PART III USAGES OF WAR AS REGARDS NEUTRAL STATES

What neutrality means.

By the neutrality of a State is to be understood non-participation in the war by third parties; the duly attested intention not to participate in the conduct of the war either in favor of, or to the prejudice of, either one of the two belligerents. This relationship gives rise in the case of the neutral State to certain rights but also to fixed duties. These are not laid down by international regulations or international treaties; we have therefore here also to do with “Usages of War.”

A neutral cannot be all things to all men; therefore he must be nothing to any of them.

What is principally required of a neutral State is equal treatment of both belligerents. If, therefore, the neutral State could support the belligerents at all, it would have to give its support in equal measure to both parties. As this is quite impossible and as one of the two parties—and probably every one of them—would regard itself as injured in any case, it therefore follows as a practical and empirical principle “not to support the two [i.e., either or both] belligerents is the fundamental condition of neutrality.”

But there are limits to this detachment.

But this principle would scarcely be maintained in its entirety, because in that case the trade and intercourse of the neutral State would in some circumstances be more injured than that of the belligerents themselves. But no State can be compelled to act against its own vital interests, therefore it is necessary to limit the above principle as follows: “No neutral State can support the belligerents as far as military operations are concerned. This principle sounds very simple and lucid, its content is, however, when closely considered very ambiguous and in consequence the danger of dissensions between neutral and belligerent States is very obvious.”

In the following pages the chief duties of neutral States are to be briefly developed. It is here assumed that neutrality is not to be regarded as synonymous with indifference and impartiality towards the belligerents and the continuance of the war. As regards the expression of partizanship all that is required of neutral States is the observance of international courtesies; so long as these are observed there is no occasion for interference.

Duties of the neutral.

The chief duties of neutral States are to be regarded as:

Belligerents must be warned off.

1. The territory of neutral States is available for none of the belligerents for the conduct of its military operations.109 The Government of the neutral State has therefore, once War is declared, to prevent the subjects of both parties from marching through it; it has likewise to prevent the laying out of factories and workshops for the manufacture of War requisites for one or other of the parties. Also the organization of troops and the assembling of “Freelances” on the territory of neutral States is not allowed by the law of nations.110

The neutral must guard its inviolable frontiers. It must intern the Trespassers.

2. If the frontiers of the neutral State march with those of the territory where the War is being waged, its Government must take care to occupy its own frontiers in sufficient strength to prevent any portions of the belligerent Armies stepping across it with the object of marching through or of recovering after a Battle, or of withdrawing from War captivity. Every member of the belligerent Army who trespasses upon the territory of the neutral State is to be disarmed and to be put out of action till the end of the War. If whole detachments step across, they must likewise be dealt with. They are, indeed, not prisoners of War, but, nevertheless, are to be prevented from returning to the seat of War. A discharge before the end of the War would presuppose a particular arrangement of all parties concerned.

If a convention to cross over is concluded, then, according to the prevalent usages of War, a copy of the conditions is to be sent to the Victor.111 If the troops passing through are taking with them prisoners of War, then these are to be treated in like fashion. Obviously, the neutral State can later demand compensation for the maintenance and care of the troops who have crossed over, or it can keep back War material as a provisional payment. Material which is liable to be spoilt, or the keeping of which would be disproportionately costly, as, for example, a considerable number of horses, can be sold, and the net proceeds set off against the cost of internment.

Unneutral service.

The “sinews of war”—loans to belligerents.

3. A neutral State can support no belligerent by furnishing military resources of any kind whatsoever, and is bound to prevent as much as possible the furnishing of such wholesale on the part of its subjects. The ambiguity of the notion “Kriegsmittel” has often led to complications. The most indispensable means for the conduct of a War is money. For this very reason it is difficult to prevent altogether the support of one or other party by citizens of neutral States, since there will always be Bankers who, in the interest of the State in whose success they put confidence, and whose solvency in the case of a defeat they do not doubt, will promote a loan. Against this nothing can be said from the point of view of the law of nations; rather the Government of a country cannot be made responsible for the actions of individual citizens, it could only accept responsibility if business of this kind was done by Banks immediately under the control of the State or on public Stock Exchanges.

Contraband of War.

It is otherwise with the supply of contraband of war, that is to say, such things as are supplied to a belligerent for the immediate support of war as being warlike resources and equipment. These may include:

(a) Weapons of war (guns, rifles, sabers, etc., ammunition, powder and other explosives, and military conveyances, etc.).

(b) Any materials out of which this kind of war supplies can be manufactured, such as saltpeter, sulphur, coal, leather, and the like.

(c) Horses and mules.

(d) Clothing and equipment (such as uniforms of all kinds, cooking utensils, leather straps, and footwear).

(e) Machines, motor-cars, bicycles, telegraphic apparatus, and the like.

Good business.

All these things are indispensable for the conduct of war, their supply in great quantities means a proportionately direct support of the belligerent. On the other hand, it cannot be left out of account that many of the above-mentioned objects also pertain to the peaceable needs of men, i.e., to the means without which the practise of any industry would be impossible, and the feeding of great masses of the population doubtful. The majority of European States are, even in time of peace, dependent on the importation from other countries of horses, machines, coal, and the like, even as they are upon that of corn, preserved foods, store cattle, and other necessaries of life. The supply of such articles by subjects of a neutral State may, therefore, be just as much an untainted business transaction and pacific, as a support of a belligerent. The question whether the case amounts to the one or the other is therefore to be judged each time upon its merits. In practise, the following conceptions have developed themselves in the course of time:

Foodstuffs.

