article 51 entitles States to assist the victim of an “armed attack” in collective self-defense. NATO is the preeminent institutional expression of collective defense. It has rejected strict neutrality by its 30 members, for according to Article 5 of the North Atlantic Treaty, “an armed attack against [a member] shall be considered an attack against them all and … each … will assist the Party or Parties so attacked by taking … such action as it deems necessary, including the use of armed force….”
With the Charter, just war doctrine had returned in secular form. A body now exists that can determine whether a State is acting justly, as the Church had in medieval times. And States are legally obliged to support the decision of that body and refrain from actions that might assist States that are using force unlawfully, legal obligations that mirror their just war moral analogs. In addition, although not obligatory, States may help the victim of aggression without violating their neutrality obligations because self-defense is accepted as a treaty-based and customary law “circumstance precluding wrongfulness” (Articles on State Responsibility, art. 21).
State practice supports this approach, as in the case of non-belligerent States providing assistance when the Security Council acts under Chapter VII, the two most prominent examples being the 1951-53 Korean Conflict and the First Gulf War in 1990-91. Further, there is no State opinio juris to the effect that neutrality law can legally preclude States from complying with binding Security Council resolutions. And as the current Ukraine conflict vividly illustrates, even without Security Council action, many States believe they may deviate from neutrality in favor of a State unequivocally acting in lawful self-defense.
Yet, as in the inter-war years, the law of neutrality is not dead. For instance, the 1949 Geneva Conventions, drafted four years after the Charter, contemplate neutral countries acting as Protecting Powers (Common Articles 8/8/8/9), as was done during the Falklands conflict. Moreover, some States have claimed neutral status even when the Security Council has authorized enforcement action, as in the case of Iran and Jordan (initially) during the 1990-1991 Gulf War. In addition, State law of armed conflict manuals typically deal with the subject, as have major “international group of expert” efforts like the San Remo Manual, Harvard Air and Missile Warfare Manual, and Tallinn 2.0 Manual. And on repeated occasions, the International Court of Justice has mentioned neutrality, as in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, where it noted that “the principle of neutrality…, which is of fundamental character…, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict” (¶ 89).
The Current Status of Neutrality
Today, there is broad consensus that neutrality law survives but must be adjusted in some circumstances to accommodate enforcement action under the UN Charter and collective self-defense. But questions remain. Do neutrality rules apply in their entirety if the Security Council has yet to approve Chapter VII enforcement action or recognize a right of self-defense? This might occur if the Council has yet to decide on the measures to take following an Article 39 finding or where the Security Council cannot take meaningful action due to a veto (or risk of one) by a permanent member. Or what of a situation where a belligerent’s supposed right of self-defense is ambiguous, or the supporting State does not assert that it is acting in collective self-defense because it is not politically expedient to do so? And does the right of collective self-defense apply to non-forcible support?
These questions animate contemporary neutrality discussions, given that there is no Security Council enforcement action addressing the situation in Ukraine and no binding determination by the Council that Russia is the aggressor (due to the Russian veto). On the one hand are those who argue for the unbiased application of traditional neutrality rules in the aforementioned situations. Because an international armed conflict is underway, neutrality rules should apply intact. Like the prevailing 19th and early 20th century approaches to neutrality, the focus is on relations between belligerents and neutrals, not right and wrong. As my colleague at the Naval War College, Professor Raul (Pete) Pedrozo, has thoughtfully argued,
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.
This is not an unreasonable contention, and it certainly enjoys a degree of historical precedent.
If the strict neutrality approach is applied, there have been many neutrality violations by States supporting Ukraine, not the least of which is the United States. These include the provision of arms and other materiel, massive financial aid, training belligerent forces on one’s territory, and providing direct and indirect support to Ukrainian combat operations. Russia’s supporters have likewise crossed the line by, among other things, allowing the use of territory to mount operations (Belarus) and providing materiel and personnel (Iran, Syria, North Korea).
But the qualified neutrality approach appears to have prevailed in this conflict. With roots in the just war era, inter-war years, and non-belligerency during World War II, it suggests that the balancing of neutral and belligerent rights and obligations should advance the international community’s interests. That is only possible if the victims of unlawful conduct can receive assistance in mounting a lawful response to aggression; strict application of rules applied without reference to context can run counter to that goal.
