Neutrality

See also Neutralitätsrecht

Three days after the outbreak of Russia's war of aggression on Ukraine, which violated international law, the German government announced that it would deliver 1,000 anti-tank weapons and 500 surface-to-air missiles, as well as armored vehicles and fuel, to Ukraine to support it in its defensive campaign against advancing Russian troops. The next day, the weapons were on their way to Ukraine. A few days later, the German government also decided to send 2,700 anti-aircraft missiles to Ukraine. Other Western states also supplied weapons.

The core of the law of neutrality applicable today under customary international law was laid down in 1907 in the Hague Conventions on the Law of War. The legal status of neutrality is characterized by the duties of abstention, impartiality and restraint, i.e. the neutral state must refrain from participating in the armed conflict between the parties to the conflict, it must treat both parties to the conflict equally as a matter of principle and it must prevent violations of its neutrality and its national territory by a party to the conflict.

The law of neutrality prohibits neutrals in particular from supplying weapons, ammunition and other war material to the belligerents or from supporting them in any other way, for example by providing militarily relevant information. Violations of these obligations can be punished by a belligerent with countermeasures and violent reprisals and, in the last resort, with treatment as a belligerent.

With the founding of the United Nations (UN) in 1945, the hour of neutrality initially seemed to have struck. In the collective security system of the UN Charter, the use of force was prohibited in principle, and the Security Council was given primary responsibility for maintaining international peace and security. In the event of the use of force, the Security Council was to make a binding determination of the aggressor and take measures to restore peace. All members of the United Nations were to render assistance to the United Nations against the aggressor and to carry out the measures imposed by the Security Council against the aggressor.

For example, in June 1950, the Security Council determined that the armed attack by North Korean troops on the Republic of Korea constituted a breach of the peace and recommended that United Nations members provide the necessary assistance to the Republic of Korea to repel the armed attack. Similarly, when Iraq invaded Kuwait during the Second Gulf War in August 1990, the Security Council condemned the Iraqi invasion as a breach of international peace and imposed sanctions on Iraq. In doing so, the Council made it explicitly clear that its decisions did not preclude support for the government of Kuwait. There was no room for impartiality toward the parties to the conflict in these cases-the law of neutrality did not apply.

However, these examples remained the exception in Security Council practice. The UN Charter had a design flaw from the very beginning. As early as 1949, the U.S. international law scholar and later International Court of Justice judge Philip C. Jessup identified a "gap" in the UN's collective security system. If one of the five permanent members of the Council (China, France, Russia, the United Kingdom, and the United States) or one of its allies, which were vetoed, committed an act of aggression, the permanent member could, by exercising its veto, prevent both the designation of the aggressor and the taking of measures to restore international peace and security. In this case, German international law doctrine2) in particular also assumed that the classical law of neutrality should continue to apply.

This design flaw was also evident in the case of Russia's attack on Ukraine. On February 25, 2022, Russia vetoed a resolution supported by 82 states in which the Security Council would have "strongly deplored the aggression of the Russian Federation against Ukraine in violation of Article 2(4) of the Charter of the United Nations" and called on Russia to immediately cease fire and withdraw from Ukraine. In the absence of action by the Security Council, commentators in Germany therefore assumed the application of the law of neutrality and its violation by the arms deliveries to Ukraine.3)

Nevertheless, some consider the arms deliveries to be lawful and justify this on the basis of the natural right to collective self-defense under Article 51 of the UN Charter.4) According to this provision, in the event of an armed attack, states may support the attacked state with arms and ammunition - apart from participating in the hostilities with their own armed forces. However, the Federal Republic did not invoke the right of collective self-defense with regard to the arms deliveries; in particular, it did not inform the Security Council about these arms deliveries. Under the second sentence of Article 51 of the UN Charter, however, measures taken by a state in the exercise of its right of self-defense must be reported immediately to the Security Council. In contrast, after the armed terrorist attack on the United States on September 11, 2001, and the armed attacks by the terrorist organization Islamic State on Iraq, France, and other states, the German government had immediately informed the Security Council of the measures taken in the context of collective self-defense. One reason for not invoking the collective right of self-defense is likely to be that this would make Germany a joint belligerent ("co-belligerent") with Ukraine against Russia.

