War and Neutrality | Judicial and Arbitral Settlement | PUBLIC INTERNATIONAL LAW

WAR AND NEUTRALITY UNDER PUBLIC INTERNATIONAL LAW

1. Definition of War in International Law War, in the context of international law, is a state of armed conflict between sovereign states or between organized groups within a state (in the case of civil wars), where the legal relations between the belligerents are governed by specific rules. War has traditionally been regarded as a legitimate means of resolving international disputes before the advent of the modern United Nations (UN) system, which prohibits the use of force except in cases of self-defense or when authorized by the UN Security Council.

• Article 2(4) of the UN Charter prohibits member states from using or threatening force against the territorial integrity or political independence of any state. The main objective of this prohibition is to maintain international peace and security.

2. The Jus ad Bellum and Jus in Bello Dichotomy The legal framework governing war is traditionally divided into two primary branches:

• Jus ad Bellum (Right to War): Refers to the legality of resorting to war or the use of force by a state. Key principles include:
  • The prohibition of force under Article 2(4) of the UN Charter.
  • Self-defense under Article 51 of the UN Charter, which allows states to defend themselves if an armed attack occurs.
  • Security Council authorization under Chapter VII of the UN Charter, where the UN Security Council can approve the use of force in response to threats to international peace and security.
• Jus in Bello (Law in War): Once a conflict begins, this body of law regulates the conduct of hostilities. It is also known as International Humanitarian Law (IHL) and includes:
  • The Geneva Conventions and their Additional Protocols, which regulate the treatment of non-combatants, prisoners of war, and the wounded.
  • The Hague Conventions that set out the means and methods of warfare.

3. Neutrality in International Law

Neutrality is the legal status of a state that chooses not to participate in an armed conflict between other states. Neutrality is based on international customary law and codified by various international treaties, most notably the Hague Conventions of 1907.

• Types of Neutrality:

  • Permanent Neutrality: A state that has declared itself permanently neutral, such as Switzerland, agrees not to participate in any future wars or alliances.
  • Temporary Neutrality: A state that adopts neutrality for the duration of a specific conflict without making a permanent declaration.

• Rights and Duties of Neutral States:

  • Right to Territorial Integrity: Belligerents must respect the territory of neutral states. This includes not engaging in hostilities, transporting troops, or utilizing the neutral state’s resources for warfare purposes.
  • Non-Interference: Neutral states must refrain from assisting belligerents in a conflict, directly or indirectly. This includes supplying arms, military assistance, or allowing their territory to be used for military purposes.
  • Impartiality: Neutral states must treat all belligerents equally. Favoring one side over the other can lead to a breach of neutrality and may result in the neutral state being considered a co-belligerent.

• Legal Framework for Neutrality:

  • The Hague Conventions (1907) set out the basic rules governing neutrality in war, such as the prohibition of the passage of troops through neutral territories and the seizure of neutral property.
  • The Geneva Conventions also recognize the status of neutrality in the context of humanitarian aid, particularly in allowing neutral actors to assist victims of armed conflicts without being considered as parties to the conflict.

4. Rights of Belligerents vis-à-vis Neutral States Despite the principles of neutrality, there are certain rights and privileges granted to belligerents with respect to neutral states:

• Search and seizure on the high seas: Belligerent states have the right to stop and search neutral ships to ensure they are not transporting contraband or assisting the enemy.
• Blockades: A belligerent may establish a blockade of enemy ports or coasts, but such blockades must be declared, notified, and applied impartially. Neutral vessels attempting to breach a blockade may be seized.

However, the rights of belligerents over neutral states have been greatly limited in modern times, particularly with the advent of the UN Charter and the principle of sovereign equality and non-intervention.

5. Violations of Neutrality When a neutral state breaches its duties, it may be considered to have violated neutrality and, as a consequence, can be treated as a co-belligerent by other states involved in the conflict. Violations can include:

• Allowing its territory to be used as a base of operations by one of the belligerent parties.
• Supplying military aid or permitting the passage of military personnel through its territory.
• Failing to enforce restrictions on its nationals, such as those who may seek to provide direct military assistance to a belligerent.

6. The Role of International Organizations in the Maintenance of Neutrality

• United Nations: The UN plays a critical role in maintaining peace and security, and its mechanisms may influence the obligations and status of neutrality. For instance, neutrality becomes complicated in situations where the UN Security Council authorizes collective measures, as neutral states may be pressured to contribute to international efforts.
• International Court of Justice (ICJ): The ICJ has jurisdiction over disputes involving neutrality, war, and the use of force. States may bring cases regarding the violation of neutrality, as well as other violations of international law in armed conflicts.

7. Sanctions for Breach of Neutrality and War Conduct

• A neutral state that breaches neutrality may lose its neutral status and be subjected to hostile actions from the aggrieved belligerent state.
• Belligerent states that violate the rules of war, including those related to neutral states, may be subject to international sanctions, criminal prosecution under international criminal law, and individual liability under frameworks such as the International Criminal Court (ICC) for war crimes or aggression.

8. Modern Developments and Challenges

• Cyberwarfare: The rise of cyber-attacks introduces new challenges to traditional concepts of war and neutrality. Neutral states may face difficulty in preventing their territories (such as cyber infrastructure) from being used in cyber conflicts, and there is an ongoing debate about how existing rules of neutrality apply in this domain.
• Terrorism and Non-State Actors: The participation of non-state actors in armed conflicts, such as terrorist groups, complicates the application of neutrality. International law generally holds that neutrality applies between states, but conflicts involving non-state actors (e.g., ISIS, Al-Qaeda) have led to debates about the obligations of states vis-à-vis such groups.

Conclusion The principles of war and neutrality in international law have evolved from traditional state-based conflicts to address modern challenges. The legal framework, grounded in treaties like the UN Charter, the Geneva Conventions, and the Hague Conventions, continues to guide the conduct of states in times of war and peace, while also being tested by contemporary issues like cyberwarfare and non-state actors. Neutrality remains a vital concept in safeguarding the rights of states that wish to remain outside of conflicts, though it faces growing complexities in today’s interconnected global landscape.