McNair Paper Number 33 Chapter 1, January 1995
Better understanding of the requirements of neutrality and the dangers of unneutral U.S. policy can improve responsiveness and mission effectiveness in some critical situations and provide information to decisionmakers to facilitate the safe and effective employment of naval forces as an instrument of U.S. policy. To this end arose the desire to explore issues of international law affecting operations of the U.S. Navy at sea, which in turn resulted in this book.
Naval forces are recruited and trained, and their ships and equipment are procured and maintained, to implement and support the policy decisions of the United States. The intent here is to provide a better understanding of the legal environment that surrounds and is affected by these policy decisions, in order to improve the ability to assess future situations and their attendant costs and risks--thus enhancing the safety and effectiveness of our valuable and limited naval assets. To do this it is necessary to review the legal issues involved in past situations to broaden the understanding of those involved with naval forces. This improved perspective should assist these participants to make better informed and more effective naval policy decisions and in turn, provide clearer guidance for the at-sea commander.
If this work facilitates the performance of naval forces in their conduct of peacetime missions or their preparation for combat, or if only a list of important generic questions is developed by decisionmakers, there is value to this effort. And if the operating forces are made safer because of this study, there could be no higher reward.
The analyses focus upon the relationship of the law of neutrality to the actions of the United States in a series of situations that stretch back to the 1890s. Its purpose is to show that the interests of the United States repeatedly have required the use of naval forces as a tool of U.S. policy in areas where combat was already underway or the opening of hostilities was imminent.
The behavior of the United States frequently did not comply with the impartiality that, despite the major changes in the international system over the past 100 years, remains an obligation of neutrality. Often, the partiality of the United States drew U.S. forces into the conflict or contributed to that end by precipitating mutual self-defense situations or actions in defense of conflicting rights.(Note 2)
Decisions taken in support of U.S. interests and policy objectives produced this pattern of behavior--but the risks attendent to it have increased. Now more than ever before, U.S. naval policy must be shaped to also consider other states' assessments of the legal situation. This is an important factor today in risk analysis, mission planning, and guidance to naval force commanders.
The historical review of U.S. practice regarding the law of neutrality is not supposed to be a comprehensive treatment of all U.S. actions but is intended solely to present an extensive, protracted, and consistent body of evidence to support the legal and policy analysis herein.
Naval planners must examine the legal environment in which our ships might operate, and this study continues what the Navy has always done to improve future operations:
Understand the operating environment and seek to exploit its benefits and minimize its hazards
Review operations and identify "lessons learned"
Examine innovations, discover their applicability to the profession, and develop their optimal use.
Implementing a policy partial to one side in a conflict signals a change in the legal environment, much as a sudden drop in barometric pressure indicates a change in weather. Understanding this aspect of the law can be an important factor for making decisions regarding naval forces. It can also provide an essential warning to them, because when partiality is appropriate to U.S. policy objectives, naval forces in proximity to another nation's war can be at risk. Further, a review of U.S. policy and practice in previous international situations in which the Navy played a role provides a clarity today that decisionmakers of the past did not enjoy. The "lessons learned" include the importance of considering the belligerent's view of U.S. actions under the law of neutrality, a perspective that illuminates the risks involved.
The consistent pattern of U.S. behavior shows that impartial conduct, the essence of neutrality, was either not possible or not the preferred option of the United States. This pattern of partiality now typifies U.S. practice, and it will likely continue. If this is true, innovations in operations, the law, and their interface are appropriate.
This work proceeds from two assumptions:
A review of historical events better enables us to predict the behavior of states in similar circumstances. Even where prediction is not possible, forces are at play which continue to influence future events and must be considered.
International law influences the formation and execution of foreign policy.
These assumptions do not mean the historian is tantamount to soothsayer(Note 3) or that states blindly obey international law. An examination of history reveals a pattern of responses to similar problems or situations; the pattern is evidence of a set of subtle priorities prevailing over more transient influences on the interests of statesmen or states. It is likely these priorities will again influence decisionmaking when circumstances approximate any historical precedent.
