McNair Paper Number 33 Chapter 8, January 1995, (Continuation)
A basic assumption is that peace with justice is a desideratum. The obstacles in the way of attaining such a peace are many. We should be sure that we do not increase the number of obstacles by a rigid adherence to traditional concepts which may have been the product of historical situations which do not have their counterpart today.(Note 11)
The situation goes beyond being illogical--it is so ambiguous as to be dangerous. Since most armed conflict is of limited scope and duration it is frequently difficult to determine whether a war has begun in earnest or if what seems to be "war" is merely a series of isolated actions. The third state, whether partial to one side or not, might well have trade relations that aid either potential belligerent and are essential to the third state's economic interests. These trading rights might need to be defended by the neutral third state, while a disadvantaged belligerent might consider the associated transport to be subject to seizure or destruction.
While it seems clear that the law of war applies to all forms of hostilities between belligerents or parties engaged in the incidents within the context of the jus in bello, questions remain regarding when the law of neutrality becomes operative. For instance, when is a state acting in self-defense entitled to expect third states to prevent the use of areas under their jurisdiction by the opposing side? And, what degree of jurisdiction must the third state enjoy before the rights and obligations of the neutral apply (e.g., how does neutrality operate in an Exclusive Economic Zone, over a state's continental shelf, in archipelagic waters)? What are the prerequisites that, once completed, give rise to a right to act in reprisal against perceived unneutral acts?
The answers to these questions will always come down to unfettered auto-interpretation of the situation and the law: simply a policy decision--albeit a difficult one--by the state involved. Nothing can change that, but a treaty reflecting law that helped clarify these issues would become a factor in the decisionmaking process and might influence the results of these auto-interpretations in a helpful manner.
The factual existence of stages between neutrality and belligerency or between peace and war is irrefutable. This provides the element of "the practice of states" to the law-making process. As yet it has not been persuasive in changing the law. In legal terminology, that practice does not as yet include opinio juris: states do not behave that way because they believe the law requires it--they behave that way because they believe their policy priorities require it, hence customary law regarding non-belligerency as a separate status is not yet developed, nor is it in the process of developing. No amount of state practice can result in new customary law unless those states believe their practice to be required by the law as they understand it.
The existence of the status of non-belligerent is acknowledged in the Geneva Convention Relative to the Treatment of Prisoners of War regarding the obligation to intern members of the armed forces of the belligerents found in their territory. While this by no means defines the duties and obligations of non-belligerents in war it does limit their flexibility. It prevents a state from claiming to be non-belligerent and allowing its territory to be used as a base by one of the warring parties.(Note 12)
If a more precisely defined status were to be agreed for the non-belligerent, it might permit states to give up certain neutral rights in exchange for specifically approved types of actions departing from impartiality while allowing them to remain immune from direct military action as belligerent reprisal. Perhaps humanitarian deliveries should be permitted specifically in the law rather than on a case-by-case basis, even when a port is blockaded or a town is besieged, for example.
Good law should reflect what is consistently accepted as good policy. The reality of global interdependence argues for this type of an exception to prevent threats to neutral or non-belligerent trade from causing a state to incur irreparable economic harm from a war in which it desires to remain "non-belligerent"--or, conversely, to prevent states from being drawn into a conflict for no reason other than to sustain an essential trade relationship with one of the belligerents.
Were such an accommodation to be made it would permit a state to add its strength (in part) to one side in an armed conflict in a manner that might cause the other belligerent to sue for peace or accept an armistice or cease-fire sooner, or on terms less favorable to itself than if all non-participants in the fighting had adhered to strict impartial neutrality. While this would not prevent a policy decision to engage the shipping of the non-belligerent state, if clear legal (and associated strategic) consequences flowed from such a decision, it might prove harder to make. That is, if doing so was not legally acceptable as a reprisal--which is a one-time punitive response--then an aggressor state would have to enlarge the list of enemies it was confronting for the duration of the conflict. The weight of the policy decision involved would be greater.
The very potential for third states to declare non-belligerence and still enjoy some protection under the law would provide would-be aggressors with reason for hesitation. Of course, this could also give pause to the allies of the defending state, but could slow the escalation of any conflict by formalizing a step in collective self-defense. Non-belligerence would allow actions that do not broaden the conflict by committing additional forces to combat, yet put the aggressor on notice that allies and other non-belligerent supporters are prepared to make the aggressor's military objectives more difficult to attain.