In some cases, the German arms deliveries to Ukraine were also justified as so-called "countermeasures" within the framework of state responsibility. These allow a violated state to respond to an act in violation of international law by temporarily failing to fulfill its obligations under international law - in this case, the duty of impartiality under the law of neutrality - in order to induce the lawbreaker to end the violation. Russia's aggression against Ukraine is undoubtedly an act in violation of international law; however, the state thereby violated is Ukraine, not Germany. Third states may only assert the responsibility of the lawbreaker, i.e. they may demand that the lawbreaker, among other things, put an end to the attack in violation of international law and make reparations to the injured state. The taking of countermeasures by third states is highly controversial in international law. Even if one were to assume that in the present case any state other than the violated state would also be authorized to take countermeasures, neither Germany nor any other state has justified its arms deliveries to Ukraine as a countermeasure.

In the present case, however, arms deliveries to Ukraine are nevertheless not contrary to neutrality, since in the case of aggression contrary to international law, the law of neutrality does not apply at all. Classical neutrality law developed in the 19th century, i.e. at a time when states had an unrestricted right to wage war. For international law, it was irrelevant whether wars were waged for a good reason, a bad reason, or no reason at all. All belligerents, whether aggressor or aggressed, were to be treated equally by neutrals - the neutrality obligations of abstention, impartiality, and interdiction extended equally to both parties. This changed with the prohibition of war in international law in the first half of the 20th century. With war illegal under international law, no rights for the aggressor, in particular no right to non-discrimination, could arise from it - ex injuria jus non oritur.

The right to discriminate against the aggressor and to support the attacked state with arms can be traced back to the treaty on the outlawing of war, the War Eradication Pact or Briand-Kellogg Pact of August 27, 1928, in which the High Contracting Parties solemnly declared that they condemn war as a means of resolving international disputes and renounce it as a tool of national policy in their mutual relations.

The War Powers Pact is one of the first multilateral law-making treaties in international law in which the contracting parties enter into obligations towards all other contracting parties - so-called obligations erga omnes partes. A breach of these obligations directly affects the interests of each contracting party. The treaty, which is still in force today, binds 63 states, including the Federal Republic of Germany and the Russian Federation. The treaty has by no means been superseded by the UN Charter, as evidenced, among other things, by the fact that several states have issued declarations on its continued application since 1945.

In 1934, the Association of International Law, in its Budapest Declaration on the Interpretation of the War Powers Pact, stated that in the event of a violation of the pact, the other parties to the pact may refuse to fulfill the obligations of neutrality toward the aggressor. This opened the way for financial or material support to the attacked state - including with war material. The underlying idea was that all parties to the treaty had an interest in sanctioning the aggressor. Neutrality was replaced by the new status of non-belligerence ("non-belligerency"). Contrary to a widespread view in the literature, non-lligerency is not an intermediate stage between neutrality and a state of war, but a legal status replacing neutrality.

The term "non-belligerent" or "non-belligerent" had been chosen at the 38th session of the International Law Association in Budapest in September 1934 by the Swedish international law expert and later judge of the Permanent Court of International Justice, Åke Hammarskjöld, in distinction to the classical concept of neutrality, in order to describe the legal position of the parties to the War Powers Pact who oppose the aggressor without themselves taking an active part in hostilities.

Although the Budapest Interpretative Declaration of the War Powers Pact was not without controversy, especially in international law scholarship, it was taken up by several states in subsequent years. As early as April 1935, former U.S. Secretary of State Henry L. Stimson invoked the Budapest Interpretive Declaration in a speech to the American Society of International Law when he declared that a violation of the War Powers Pact constituted a violation of international law against all parties to the pact and entitled them to deny the aggressor the classical rights of neutrality. The concept of nonbelligerence as a legal status distinct from neutrality was also taken up again at the Amsterdam meeting of the International Law Association in 1938 in a memorandum on "Nonbelligerence and Neutrality" presented by the German section. This stated that the new legal position was not strictly impartial toward the belligerents.