Whether international law drives the decision or not, it is almost always a factor in the decisionmaking process. Even when the issue or legal concept being considered is not uniformly acknowledged as law by all states, but merely as the reasonable expectation of other affected states, the very recognition of this expectation is evidence of the influence exerted. Disregarding international law has inescapable consequences,(Note 4) and while not always immediately perceptible, they are inevitable. The costs accruing to a state that ignores international law can span a broad spectrum, from a minimal loss of prestige or influence to use of force by affected states. It must be recognized that when the practice of states is, or is in the process of being, elevated to the status of law through consistent compliance or voluntary commitment, it also constitutes an expectation by the international community that cannot be ignored with impunity.(Note 5) Even when state practice constitutes a new precedent that might eventually modify customary international law, existing law is the baseline from which new law evolves, and it will be consciously considered in deciding to take the action that establishes the precedent. When positive (treaty) law is at issue, its influence is even greater because a state's good faith, its word, is unquestionably involved.
States are the actors in the international system. They design and implement the law. They are also the seat of what is accepted as international authority, so the way the distribution of authority in the current international political system affects behavior must also be considered. This authority defines the boundaries of outside influence on the internal events and processes of states and their willingness to undertake obligations to others. In sum, this authority constitutes the essence of a state's autonomy--its ability to make unfettered internal and external decisions. Actions taken in disregard of this distribution of authority are likely to prove futile or provoke unwanted and unhelpful reactions.(Note 6)
When involved in an armed conflict, this is the authority other states use to determine their rights and options to respond to perceived U.S. policy. They rely upon U.S. pronouncements, official and informal; pre-conceived notions of the U.S. agenda regarding their dispute and its resolution; and actions they interpret as intended to support and implement their view of U.S. policy. Further, the laws of war and neutrality proceed from the practice of states and represent a balance of rights and responsibilities. The logic underpinning these laws is sound, and actions defying that logic will bring responses. If it is not understood that the logic is being ignored, those responses may be unanticipated.
Using these assumptions as a point of departure, the nexus of the policy and legal processes mentioned above--and their pragmatic consequences when executing policy--are examined in this book.(Note 7) Key questions addressed are:
Can the United States reasonably expect to comply with strict neutrality in an interdependent world?
Will other states accept unneutral--or so-called non-belligerent--behavior by the United States while the nation asserts a neutral policy?
If not, what must the at-sea commander understand?
How can the at-sea commander better be supported regarding these questions?
In this century the United States became both economically and strategically interdependent with most of the rest of the world. Consequently, most armed conflicts arising since the Spanish-American War involved at least the peripheral interests of either the United States or an ally. This consistently resulted in the United States being unable to remain impartial, or at least in a decision that purposely or accidentally abandoned impartiality. The United States frequently articulated a neutral policy, meaning it would abstain from direct participation in the hostilities as a belligerent, but repeatedly executed a policy that did not meet the baseline criterion (impartiality) of the law of neutrality.(Note 8)
The rights and duties of neutrals and belligerents in time of armed conflict are not mere legalistic rhetoric--they represent a carefully balanced relationship in which neutrals do not interfere with the policy goals of belligerents in exchange for a broad immunity from the violence used to attain those goals by belligerents. Impartiality intends to prevent the actions of a neutral nation from giving unbalanced support to one belligerent at the expense of another. The law is the codification of sound policy decisions and the military principle of economy of force. Absent the law, the logical consequences would not be much different.
Partiality costs the United States some of the legal protections afforded a neutral nation. The initial impact of losing these protections frequently is negligible as belligerent parties choose not to exercise the full range of belligerent rights when such exercise would potentially convert an imperfect neutral to a confirmed and exceptionally powerful enemy. Put another way, the protection of law the United States surrendered from time to time through partiality was not immediately obvious, because it was replaced in practice by other protections. The preponderant military capability of the United States, and the perception by the aggrieved belligerent that U.S. national will would support its use, gave pause. The more an aggrieved belligerent has to lose, the longer and more carefully its leadership considers whether they should exercise the legal right of reprisal or otherwise react adversely to the unneutral U.S. action.
