CHAPTER 9 NEUTRALITY Section 1. GENERAL 512. Definition Traditionally, neutrality on the part of a State not a party to the war has consisted in refraining from all participation in the war, and in preventing, tolerating, and regulating certain acts on its own part, by its nationals, and by the belligerents. It is the duty of belligerents to respect the territory and rights of neutral States. 513. Neutrality Under the Charter of the United Nations In the event of any threat to the peace, breach of the peace, or act of aggression, the Security Council of the United Nations is authorized, under Articles 39 through 42 of the Charter, to make recommendations, to call for the employment of measures short of force, or to take forcible measures to maintain or restore international peace and security. Measures short of force or force itself may also be employed in pursuance of a recommendation of the General Assembly of the United Nations. Although these provisions of the Charter have not made it impossible for a State to remain neutral, the obligations which the Charter imposes have to a certain extent qualified the rights of States in this respect. For example, if a State is called upon, under Articles 42 and 43 of the Charter, to take military action against an aggressor, that State loses its right to remain neutral but actually loses its neutrality only to the extent that it complies with the direction of the Security Council. A military commander in the field is obliged to respect the neutrality of third States which are not allied with the United States in the conduct of hostilities and are not violating their duty of neutrality toward this country, except to the extent that the State concerned has expressly qualified its neutrality. 514. Notification of State of War to Neutrals a. Treaty Provisions. See Articles 2 and 3, H. III (pars. 21 and 22). b. Proclamations of Neutrality. When war occurs, neutral States usually issue proclamations of neutrality, in which they state their determination to observe the duties of neutrality and warn their nationals of the penalties they incur for joining or assisting a belligerent. 515. Inviolability of Territory a. Treaty Provision. The territory of neutral Powers is inviolable. (H. V, art. 1.) b. Application of Rule. The foregoing rule prohibits any unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over such areas by troops or instrumentalities of war. If harm is caused in a neutral State by the unauthorized entry of a belligerent, the offending State may be required, according to the circumstances, to respond in damages. 516. Movements of Troops and Convoys of Supplies Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power. (H. V, art. 2.) 517. Convoys of Munitions and Supplies A distinction must be drawn between the official acts of the belligerent State in convoying or shipping munitions and supplies through neutral territory as part of an expedition and the shipment of such supplies by private persons. The former is forbidden while the latter is not. 518. Neutral State Must Prohibit Acts On Its Own Territory A neutral Power must not allow any of the acts referred to in Articles II to IV to occur on its territory. It is not called upon to punish acts in violation of its neutrality unless the said acts have been committed on its own territory. (H. V, art. 5.) 519. Resistance to Violations of Neutrality a. Treaty Provision. The fact of a neutral Power resisting, even by force, attempts to violate its neutrality cannot be regarded as a hostile act. (H. V, art. 10.) b. Patrolling the Frontier. In order to protect its neutrality, a State whose territory is adjacent to a theater of war normally mobilizes a portion of its forces to prevent troops of either belligerent from entering its territory, to intern such as may be permitted to enter, and generally to carry out its duties of neutrality. 520. Effect of Failure to Prevent Violation of Neutrality by Belligerent Troops Should the neutral State be unable, or fail for any reason, to prevent violations of its neutrality by the troops of one belligerent entering or passing through its territory, the other belligerent may be justified in attacking the enemy forces on this territory. 521. Offenses Against Neutrality Defined by Statute Supplementing the rules of international law, there are certain statutes of the United States that define offenses against neutrality and prescribe penalties therefor, some of which are effective only during a war in which the United States is neutral, and others of which are effective at all times (see 18 U. S. C. 956-968, 22 U.S. C. 441-457, 461-465). The enforcement of these statutes devolves primarily upon the civil authorities, but under certain circumstances land or naval forces may be employed for that purpose (see, e. g., 22 U. S. C. 461). Section II. RECRUITING IN NEUTRAL TERRITORY 522, Forming Corps of Combatants and Recruiting Forbidden a. Treaty Provision. Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents. (H. V, art. 4.) b. Application of Rule. The establishment of recruiting agencies, the enlistment of men, the formation and organization of hostile expeditions on neutral territory, and the passage across its frontiers of organized bodies of men intending to enlist are prohibited. c. Personnel of Voluntary Aid Societies. This prohibition does not extend to medical personnel and units of a yoluntary aid society duly authorized to join one of the belligerents. (See GWS, art. 27; par. 229 herein.) 