The new law saw its first practical application during World War II. In May 1940, when a German victory in continental Europe seemed almost inevitable, British Prime Minister Winston Churchill appealed to U.S. President Roosevelt: "You should proclaim nonbelligerence, which would mean that you would help us with everything except the actual use of armed forces." Then, in early 1941, nonwarfare formed the basis for the Lend-Lease Act, which allowed the U.S. government to supply war essentials such as weapons, ammunition, vehicles, fuel, food, and aircraft to countries fighting the Axis powers (Germany, Italy, Japan) without directly participating in the war itself. Direct participation in the war had not yet been communicated to the American population before the attack on Pearl Harbor in December 1941.

During a hearing on the Lend-Lease Act before the U.S. House of Representatives on January 11, 1941, Henry L. Stimson, in his capacity as Secretary of War, referred to the Budapest Declaration as the "most authoritative statement of international law" on the question of the effect of an attack in violation of the Briand-Kellogg Pact on the rights and remedies of the other parties to the agreement. The statement was of such importance, in his view, that he placed it on the record in full. According to it, the United States was no longer bound by the law of neutrality vis-à-vis an aggressor - arms deliveries to the United Kingdom thus did not violate international law.

A few months later, the U.S. Attorney General and later chief U.S. prosecutor before the Nuremberg War Crimes Tribunal, Robert H. Jackson, also justified the arms shipments to the United Kingdom. In a speech to the Inter-American Bar Association in Havana on March 27, 1941, he stated, "It is the policy of the United States Government to give England all possible aid 'below the threshold of war.' At the same time, the Government is determined to avoid entering the war as a belligerent."

Jackson argued that international law had evolved against the backdrop of the outlawing of war in the Briand-Kellogg Pact and the South American anti-war pact, the 1933 Saavedra-Lamas Pact, and that one could no longer accept the unrealistic and cynical assumption that the aggressor and the aggressed should be treated equally. Discrimination between belligerents, he said, represented a return to the international law doctrine of the 17th and 18th centuries, which distinguished between just and unjust wars. From this distinction, the legal duty to discriminate against a state waging an unjust war, i.e., a war without a cause recognized by international law, was derived at that time. In the 20th century, the outlawing of war under international law led to all states having an interest in maintaining peace. Aggression, he said, constitutes a violation of international law against any state that entitles, but does not obligate, that state to support the attacked state by any means. Jackson stated verbatim, "It can no longer be argued that the civilized world must behave in a strictly impartial manner both toward an aggressor ... and toward the victims of an unprovoked attack. We must not be indifferent between the worse and the better cause, nor must we treat the just and the unjust equally. ... A system of international law which cannot punish a lawbreaker and which also forbids other states to help the victim would be self-defeating and would not contribute even in the slightest way to the realization of mankind's hope for lasting peace."

However, Jackson also recognized the Achilles heel of the new concept of nonwarfare. There was no procedure by which the aggressor could be determined in a legally binding manner. This was left to each state itself-with all the attendant dangers and possibilities for abuse. However, this problem did not arise for him in the case of aid to the Allies, since the aggression of the Axis powers was obvious and recognizable to any rational person. In cases where there was a lack of a procedure for determining aggression, recognized even by the aggressor, the world public should be the judge of the fact of aggression.

Although the new legal status of non-belligerents is still not uncontroversial in international legal scholarship, it has found its way into international humanitarian law. The Third Geneva Convention Relative to the Treatment of Prisoners of War of 1949 explicitly distinguishes between neutral and non-belligerent powers.

Since 1945, the right of states to provide arms to the victim of aggression can be based not only on the War Powers Pact but also on the UN Charter. This prohibits not only war, but any threat or use of force. The right to provide assistance is independent of the Security Council's authority under Chapter VII of the UN Charter to require states to assist the aggressed state; nor does it depend on the Security Council's determination of aggression.

The latter has the "primary responsibility," but not the exclusive responsibility, to ensure the maintenance of international peace and security. In the horizontal and decentralized legal order of international law, it is basically up to each state itself to identify violations of the law and to draw the consequences. This is not least because (timely) action by the Security Council within the framework of the UN Charter is by no means guaranteed.