High-technology weaponry in the hands of potential adversaries now makes this seemingly inescapable partiality a greater risk for U.S. naval forces. The relationships requiring U.S. partiality and the availability of relatively inexpensive ship-killing (or at least mission-killing) weapons will increase throughout the foreseeable future. Concurrently, the protections substituted for the law in the past will become relatively more important and potentially less persuasive. Because the United States did not need to weigh these considerations as heavily in the past, there is reason to anticipate a period of adjustment, a period that will witness belligerent states (or other entities that may exercise belligerent rights) testing their increase in relative combat power against the willingness of the United States to respond in kind.(Note 9)
Before beginning the analysis, it is useful to explain the manner in which some terms are being used, in order to minimize ambiguity.
"Naval policy" cannot be assigned a precise definition; although used in many applications conveying the same general sense, it will often have shades of meaning. Here, "naval policy" describes the collective decisions, and the actions which result from their execution, affecting the employment, support, mobility options, and even procurement and outfitting of naval forces in peacetime. These decisions and actions do not always originate in the Department of the Navy; some are the purview of the President, both when acting as Commander-in-Chief and in his domestic and international political roles. Related to the President's sphere are matters decided or announced by certain Members of Congress or officials of the Departments of State, Defense, or Justice.
The relationships of these decisions and actions to naval forces may be intuitively obvious or exceptionally subtle; in some cases, the Department of the Navy initially may not even be aware of them. But, when the ability of the Navy to fulfill its missions in support of national policy in peace or national strategy in war is affected, or those missions are being fulfilled, naval policy is being made or executed.
Policy execution is often observed by other states while U.S. intentions may be both unknown and inconsequential; therefore, the behavior of the United States can be examined without always understanding what was intended. In some cases, it will be clear that behavior directly contradicted intended policy, and it is this U.S. behavior, and its impact upon the affected states' own national interests, by which those affected states will judge U.S. compliance with international law and their policy options to exercise rights under it.
While intention and stated policy are certainly mitigating factors in any assessment, they will be given weight proportionate to the credibility the United States enjoys in the state evaluating the actions. Equally important, U.S. action in large part determines other states' reactions. Simply put, other states respond based upon their perceptions of what the United States does and says, not what the President of the United States intends to do or means by what he says.(Note 11) Consequently, the term "U.S. policy" will be understood in this broad context.
The behavior of the United States results from priorities and patterns of decisionmaking it was compelled to respond and conform to (or at least repeatedly has) since this country assumed the role of a global power, roughly a century ago. These priorities and processes, however subtle, can be expected to continue to affect the execution of policy. Therefore, the behavior in previous cases helps to understand forces that may influence the actions of the United States in similar future situations.
In future conflicts, the consequences of actions that establish the partiality of the United States will prove more challenging to the commanders of naval forces in an increasingly dangerous operating environment. The ability to identify and understand the point at which partiality might affect the legal--and consequently the tactical--situation will make at-sea commanders more sensitive and alert, reducing the risk of these challenging situations.
Under international law, neutrality is simply the condition of a state or government which refrains from taking part, directly or indirectly, in a war between other powers. . . . It is in any case, unattainable for a great power in the modern world.(Note 12)
Before a reasonable assessment of neutral obligations can be pursued, it is necessary to examine briefly the legal concept of neutrality and the effect the practice of states may be having on this concept.
The United States began to exercise the role of world power about the time of the Spanish-American War. Examination of potential changes to the law of neutrality and the behavior of the United States in light of the law will therefore focus on events since the interests of the United States forced consideration of intervention into the civil war in Cuba.
"When Cicero wrote, inter arma silent legis, he emphasized [the] generally accepted antithesis between law and violence."(Note 13) If one wonders how a law can purport to regulate the brutal character of war, the answer is quite simple: it must. It must, for very practical reasons. The most basic reason was explained by Glaucon in Plato's "Republic":
When men have both done and suffered injustice and have had experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither; hence there arise laws and mutual covenants; and that which is ordained by law is termed by them lawful and just.(Note 14)
The "laws" that have been codified to regulate war's intensity and prevent its spread to neutrals are not always logical to the objective analyst, but they reflect what was thought possible and practical in their historical context. They are also the result of compromises that probably varied from what some might consider an ideal, morally just position in proportion to the relative power relationship, the basic motivation, and the skill and persuasiveness of negotiators, as perceived by the contending parties. By 1907 the traditional roles of sovereign states in time of armed conflict were codified to the extent that the rights and responsibilities of states were clearly articulated and broadly accepted. But changes in both the power relationships and perceptions of relative advantage, from the time of codification to the time of actual engagement of forces, resulted in less than scrupulous adherence to all the negotiated rules.
