In our February 2015 blog contribution, Ted van Baarda gives you some reflections on the meaning of the term “Neutrality” for the laws of war and its connection to the moral justification of war. His contribution here is an abbreviated version of a speech that he held on November 14, 2014, at the conference “The illusion of the peace disturbed. The Peace Palace and the First World War” at the Peace Palace in The Hague.


 

Neutrality in the laws of war – a matter of ‘stille sitzen’?

By: Ted van Baarda Ted van Baarda

 

Now that we are marking the centenary of the First World War, it is surprising to see how brief the period of the apogee of the laws of state neutrality has been. The Paris Declaration of 1856 is one of the first multilateral instruments realising neutrality in international law. In 1907, the cornerstone was placed. Two multilateral treaties on neutrality were adopted at the Second Hague Peace Conference. Following the invasion of neutral Belgium in the Autumn of 1914, the apogee ended. Thus, the apogee of the laws of neutrality lasted, at best, slightly more than half a century, and perhaps only seven years. Nonetheless, they have been influential.

Doubts concerning their moral justification have never been far away. They never emancipated entirely from Just War Tradition which emphasises a just cause. Illustrative is the comment of the Cambridge lawyer John Westlake in 1913, that there is no duty of a state to maintain neutrality when carnage takes place on its doorstep: “Neutrality is not morally justifiable unless intervention in war is unlikely to promote justice, or could do so only at the ruinous cost of the neutral”. Another lawyer, Phillip Jessup, writing in 1936, was more ambiguous. He distanced himself from the criterion of a just cause: “Of all the clichés which infect patriotic exhortations, the most subtly poisonous is that which calls the war in progress (…) ‘different from all other wars’, a war for ‘right and justice’ (…) involving ‘no base or selfish motive’.” Jessup adds however that the Covenant of the League of Nations justifies partiality against a state that violates the Covenant. Thus, the collective judgement of the League has been “deemed to excuse what would otherwise have been breaches of neutrality.” His words may just as well apply to the Charter of the United Nations today.

Two tentative conclusions can be drawn:
1)    the laws of neutrality were a secure body of law until the First Word War;
2)    the moral justification of the laws of neutrality was ambiguous

The word neutrality has been derived from the Latin neuter, meaning neither-nor. Neutrality can be defined as a phenomenon which, within a system of oppositions, does not possess any of the characteristics of the elements which are in opposition. For instance, a neutral particle is a particle without electrical charge. In moral philosophy, neutrality concerns both the renunciation of value judgements, as well as the effort to avoid that one becomes oneself the object of value judgements. Neutrality is not a moral value. It does not assist Man in distinguishing good from evil. Neutrality can serve any motive, whether “high or low”. The neither-nor characteristic of neutrality lies uncomfortable with the value of integrity: integrity demands, among others, that one is prepared to stand up for something, for deeply held values, the loss of which would entail the loss of the distinction between good and evil all together. This in turn, would raise uncomfortable questions about our humanity, as many moral philosophers argue that the ability to distinguish good from evil is one of the hallmarks that makes us human. By contrast, in international law, neutrality designates the legal status of a state which does not participate in the armed conflict which is waged between other states.

The word neutrality cannot be traced further back than the late XVth century. Before that one finds terms as:

  • stille sitzen (to sit still);
  • unpartyschung (impartiality);
  • guerrae abstinentia (abstinence from war).

In the eighteenth century Cornelis Bynkershoek retorted Hugo Grotius’ views on neutrality. Bynkershoek was the first to argue that “a neutral has nothing to do with the justice or injustice of war, it is not for him to sit as judge between friends who are at war with each other, and to give or deny more or less to the one or the other.” When neutrality could thus be detached from the Just War Tradition it could become, in law at least, a tenable position.

Traditionally, neutrality is the prerogative of states. The neutral status of a state does not prohibit the subjects of that state from taking a political stance. Neither do the two Hague Conventions on Neutrality of 1907 prohibit individuals of neutral states to trade with either – or both – belligerents for a profit. The question whether such profits are morally praiseworthy arose only briefly before the First World War. After the Second World War the issue resurfaced in the context of Jewish owned property that had been looted by the Nazi’s.

One of the few moral philosophers to discuss the concept of state neutrality is Michael Walzer. He rejects Westlake’s argument that neutrality is not morally justifiable when carnage takes place on its doorstep. Intervention by a neutral state in a war will entail the death of a number of its own soldiers. A neutral state cannot be required, as Walzer puts it: “to calculate as if every human life carries the same moral weight. Their lives [i.e. the lives of its soldiers – TvB] are not international resources to be distributed in war so as to balance the risks or to reduce the losses of other people.” Walzer employs the consequentionalist argument of the national interest.

Neutrality is not the same as indifference. One can be neutral vis-à-vis the political issues that keep the warring parties apart, while remaining sensitive to the troubles of those who suffer from the violence. Stille sitzen does not require that either states or individuals should remain callous. When Henri Dunant witnessed the Battle of Solferino, stille sitzen was not on his mind – on the contrary. Dunant’s act of entering the battlefield had profound moral and legal implications. By doing what he did, he relaxed the sensitive distinction between killing and letting die. He did so by employing the principle of beneficence. Under the concept of state neutrality one could argue that stille sitzen provides an impetus not to enter the battlefield and, by implication, to let the victims die. The principle of beneficence offers a different perspective. Since the principle of beneficence requires one to act, rather than to refrain from acting, it is at odds with stille sitzen. While little agreement exists on the question whether beneficence represents an obligation or merely an ideal, many humanitarian fieldworkers find a sense of purpose in life by interpreting the principle of beneficence in its most demanding form: the current Humanitarian Charter speaks of a “humanitarian imperative” – a phraseology which is reminiscent of Immanuel Kant.
Sitting on a par with state neutrality, humanitarian neutrality provided, over time, a different justification of neutrality: one could be active on the battlefield without interfering in military operations. It provided a stimulus to the idea that the moral weight of each human life was equal, even if that life was of a different nationality than one’s own. The concept of universality was no longer a theory of philosophers without any relevance “on the ground”. It became a life-saving reality. Over time, a body of international law would emerge in which, according to ICTY in the Tadić case, “a state-sovereignty oriented approach has been gradually supplanted by a human being oriented approach.”

In conclusion, Bynkershoek was correct in detaching neutrality from the Just War Tradition. However, wars without moral justifications do not exist. Even when the laws of neutrality are detached, one should tread carefully. The divisive issue of the just cause is lurking around the corner. Thus, the discussions that took place before and after the Great War can been seen as a warning from the past.


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