(a) The purchase of necessaries of life, store cattle, preserved foods, etc., in the territory of a neutral, even if it is meant, as a matter of common knowledge, for the revictualing of the Army, is not counted a violation of neutrality, provided only that such purchases are equally open to both parties.

Contraband on a small scale.

(b) The supply of contraband of war, in small quantities, on the part of subjects of a neutral State to one of the belligerents is, so far as it bears the character of a peaceable business transaction and not that of an intentional aid to the war, not a violation of neutrality. No Government can be expected to prevent it in isolated and trivial cases, since it would impose on the States concerned quite disproportionate exertions, and on their citizens countless sacrifices of money and time. He who supplies a belligerent with contraband does so on his own account and at his own peril, and exposes himself to the risk of Prize.112

And on a large scale.

(c) The supply of war resources on a large scale stands in a different position. Undoubtedly this presents a case of actual promotion of a belligerent’s cause, and generally of a warlike succor. If, therefore, a neutral State wishes to place its detachment from the war beyond doubt, and to exhibit it clearly, it must do its utmost to prevent such supplies being delivered. The instructions to the Customs authorities must thus be clearly and precisely set out, that on the one hand they notify the will of the Government to set their face against such wanton bargains with all their might, but that on the other, they do not arbitrarily restrict and cripple the total home trade.

The practise differs.

In accordance with this view many neutral States, such as Switzerland, Belgium, Japan, etc., did, during the Franco-Prussian War, forbid all supply or transit of arms to a belligerent, whilst England and the United States put no kind of obstacles whatsoever in the way of the traffic in arms, and contented themselves with drawing the attention of their commercial classes to the fact that arms were contraband, and were therefore exposed to capture on the part of the injured belligerent.113

It is evident, therefore, that the views of this particular relation of nations with each other still need clearing up, and that the unanimity which one would desire on this question does not exist.

Who may pass—the Sick and the Wounded.

4. The neutral State may allow the passage or transport of wounded or sick through its territory without thereby violating its neutrality; it has, however, to watch that hospital trains do not carry with them either war personnel or war material with the exception of that which is necessary for the care of the sick.114

Who may not pass—Prisoners of War.

5. The passage or transport of prisoners of war through neutral territory is, on the other hand, not to be allowed, since this would be an open favoring of the belligerent who happened to be in a position to make prisoners of war on a large scale, while his own railways, water highways, and other means of transport remained free for exclusively military purposes.

These are the most important duties of neutral States so far as land warfare is concerned. If they are disregarded by the neutral State itself, then it has to give satisfaction or compensation to the belligerent who is prejudiced thereby. This case may also occur if the Government of the neutral State, with the best intentions to abstain from proceedings which violate neutrality, has, through domestic or foreign reasons, not the power to make its intentions good. If, for example, one of the two belligerents by main force marches through the territory of a neutral State and this State is not in a position to put an end to this violation of its neutrality, then the other belligerent has the right to engage the enemy on the hitherto neutral territory.

Rights of the neutral.

The duties of neutral States involve corresponding rights, such as:

The neutral has the right to be left alone.

1. The neutral State has the right to be regarded as still at peace with the belligerents as with others.

Neutral territory is sacred.

2. The belligerent States have to respect the inviolability of the neutral and the undisturbed exercise of its sovereignty in its home affairs, to abstain from any attack upon the same, even if the necessity of war should make such an attack desirable. Neutral States, therefore, possess also the right of asylum for single members or adherents of the belligerent Powers, so far as no favor to one or other of them is thereby implied. Even the reception of a smaller or larger detachment of troops which is fleeing from pursuit does not give the pursuer the right to continue his pursuit across the frontier of the neutral territory. It is the business of the neutral State to prevent troops crossing over in order to reassemble in the chosen asylum, reform, and sally out to a new attack.

The neutral may resist a violation of its territory “with all the means in its power.”

3. If the territory of a neutral State is trespassed upon by one of the belligerent parties for the purpose of its military operations, then this State has the right to proceed against this violation of its territory with all the means in its power and to disarm the trespassers. If the trespass has been committed on the orders of the Army Staff, then the State concerned is bound to give satisfaction and compensation; if it has been committed on their own responsibility, then the individual offenders can be punished as criminals. If the violation of the neutral territory is due to ignorance of its frontiers and not to evil intention, then the neutral State can demand the immediate removal of the wrong, and can insist on necessary measures being taken to prevent a repetition of such contempts.

Neutrality is presumed.

4. Every neutral State can, so long as it itself keeps faith, demand that the same respect shall be paid to it as in time of peace. It is entitled to the presumption that it will observe strict neutrality and will not make use of any declarations or other transactions as a cloak for an injustice against one belligerent in favor of the other, or will use them indifferently for both. This is particularly important in regard to Passes, Commissions, and credentials issued by a neutral State.115

The property of neutrals.

5. The property of the neutral State, as also that of its citizens, is, even if it lies within the seat of war, to be respected so far as the necessity of war allows. It can obviously be attacked and even destroyed in certain circumstances by the belligerents, but only if complete compensation be afterwards made to the injured owners. Thus—to make this clear by an example from the year 1870—the capture and sinking of six English colliers at Duclaix was both justified and necessary on military grounds, but it was, for all that, a violent violation of English property, for which on the English side compensation was demanded, and on the German side was readily forthcoming.

Diplomatic Intercourse.

6. Neutral States may continue to maintain diplomatic intercourse with the belligerent Powers undisturbed, so far as military measures do not raise obstacles in the way of it.

THE END