Legally, war was two isolated entities clashing to impose their wills upon one another, no matter how briefly; third states were considered neutral and were to have no direct or indirect part in the war.(Note 15) The law of war applied between belligerents and the law of neutrality applied between belligerents and neutrals.(Note 16) While the theory was clear, practice often involved different interpretations. In armed conflict such as insurrections and civil wars, respect for the laws of war, or the expectation of that respect, by states that found themselves so engaged, brought those laws into effect outside of the purely international construct.(Note 17)
The essence of the law of neutrality, codified in the Hague Conventions, is impartiality. This expectation of impartiality by the neutrals was based on one thing: their desire to stay out of the war.(Note 18) If their interests were involved in the war, states were expected to either become participants as belligerents or stand aside as a neutral and endure some damage to their interests to avoid the costs of war.
Neutrality certainly was not always viewed this way. Grotius saw war placing a demand on all states to serve justice and the responsibility to decide what course of action would best deliver that justice on their leaders. Therefore, in the early 17th century Grotius viewed the obligations of neutrals this way:
It is the duty of those, who profess neutrality in a war to do nothing towards increasing the strength of a party maintaining an unjust cause, nor to impede the measures of a power engaged in a just and righteous cause . . . in doubtful cases they ought to show themselves impartial.(Note 19)
In the centuries since, neutrality has come to be defined more narrowly.(Note 20) States are now given the choice of joining the war or not acting on their assessment of justice. (States frequently choose an unacceptable middle path). This seems a submission to power politics, but it does discourage the spread of war to other states, inhibits self-righteous interference in the affairs of others, and reduces the problems inherent in subjective assessments of "justice."
A belligerent cannot be expected to tolerate third states assisting his enemy without taking action against them. The narrower law of neutrality permits a belligerent to take action short of war against those states that do not join the war but behave in an "unneutral" manner. This may take several forms ranging from mere tense silence through diplomatic protest to armed reprisal. If the belligerent decides that these actions would prove ineffective, it may resort to a declaration of war or simply commence hostilities against the "unneutral" state. The form of reaction to violations of neutral duties selected depends upon the aggrieved nation's political assessment of whether the exercise of belligerent rights will deter future unneutral behavior or cause the transgressor to join the fighting. In practice, this reflects the belligerent's cost-benefit analysis of dealing with an additional enemy as distinguished from an "unneutral neutral".(Note 21)
As to the law of war at sea, unneutral service--that is, ignoring the neutral duty of impartiality--can stamp an individual vessel with hostile character. An unneutral vessel loses the protection afforded by neutrality to a degree roughly commensurate with the magnitude of its departure from impartiality. The ship could merely lose its contraband cargo or, in a more serious breach, could be taken into port and held over for adjudication in a Prize Court or, in the most extreme case, could even be destroyed.(Note 22) This could happen if, for example, instead of heaving to when ordered by a belligerent warship--seeking to exercise its right of visit and search--the unneutral vessel attempted to flee or run a blockade.
The decision to assert additional belligerent rights (beyond visit and search) in response to unneutral acts is supported by the law, but it is a policy decision that must consider the tactical and political situation. The key question is, can the belligerent better afford the unneutral support of its enemy or the risk of another belligerent joining the war?(Note 23)
During the time frame pertinent to this study, practice of states not complying with impartiality when neutrality was claimed was viewed as a departure from obligations, not as a reduction of the law's expectations.
The 1907 Hague Conventions and the 1909 Declaration of London, crafted to strengthen the force of the law of neutrality, expected impartiality. Even though many states later chose to act in an unneutral manner during World War I, this behavior was not seen as changing the fundamental requirements of the law of neutrality laid down in the Hague Conventions.(Note 24)
After the war, the Covenant of the League of Nations required states to take actions that in some cases seemed to make neutrality obsolete. But the Covenant bound only those states that became parties, and its sanctions were not applied in many cases--partly for lack of will and partly because the facts are never as clear as treaties assume.