The United States, the most forward-leaning practitioner of non-belligerency during World War II, supports the approach today. The DoD Law of War Manual provides that the UN Charter and Security Council decisions “may, in certain circumstances, qualify rights and obligations under the law of neutrality” (§ 15.2.3.2). It further provides that regional and collective self-defense arrangements “may prevail over the State’s right under the customary law of neutrality to be impartial among the belligerents and to abstain from the armed conflict” (§ 15.2.4). If a State may act in accordance with qualified neutrality in cases of a standing arrangement based on collective self-defense (as with the NATO and bilateral mutual defense treaties), and without Security Council imprimatur, then as a matter of law, it is equally entitled to do so on an ad hoc basis.
I agree with the approach as a matter of law and policy. Yet I concede that it is subject to abuse. For instance, Russia has counter-normatively claimed a right of self-defense, which States providing support to it could cite as the legal basis for their violations of neutrality rules. And, as Yoram Dinstein has pointed out,
The pitfall is that qualified neutrality is a ‘half-way house’ between neutrality and belligerency. The Belligerent Party suffering from adverse treatment by a neutral State is not likely to bow to that State’s subjective determination as to who the aggressor is, and bilateral relations are liable to deteriorate until the two countries drift into open hostilities” (at 190).
He is, of course, correct. Nevertheless, in my view, the community’s interest in international peace and security justifies the risk of interpreting international law as admitting of qualified neutrality. And I would point out that the very existence of the right to individual self-defense already countenances the risk of abuse.
Moreover, as outlined above, there is ample State practice stretching back many centuries supporting the favoring of an aggrieved belligerent. This was so even after neutrality law reached its apogee in the late 19thand early 20th centuries. Although strict neutrality is often labeled “traditional neutrality,” it is historically no more traditional than qualified neutrality.
Finally, it must be understood that qualified neutrality does not throw the baby out with the bathwater. By it, only the victim State of aggression is afforded the right to support from neutral States, and the aggressor State is not released from the protections neutrals enjoy vis-à-vis its operations. Of course, to aid or assist the aggressor would still violate the tenets of neutrality law.
Concluding Thoughts
Robert Jackson, who later served as Supreme Court Justice and Nuremberg Tribunal prosecutor, addressed neutrality at the 1941 Inter-American Bar Association Conference in Havana. At the time, he was serving as Attorney General. In light of the conflict in Ukraine, his words merit careful consideration. Therefore, I close with his thoughts on the subject.
The doctrine of international law in the seventeenth and eighteenth centuries was based on a distinction between just and unjust wars. From that distinction there was logically derived the legal duty of members of the international society, bound by the ties of solidarity of Christian civilization, to discriminate against a state engaged in an unjust war — in a war undertaken without a cause recognized by international law.
…
It may be argued that the nineteenth century and the first two decades of the twentieth witnessed an interlude in international law inconsistent with what went before and also with what was to follow. But if I read history correctly, there has seldom, if ever, been a long period of time during the past three centuries when states, for their own self-defense or from other motives, have been completely impartial in relation to the belligerents.
…
Most international lawyers will agree that where there is a specific legal obligation not to resort to armed force, where there has been a resort thereto, and where it has been appropriately determined that one party is the aggressor by a method which the aggressor has agreed to accept, the traditional rules of neutrality need not be applied. The difficulty with this proposition lies in the lack of means for determination of the fact of aggression.
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[But] in flagrant cases of aggression where the facts speak so unambiguously that world opinion takes what may be the equivalent of judicial notice, we may not stymie international law and allow these great treaties to become dead letters.
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These events have ushered into international law a basis upon which the United States may legally give aid to the Allies in the present situation. No longer can it be argued that the civilized world must behave with rigid impartiality toward both an aggressor in violation of the Treaty and the victims of unprovoked attack. We need not now be indifferent as between the worse and the better cause, nor deal with the just and the unjust alike. To me, such an interpretation of international law is not only proper but necessary if it is not to be a boon to the lawless and the aggressive. A system of international law which can impose no penalty on a lawbreaker and also forbids other states to aid the victim would be self-defeating and would not help even a little to realize mankind’s hope for enduring peace.
In my estimation, as a matter of law and good sense, Justice Jackson’s words ring as true today as they did in 1941.
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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.
Photo credit: Unsplash
