21 Nov Russia’s Lawfare Against the West in the UN Security Council and the Law of Neutrality
[Constantine Antonopoulos, LL.B (Thrace), LL.M (Cantab), Ph.D (Nottingham) is a Professor of Public International Law at the Faculty of Law, Democritus University of Thrace. He is also a member of the ILA Committee on the Use of Force and author of Counterclaims before the International Court of Justice (Asser Press-Springer 2011) and Non-Participation in Armed Conflict (Cambridge University Press 2022).]
The armed conflict taking place in Ukraine since February 2022 has given rise to issues of the law of neutrality (see generally here and here) especially the concept of qualified neutrality discriminating in favor of the victim of aggression. It is remarkable that while there has been quite extensive debate among academics on the relevance and application of the law of neutrality (see here, here, here, here, here, here, here, here and here) this is not matched by State practice. The debate centers mainly on the assistance totaling €237.9 billion provided to Ukraine by a number of States (notably the USA, the UK, Germany, France, Norway, Japan, Australia, New Zealand and Canada) and the EU. In particular, thirty-two States, twenty-five of which are NATO members (except Hungary) provide military assistance that consists of weapons (initially body armor, small arms, ammunition and progressively climaxing to artillery, anti-aircraft weapons, armored vehicles, tanks, reconnaissance and attack drones, cluster munitions and a pledge for F-16 jet fighters), strategic and tactical targeting intelligence and cyber counter-offensive operations. The military assistance to Ukraine has been determined on the basis of the priorities of the Ukrainian government. It is interesting that the law of neutrality is totally absent from statements of governments providing assistance to Ukraine. However, the Russian Federation has made express references to it. Moreover, whereas statements by governments appear to raise contingencies that are the object of the law of neutrality, they have not been articulated in terms of this law. In this blog I shall discuss (II) the continuing validity of the law of neutrality; (III) the justifications offered by the States assisting Ukraine; (IV) the issue of ‘qualified neutrality’; (V) the response of the aggrieved belligerent to these violations and (VI) by way of conclusion whether there has been a change in the law admitting qualified neutrality in the face of aggression.
II. The Continuing Validity of the Law of Neutrality.
The law of neutrality regulates the relations between the belligerents in an armed conflict and third non-participating States. Relations between belligerents and non-participants are not entirely ‘peaceful’ but heavily affected by the armed conflict in progress. The law of neutrality becomes operative at the outbreak of an international armed conflict and ceases to apply upon its termination. It entails two fundamental duties for neutral States: abstention from participating in the conflict and impartiality (namely, equal treatment) towards both belligerents. This branch of the law is customary law that has crystallized by the turn of the 20th century and is codified in the Hague Conventions V and XIII of 1907 that are still in force. It is confirmed by State practice in the form of Military Manuals of national armed forces, by judicial decisions, non-binding ‘soft law’ texts and the Commentaries on Geneva Conventions I and II.
III. The Justification Offered for Military Assistance to Ukraine
The States that provide military assistance to Ukraine do so openly and have justified their conduct by arguing that it aims to assist the victim of aggression to exercise its individual right of self-defense to repel an armed attack. There is remarkable consistency in the relevant statements by the EU, the USA, the UK and Germany. It is interesting that the assisting States do not invoke the right of collective self-defense, as this is a ground enabling the lawful use of force and would as a matter of principle make these States parties to the conflict. Indeed, it is significant that they have not notified the UN Security Council of acting in collective self-defense and they stress that they do not participate in the conflict. Moreover, they do not appear to rely on countermeasures as a ground precluding wrongfulness even though Articles 48 (1) and 54 of ARSIWA might appear to be applicable. They use language reminiscent of ‘qualified neutrality’ but their argument is not in the context of the law of neutrality but rather of collective security. They strongly emphasize the aggressive use of force by Russia and they view the exercise of the right of individual self-defense by Ukraine not strictly as a use of force to repel an armed attack but rather as a force to uphold the principles of the UN Charter. Their statements at the SC and the 11th Special Emergency Session of the GA elevate Article 51 to a principle of the UN even though it does not appear in Article 2 of the Charter. In other words, it appears that the inability to activate the SC because of the veto of Russia as a permanent member and a possible lack of political will to recommend enforcement action under the GA ‘Uniting for Peace’ Special Emergency procedure has led them to use material support of individual self-defense as a substitute for addressing the aggression of a SC permanent member. By opting for this line of legal reasoning the assisting States appear to have abandoned reliance on the concept of ‘qualified neutrality’.