The Convention on Maritime Neutrality was signed in Havana in 1928 and entered into force in 1931 (May 1932 for the United States). Its provisions still required impartiality of neutrals.(Note 25)
The experience of World War I did have some effect on the attitudes of international lawyers. In 1936 George Grafton Wilson offered the opinion, "An imperfect war might have as a corollary an imperfect neutrality."(Note 26) This might have alluded to some future exception but did not reflect contemporary acceptance of a legally defined "imperfect neutral."
As World War II became an inevitability, the pragmatic appeal of the protection offered by impartiality removed any ambiguities of interpretation, and attitudes were less speculative about the options available to avowed neutrals. In 1939, Payton Sibley Wild, Jr., wrote, "At the core of neutrality lies impartiality" and admitted "Any sort of unneutral conduct does open the way for reprisals by the injured belligerent."(Note 27)
While the law may have remained unchanged, the paradox persisted. Strictly impartial neutrality was an inherently illogical choice of the powerful nation whose interests were threatened-- but the cause of peace is sometimes best served by keeping the more powerful nations out of war. A powerful nation should have an option to protect its interests other than by becoming a belligerent and escalating the war, but the law persists unchanged, no matter how difficult it might be to comply with. Impartial neutrality, under the law, expects a state to "surrender certain rights not worth fighting for and prepare to fight for others . . . too vital to surrender."(Note 28) At the same time, however, the neutral state is required to defend its own territory, with force if necessary, against unneutral use by belligerents, even a belligerent it considers just (or might otherwise favor). Failing to deny such use of its territory gives rise to the right of reprisal in the offending belligerent's opponent. This presents yet another paradox because, at least in the eyes of some, "It would be the supreme folly to go to war to maintain your right to stay out of war."(Note 29) But staying out of war is not the right in question; sovereignty itself is violated if neutral territory is used by a belligerent to support its war aims. If such a violation goes unanswered, sovereignty could soon be at risk on a variety of counts.
Pragmatic evaluation reveals this dilemma will not be resolved by committing illogical acts but by assessing national interests. When the costs of being neutral no longer make sense, the time has arrived to abandon neutrality no matter how distasteful or dangerous this might prove, and this course of action was followed repeatedly by the United States.
Further, in today's world there is an expectation within the United States, and outside as well--at least among friendly states--that the United States will act in pursuit of justice even at the expense of impartiality. As was mentioned, however, in the past the imperatives dictating such partial actions were not always accompanied by a decision, an acknowledgment, or perhaps even a realization that the protections of neutrality were abandoned in the process. Therein lies the problem for naval forces. When change can be so subtle, will naval commanders be astute enough, or even well enough informed of events, to recognize when the United States might be perceived by belligerents as abandoning neutrality (or violating neutral obligations), whether that reflects intentions or not? This is critical because, as noted earlier, the perception of U.S. actions by the contending belligerents may change the tactical environment in which the ships operate.
This gray area of proclaimed neutrality and practice perceived as unneutral raises a question regarding legal labels, which might be inconsequential except that states apply them as a matter of policy when they want the legal results to flow from those labels. So, in what category are states that claim to be neutral yet as a matter of national policy, or perceived national policy, perform unneutral acts or fail to fulfill their neutral duties? Before World War II, Professor Wild claimed these states were in a condition of "qualified neutrality."(Note 30) The law gave them no name.
At the beginning of World War II, the dilemma of the legal requirements of neutrality was recognized by those states not prepared to take action to stop aggression. The dangers of impartiality as the essence of neutrality were the source of such denunciations as this:
Neutrality in the traditional sense of treating both sides alike meant in practice making no distinction between right and wrong. Neutrality was the negation of law and order; it was the product of international anarchy; it was contrary to the fundamental concepts of law and order.(Note 31)
But who was to impose this order the law required? The belligerents would enforce it against neutrals and the neutrals against the belligerents. Law did not require any state to abstain from action against wrongdoers, but if it chose neutrality, a state was legally required to do so without exerting any direct or indirect influence in favor of one belligerent of the other. Pragmatically, this was the price neutrals paid for being spared by the wrongdoer, that is, retaining the protections the law afforded a neutral.