The purpose of the law of war is to end war as quickly as possible with a minimum of suffering in an environment conducive to a lasting peace. In times past, perhaps only neutral and belligerent statuses were required to achieve those ends. Today those might be inadequate.(Note 13)
If the current trend toward more frequent resort-to-the-authority for enforcement action under the Charter continues, non-belligerence might be required as a status if Security Council decisions are to have irresistible force.
Additionally, non-belligerence could present the opportunity for great powers to withhold their full force of arms from a conflict while still acting in behalf of their national interests. If the great powers successfully resist entering into open hostilities the potential for catastrophic escalation would be more easily averted; if they fail, they would at least have slowed the momentum of the conflict permitting a greater opportunity for its control.
Some might view this as a philosophy already in vogue. Without the sanction of law, however, it detracts from the international order by appealing to preponderant force for protection instead of the authority of a law that might be beneficial to all states. Codifying parameters of unneutral non-belligerent conduct could turn this situation around.
While this seems more paradox than panacea, it is an alternative that accommodates restraint. Expediency benefitting all is not anathema to international law; it is the foundation of many customary rules. Trying to change the law through practice alone though will ensure the law will be written in blood--but let it not be the blood of the American Bluejacket.
It is worth restating that policy must be developed in general terms to control actions in specific cases. The parameters that policy must observe are defined by these general rules:
Remember any rights you assert are also obligations to submit to similar rights of all others
When force is appropriate use only as much as the situation requires
Do not let political labels be confused with legal reality.(Note 14)
Unneutral behavior leaves the naval force in a situation where the options for forceful actions are only of a defensive character, therefore, regardless of their state of readiness, at the moment they are first engaged there is great potential to accept a tactical disadvantage. Accurate and timely warning of risk becomes paramount.
The instructions to the at-sea commander must be candid and specific, imposing all necessary legal restraint while offering every appropriate tactical latitude. This is a difficult mix to say the least.
The advantages held by potential adversaries may not argue for restraint on their part. In the current context, the decision when to stop accepting less than impartial behavior belongs to the aggrieved belligerent. The at-sea commander must be given every opportunity to anticipate when that decision will be made. These situations require well-planned and clearly stated Operations Orders, well-armed and highly alert forces, an understanding of the legal situation, and an understanding by all concerned of both the importance of restraint and the lethality of hesitating to respond at the instant self-defense becomes appropriate. "A strategist should think in terms of paralyzing, not killing . . . psychological pressure on the government of a country may suffice to cancel all the resources at its command."(Note 15) Where that effect is not anticipated, our forces need to proceed fully alerted with a complete understanding of the law and the rights they are defending.
Policymakers will continue to call upon the peacetime (and hopefully peaceful) employment of naval forces for a variety of national, coalition, and multi-national operations. This only can be considered an effective option, however, if the officers charged with executing the naval policy of the United States continue to have the necessary resources: adequate forces, domestic and international political consensus, and a clear understanding of the U.S. and competing views of the legal situation.
Operations should be planned and executed with these issues of law in mind:
Will these operations change the status, or the perceived status, of the United States under the laws of war and neutrality?
Are "rights" or "interests" being cited as the motivation for these operations?
Is the potential adversary in these operations likely to perceive he needs to use force in self-defense or in defense of "rights" asserted?
Will these operations establish precedents that are to the long-term advantage or disadvantage of the United States?
Will these operations potentially add belligerent parties to an existing armed conflict?
Do the naval forces at sea have sufficient information about the law asserted by the United States and and that asserted by any potential adversaries to execute these operations in a manner which advances U.S. policy?
The truly competent naval officer has respect for both physical and legal environments, based on the realization that either can unleash forces that can destroy his ship. Change for the worse in the physical environment can turn loose powers of nature that can destroy anything man has made. Changes in the legal environment can, in turn, bring on dangerous changes in the tactical environment and bring the destructive powers of man to bear. It is perhaps his respect for these forces that allows the naval officer to go to sea confident of his ability to meet its challenges. The naval officer in command at sea owes respect for the physical environment to his crew and his ship if he is to keep them safe; he owes respect for the legal environment to his nation if he is to deserve the special trust and confidence placed in him to support and execute policy without unnecessary losses to his unit or the prestige of the nation.
Count Wachtmeister noted that for Sweden, "Foreign policy is the first line of defense."(Note 16) A thoughtfully developed and well- coordinated naval policy certainly enhances the defense of the United States. These recommendations were made in the hope they might help in crafting our naval policy.