IV. ‘Qualified Neutrality’
The concept means that a State not participating in an armed conflict is neutral. However, in contract to the traditional doctrine of neutrality, under qualified neutrality the non-participating state has only one duty, namely to abstain from participating in hostilities. Under this doctrine, neutral states have the right to dispense with the duty of impartiality. As such, they can assist the belligerent with a ‘just cause’ (in the Grotian tradition), namely a state that in the Charter context is using force in self-defense against foreign aggression. This was articulated by Sir Hersch Lauterpacht in legal advice to the US government at the time the USA was neutral in the early stages of World War II (1939-1941). ‘Qualified neutrality’ allowed the USA to assert continuing neutrality by restricting its obligations as a neutral to not actively participating in hostilities and placating a pro-neutrality domestic constituency, while at the same time discriminating in favor of the victim of aggression. This became official US policy and served as the basis of the ‘Lend-Lease’ of war matériel to the UK. However, it was asserted as a right (not a duty incumbent on every State to address a violation of the prohibition of the use of force) and, most important, it was not opposable to the aggrieved belligerent. Thus, Nazi Germany after months of US provision of weapons to the UK declared war on the USA by invoking the systematic violation of the law of neutrality. Decades later, during the Iran-Iraq war the USA adopted a similar stance of ‘qualified neutrality’ towards Iraq even though the latter initiated the conflict.
Qualified neutrality is unreservedly admitted in the UK Military Manual (paras 1.42-1.43); it is also admitted in the US Military Manual but it is pointed out that it is surrounded by controversy (para 15.2.2). As the law of armed conflict applies in its entirety irrespective of the legality of resort to force (Additional Protocol I, 1977, Preamble, para 5) that initiated the conflict so it is with the law of neutrality for third States. According to Bothe neutrality is not optional and does not defer to self-defense. However, a State-member of the UN has the duty to assist the organization in implementing enforcement measures against a State (Articles 2(5), 25, 103 UN Charter). Thus, it is only on the basis of express treaty obligation that qualified neutrality is admissible whereas it is doubtful whether it is part of customary law.
There are duties under the law of neutrality that have been breached to the benefit of Ukraine. The obligation not to provide weapons and funds has not been observed by the USA, the UK and the EU/NATO member States (except Hungary). It must be stressed that weapons and funds have been provided by the governments of these States and not by private individuals or companies – the latter contingency not constituting a violation of the law of neutrality (Article 7 common to Hague Conventions V and XIII, 1907). At the same time, NATO members have declined the imposition of a no-fly zone. Also, there have been reports that the Ukrainian armed forces have received targeting intelligence (allegedly by the USA) that has allowed them to inflict debilitating strikes against the Russian army and navy, the most spectacular of which have been the killing of 12 Russian army generals and the sinking of the battle cruiser ‘Moskva’ in the Black Sea. Commentators have presented this provision of intelligence as lawful on the basis of the law of neutrality receding before a grave violation of the prohibition of the use of force. However, the US government has denied these reports. This appears to indicate that in their view the passing of such intelligence would be direct participation in the conflict and a breach of the ‘qualified neutrality’ they purport to adopt.
V. The Response of the Aggrieved Belligerent
The two 1907 Hague Conventions on the law of neutrality do not contain specific provisions clarifying the circumstances in which violations of neutral obligations amount to participation in the conflict and identifying who gets to decide whether this is the case. Whereas the law stipulates that the violation by a belligerent of a neutral State’s territorial integrity gives the latter the right to repel it by force without losing neutral status, the reverse situation is left to the discretion of the aggrieved belligerent. Thus, it has the right to address violations of the law of neutrality as an injured party on the basis of the law on State responsibility and resort to protest, demand the cessation of the breach, take non-forcible countermeasures, or claim compensation. In case the breach of neutrality consists in the direct participation in hostilities (either by sending its armed forces to fight alongside one of the belligerents or by placing its territory as a base of operations at the disposal of a belligerent) the neutral becomes a belligerent; but anything short of this largely falls within the discretion of the aggrieved belligerent. It is thus to be expected that systematic and escalating provision of assistance in matériel, funds, intelligence is likely to be treated as participation in the conflict.
In the case of Ukraine, the Russian Federation has protested at the assistance provided to its adversary and warned of consequences, without specifying what these could be. It appears that Russia has managed to neutralize a large part of the weapons provided on Ukrainian territory. Beyond this, Russia is systematically using the UN SC as the forum to denounce the provision of assistance to Ukraine. It has called eight meetings of the SC since September 2022 to discuss ‘threats to international peace and security’ because of the provision of arms to Ukraine. (here, here, here, here, here, here, here and here) In the course of the debates Russia has asserted that the provision of weapons contributes to the escalation of the conflict, it creates a risk of weapons diversion to organized armed groups and expressly accused the assisting States of waging a ‘proxy war’ against it. Moreover, on two occasions (here, here) it explicitly invoked the law of neutrality and accused assisting States of violating it. The Latin American and African members of the SC, as well as China, also pointed at the risk of escalation of the conflict and weapons diversion to armed groups. As for the assisting States they strongly deny that are parties to the conflict; they strongly assert a right to assist a victim of aggression exercise its right of individual self-defense.
The conflict in Ukraine has rekindled the academic debate on the admissibility of qualified neutrality discriminating in favor of a victim of aggression. However, it occupies very small part in State practice. It is only Russia that has expressly invoked violations of the law of neutrality by the States providing weapons to Ukraine. For their part they asserted a right to assist the victim of aggression to exercise its right of self-defense as an act upholding the principles of the UN Charter. A right of qualified neutrality is totally absent in their statements. As a result, this practice is totally devoid of opinio juris in support of a customary law right of qualified neutrality. This appears to leave the traditional law of neutrality valid and the admissibility of qualified neutrality a subject of continuing academic debate.