If a weak state took up a position of neutrality it was understandable, if not wise. In a sense, weak neutrals were gambling that an aggressor state would not eventually turn on them. If a powerful state remained neutral the situation was less easily understood. It might be that the situation was not clear as to which state was wrong. This is not an easy determination to make (and could account for some cases of weak state neutrality as well). But when a powerful state could determine an aggressor to its own satisfaction, and its interests in international peace, stability, and security were threatened by a successful aggression, the criticism leveled by Professor Fenwick above seems justified.
In fact, neutrality did not contribute to anarchy. Despite what they considered a just cause that might be damaged by their neutrality, states deciding on neutrality were choosing in essence expediency over justice (or at least their own short term over long-term national interests). Neutrality was being used as a legal cloak for self-serving policy and was being blamed for perceived moral deficiencies of the true policy. The problem here is more deep seated than the law of neutrality being used as a shield for true intentions--the entire law of war is drawn into question: "Given a system in which war is no illegality it ineluctably follows that victorious war must be allowed to change rights."(Note 32) Boundaries will be moved, governments will be changed, countries will cease to exist, and people will be subjected to a new system of national laws when wars are won.(Note 33) When war is undertaken for aggressive purposes, those results are often not just. This problem was addressed by Grotius, the League of Nations Covenant, the Kellogg-Briand Pact, and the Charter of the United Nations--and it has not yet been solved.
The tradeoff accepted by impartial neutrality when war is precipitated by aggression is the preservation of peace at the potential expense of justice,(Note 34) but what is a state to do when it is not prepared to become a belligerent? Remember, the law of neutrality codified at The Hague demands impartiality and can even require the use of armed force against a belligerent (including one which is the victim of aggression) should the belligerent violate the neutral's territorial jurisdiction in contravention of the law.(Note 35)
From this perspective we must consider Quincy Wright as having a cynical but correct view of the world when he wrote: "Neutrality is, in fact, the policy which all states, particularly those with maritime commercial interests, have tried to achieve in the balance of power system. To be able to remain neutral is to hold the balance of power."(Note 36) Wright assesses the power relationship and its pragmatic logic, ignoring both the overarching principle of justice the law should serve and the moral underpinnings without which it will collapse. Even states looking for short-term solutions must recognize that their legal claims must admit reciprocity, as they, too, may become legal victims of such law.
Another view sees states without significant power seeking refuge in the law of neutrality, in the hope they may be spared until they are prepared to confront the aggressor successfully. Some might abstain from joining the war as a belligerent in the sometimes false hope the war might end better if its intensity is not increased. States could reasonably fear entry into the war would only start a chain reaction of other states aligning on either side, making peace more difficult to attain and vastly increasing the potential for death and destruction.
The decision to become an active belligerent is by no means simple; in addition to the considerations outlined above, the role of neutral states during war is not only important, it may be essential--neutrals can be an anchor against the tide of violence. When a neutral can afford true impartiality it can act as a voice of reason, bringing a detached objectivity to the situation that the belligerents embroiled in the conflict can never hope to provide themselves. A true neutral can lead the way back to the peace in the role of mediator, or at least slow the spread and diminish the horror of war, in part by acting as protecting powers for the victims of war as envisaged by the 1949 Geneva Conventions.(Note 37) Each state entering a war raises the stakes the war is being fought for--and, therefore, the means belligerents will use to assure victory or prevent defeat. Professor Daniel P. O'Connell explains:
Before international law has been discounted there has always been a graduated escalation of the war to the point where no important neutrals stand aloof from the conflict, and the military situation has become so desperate that limitations on the conduct of operations have ceased to be of persuasive value or political importance.(Note 38)
In this instance the law is imperfect, being unable to prevent aggression while preserving restraint against aggressors, and thus many conclude it would be best if the balance-of-power system were subjugated to an international security organization mandating a collective security arrangement. Indeed, this was a basic motivation for the creation of both the League of Nations and the United Nations, and many believe the Covenant and, later, the Charter caused the law of neutrality to be revised to allow discriminating and discriminatory neutrality as the norm--much as Grotius described the duties of a neutral above. (This philosophy can only become effective, however, if the international security organization is both empowered and disposed to perform its intended role).