523. Responsibility as to Individuals i. or The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents. (H. V, art. 6.) 524. Single Persons and Organized Bodies a. Individual Persons Crossing the Frontier. The prohibition in Article 4, H. V (par. 522), is directed against organized bodies which only require to be armed to become an immediate fighting force. Neutral States are not required to enact legislation forbidding their nationals to join the armed forces of the belligerents. Individuals crossing the frontier singly or in small bands that are unorganized similarly create no obligation on the neutral State. The foregoing rules do not, however, permit a State professing to be neutral to send regularly constituted military units across the frontier in the guise of "volunteers" or small unorganized bands. b. Nationals of Belligerent Not Included. Nationals of a belligerent State are permitted freely to leave neutral territory to join the armies of their country. Section III. SUPPLIES AND SERVICES FROM NEUTRAL TERRITORY 525. Neutral Not Bound to Prevent Shipment of Supplies A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet. (H. V, art. 7.) 526. Obligations of Neutral State as to Supplies Although a neutral State is not required to prohibit the shipment by private persons of supplies or munitions of war, the neutral State, as such, is prohibited from furnishing such supplies or munitions and from making loans to a belligerent. It is also forbidden to permit the use of its territory for the fitting out of hostile expeditions. 527. Commercial Transactions Not Prohibited Commercial transactions with belligerents by neutral corporations, companies, citizens, or persons resident in neutral territory are not prohibited. A belligerent may purchase from such persons supplies, munitions, or anything that may be of use to an army or fleet, which can be exported or transported without involving the neutral State. 528. Use of Neutral Territory for Establishment of Radio and Other Communications Facilities Belligerents are likewise forbidden: a. To erect on the territory of a neutral Power a wireless telegraphy station or any apparatus for the purpose of communicating with belligerent forces on land or sea; b. To use any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages. (H. V, art. 3.) 529. Means of Communication A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to Companies or private individuals. (H. V, art. 8.) 530. Impartiality in Allowing Use of Communication Facilities The liberty of a neutral State, if it so desires, to transmit messages by means of its telegraph, telephone, cable, radio, or other telecommunications facilities does not imply the power so to use them or to permit their use as to lend assistance to the belligerents on one side only. 531. Impartiality Every measure of restriction or prohibition taken by a neutral Power in regard to the matters referred to in Articles VII and VIII must be impartially applied by it to both belligerents. A neutral Power must see to the same obligation being observed by Companies or private individuals owning telegraph or telephone cables or wireless telegraphy apparatus. (H. V, art. 9.) Section IV. INTERNMENT OF BELLIGERENT FORCES AND TENDING OF 532. Internment A neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war. It may keep them in camps and even confine them in fortresses or in places set apart for this purpose. It shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission. (H. V, art. 11.) 533. Duty of Neutral State A neutral is not bound to permit belligerent troops to enter its territory. On the other hand, it may permit them to do so without violating its neutrality, but the troops must be interned or confined in places designated by the neutral. They must be disarmed and appropriate measures must be taken to prevent their leaving the neutral country. In those cases in which the States concerned are parties to GPW, Article 4, paragraph B(2), thereof requires that such persons, provided they are otherwise entitled to be treated as prisoners of war, are, as a minimum but subject to certain exceptions, to receive the benefit, of treatment as prisoners of war under GPW (see par. 61). 534. Neutral Can Impose Terms If troops or soldiers of a belligerent are permitted to seek refuge in neutral territory, the neutral is authorized to impose the terms upon which they may do so. In case of large bodies of troops seeking refuge in neutral territory, these conditions will usually be stipulated in a convention drawn up by the representatives of the neutral power and the senior officer of the troops. 535. Parole by Neutral Officers and men interned in a neutral State may in the discretion of that State be released on their parole under conditions to be prescribed by the neutral State. If such persons leave the neutral State in violation of their parole, the State in whose armed forces they serve is obliged to return them to the neutral State at its request. |