As Hans Kelsen noted as early as 1948, "between the beginning of the illegal attack and the moment when the centralized machinery of collective security is set in motion ... even in the case of its perfectly instantaneous functioning, there is a period of time, an interval, which may be disastrous for the victim." In such a case, the victim of aggression must not be left without assistance. However, if the state acts without or before the Security Council determines that aggression has occurred, it acts at its own risk. If it is subsequently determined that there was no aggression in violation of international law, the unassisted belligerent may, if necessary, assert the state's responsibility under international law for an act in violation of international law.

Often, states will not be able to clearly determine who the aggressor is. For example, in the First Gulf War between Iran and Iraq in 1980-1988, both sides invoked the right of self-defense. A determination of the aggressor may also be omitted for alliance or other reasons. In such cases, states remain free to adopt a neutral stance. Hugo Grotius, the father of modern international law, had already argued in the early 17th century that states should treat all belligerents equally when it was doubtful whose cause was "just."

In the case of the Russian attack on Ukraine, however, the case is more than clear. Although Russia's exercise of its veto power prevented a Security Council determination of aggression, the General Assembly created a special residual procedure for just such a case back in 1950. Under its resolution No. 377(V), "United for Peace," in cases where there appears to be a threat to or breach of the peace or aggression, and where the Security Council is unable, as a result of an exercise of the veto by a permanent member, to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly may promptly consider the question and make appropriate recommendations to member states for collective action to maintain or restore international peace and security. If the General Assembly is not in session, it may convene within twenty-four hours at the request of the Security Council for a special emergency session. Unlike the question of the existence of aggression, the Security Council's recourse to the General Assembly is merely a procedural matter over which the permanent members have no veto power.

After a finding of Russian aggression against Ukraine failed due to Russia's veto, the Security Council decided to convene an emergency special session of the General Assembly on February 27, 2022, in its Resolution No. 2623, with Russia voting against and three abstentions. In only the 11th emergency special session in the history of the United Nations, the General Assembly adopted a resolution on March 1, 2022, on "Aggression against Ukraine," in which it strongly disapproved of "the aggression of the Russian Federation against Ukraine in violation of Article 2(4) of the Charter" and demanded "that the Russian Federation withdraw all its armed forces immediately, completely, and unconditionally from the territory of Ukraine within its internationally recognized borders."

Of the 193 member states of the United Nations, 141 voted in favor of the resolution, 35 abstained, and only five (Russia, Belarus, North Korea, Eritrea, and Syria) voted against. Unlike the Security Council, the General Assembly cannot make a legally binding determination of aggressor, but its resolutions are widely viewed as expressing the views of world opinion. In the international law literature, a two-thirds majority in the Genreal Assembly has been considered sufficient to put the individual determination of aggressor by individual states beyond doubt as to their bona fides. With 141 votes in favor of the resolution, this criterion is more than met.

The clear identification of the aggressor precludes the application of the law of neutrality with its duty of impartiality. This duty is likely to favor only the aggressor in the majority of cases anyway. The non-application of the law of neutrality has no disadvantages for the states not involved in the war. Relations between the non-belligerent and belligerent states continue to be governed by the law of peace. This allows states to supply arms and other war material to other states within the framework of their general freedom of action. In the absence of a violation of international law, the supply of arms to the aggressor state cannot therefore be a reason for countermeasures and certainly not a reason for violent reprisals by the aggressor against the arms-supplying state. The latter would in any case be opposed by the UN Charter's prohibition of the use of force. Measures of force are in principle permissible only in response to an armed attack. However, arms deliveries as such do not constitute such an attack.

In view of the obvious Russian aggression against Ukraine, any invocation of the classic law of neutrality and the associated equal treatment of the warring parties would be tantamount to a legal and moral declaration of bankruptcy. To intervene directly in the Russian-Ukrainian conflict with one's own armed forces to defend Ukraine seems inadvisable because of the possibility of an escalation and expansion of the war. Supplying weapons to the illegally attacked state is thus the least that Germany and other states can do in view of the Security Council's inaction to maintain and restore international peace and security and to defend the international legal order. International law does not condemn states to stand idly by and watch aggression; on the contrary, a value-based international law that prohibits the use of force in interstate relations and sanctions the offense of aggression under international criminal law virtually demands support for the victim of aggression.