The laws of war and neutrality replace (or come into operation with) the law of peace whenever hostilities occur, even in internal conflicts.(Note 39) The applicability of the laws of war and neutrality to internal conflicts, however, is not universally accepted, because bringing this law into force places restrictions upon the incumbent government and grants entitlements to the rebel forces. Most governments would prefer to deal with rebels as criminals under domestic law--treating them as belligerents makes their killing of government forces a belligerent right and severely complicates the incumbent government's options. Should the conflict take on an international character, however, the law of neutrality can apply to some of the legal questions which arise. (Note 40) Both the decisionmaking process and the ability to consider the United States neutral in these situations generally conform to the situation described for international conflicts above.
The situation has been clarified somewhat by the Geneva Conventions of 1949. Article 2 of each convention is identical and holds they apply to all "international" armed conflicts whether considered to be war by all the participants or not. Article 3 extends certain protections even when the war is not of an international character and entreats the parties to the Conventions to attempt to have their provisions to apply as broadly as possible to the conflict.(Note 41) These conventions apply, however, only to the humanitarian aspects of the law of war and treat the subject of neutrality tangentially.(Note 42) It is notable that they acknoweldge that neutrals will exist, indicating the parties to these treaties believed the status of neutrality had not been superseded by events or other treaties.
When an insurgent group has achieved the level of control over territory, support from the population, or influence over interests of other states, resulting in their receiving the diplomatic support of other states, they are normally recognized as "belligerents," and, "In the absence of an international consensus as to the legal status of a rebel group every government coming to a view . . . may be entitled to . . . choose the label (bandit, de facto regime, government, etc.) which best suits its policy."(Note 43)
When the label attached is "belligerent" (or something even closer to a new government), the legal consequence is that the insurgent group will be regarded as a legal person under international law.(Note 44) Those who recognize these "belligerents" also assume responsibilities regarding them under the laws of war and neutrality. As will be seen, the "recognition" may be tacit or implied and even flow from actions inconsistent with declared government policy.(Note 45) Ambivalence, domestic political considerations, lack of understanding, and duplicity may individually or collectively cloud the issue of recognition.(Note 46) Such recognition should not be given lightly, however, because just the granting of such recognition can have legal consequences for the recognizing state:
Recognizing or treating a rebellious regime as the successor government while the previously recognized regime is still in control constitutes unlawful interference in the internal affairs of that state. If recognition or acceptance of the rebellious regime is accompanied by military support, it may violate Article 2 (4) of the United Nations Charter as a use or threat of force against the political independence of the other state. It is lawful, however, for a state to recognize the authority of an insurgent group over territory within its control, to give effect to measures by such a group that affect the rights of foreign nationals within that territory, and to deal with it in limited ways as a belligerent.(Note 47)
So, the internal war situation can be viewed in two ways, both of which have the same legal, and perhaps tactical, result:
Once the war takes on an international character through an international consensus supporting or recognizing the authority of the insurgents, states have a responsibility to the incumbent government to behave as neutrals or risk countermeasures.
Unlawful interference in the state's internal affairs may be claimed if the war remains entirely internal, and support or recognition of the force opposing the government is premature (for example, by a single state's policy decision prior to international consensus). The government of the aggrieved state in this case may consider the same set of potential countermeasures and policy options as when there is an international consensus regarding the belligerency (or international character of the conflict).
The two situations would then find the business of dealing with the rebels a violation of either neutral obligations or the obligation to refrain from interfering in the internal affairs of the state involved--but the dangers to naval forces resulting from unneutral behavior or interference are identical. Further, the logic that will likely guide policy decisions remains the same.
The results also flow if the "intervention" consists of support for the embattled incumbent government after the rebels achieve a degree of success sufficient to make it clear that there is a struggle for authenticity or legitimacy going on. Either neutral obligations in a state of belligerency would be violated, or the support of one faction against another all in a single state would amount to an intervention in that state's internal affairs. Either categorization would justify countermeasures, including the use of force by the faction aggrieved by the interfering unneutral state.
While support to either an embattled government or a favored insurgent group may prove a suitable alternative to policy makers, both involve legal (and attendant practical) consequences that could alter the tactical situation for naval forces in the area and that must not be ignored.