Guttman, Egon

English

bepress Legal Repository

The Concept of Neutrality Since the Adoption and Ratification of the Hague Neutrality Convention of 1907

Digital Commons @ American University Washington College of Law

American University International Law ReviewVolume 14 | Issue 1 Article 21998The Concept of Neutrality Since the Adoption andRatification of the Hague Neutrality Convention of1907Egon GuttmanFollow this and additional works at: http://digitalcommons.wcl.american.edu/auilrPart of the International Law CommonsThis Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ AmericanUniversity Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorizedadministrator of Digital Commons @ American University Washington College of Law. For more information, please contactfbrown@wcl.american.edu.Recommended CitationGuttman, Egon. "The Concept of Neutrality Since the Adoption and Ratification of the Hague Neutrality Convention of 1907."American University International Law Review 14, no. 1 (1998): 55-60.THE CONCEPT OF NEUTRALITY SINCE THEADOPTION AND RATIFICATION OF THEHAGUE NEUTRALITY CONVENTION OF 1907EGON GutrrrmANYour Excellencies, Members of the Diplomatic Corp, Fellow Aca-demicians, Students, Ladies and Gentlemen ....The purpose of this Conference is to review developments in theconcept of neutrality since the adoption and ratification of the HagueNeutrality Convention of 1907. That Convention was clearly in-tended merely to refer to military neutrality. Thus, Article VII statesthat: "A neutral Power is not called upon to prevent the export ortransport, on behalf of one or other of the belligerents, of arms, mu-nitions of war, or, in general, of anything which can be of use to anyarmy or fleet."2 Article IX goes on to indicate the concept of neu-trality in requiring that: "Every measure of restriction or prohibitiontaken by a neutral Power in regard to the matters referred to in Arti-cle[I VII... must be impartially applied by it to both belligerents. " 'Two issues seem not to have been in the minds of the draftsper-sons of this Convention: The effect of economic assistance and thequestion of morality. First, I will address the effect of economic as-sistance. Though a neutral Power could not itself act as a supplier ofwar material, there was nothing to prevent nationals of a neutralPower from doing so and thus to profit from such trade. Profit from* Professor of Law, Washington College of Law. Levitt Memorial TrustScholar. This paper was delivered by the author at the Conference on Neutrality.Morality, and the Holocaust, which took place on 23 April 1998 at the AmericanUniversity Washington College of Law.1. Hague Convention V Respecting the Rights and Duties of Neutral Powersand Persons in War on Land, Oct. 18. 1907. 36 Stat. 2310. 1 Bevans 654.2. Id. art. VII, 36 Stat. at 2323, 1 Bevans at 662.3. Id. art. IX, 36 Stat. at 2323-24, 1 Bevans at 663.AM. U. INT'L L. REV4belligerence was accepted and tolerated by this Convention. Thedraftspersons did not seem to realize that the production of weaponsis a bilateral activity; one in which government and industry areclosely interlinked. The risk of exporting intellectual property in-volved in the production of arms to the detriment of the nation re-quires strict licensing. This clearly blurs the distinction between theacts of a neutral government and that of its commercial entities.Furthermore, the drafters did not recognize that economic assistance,though not of any direct "use to an army or fleet," enables that armyor fleet to be supported in its belligerent activities.Secondly, there is nothing in this Convention that seems to callupon neutral Powers to consider moral issues in relation to economicactivities. Although a neutral Power must see that commercial enti-ties and individuals in its realm observe restrictions, if any, placed byit upon commercial activities, a strict reading of the terms of theConvention does not seem to support any moral test. Thus, the Con-vention does not seem to require that banks determine whether assetsdeposited within them were obtained in violation of any precept ofinternational law or morality. Also, while referring to the treatmentof escaped prisoners of war, the Convention does not protect civil-ians who may try to seek refuge in a neutral country because one ofthe belligerents has determined to exterminate them. These are allissues that during the 1940s could only be resolved on moralgrounds. Therefore, however effective this Convention may havebeen considered to be in 1907, much has happened since them.The circumstances surrounding World War II and the immensityand horror of the atrocities committed by the Third Reich of Ger-many differentiates this war from previous conflicts. The "normal"wars of the eighteenth and nineteenth centuries were wars of aggran-dizement; matters of succession or of territorial expansion or both.In all of these the basis was an economic expansion, despite claimsto, and invocation of, divine favor made by all sides to the war. Mo-rality was not an issue. Although the Thirty Years War was foughtalong religious divides and resulted in a loss to Europe of approxi-mately thirty percent of its population, mass murder and the elimina-tion of an ethnic group was not its aim. Hitler changed all that. TheHolocaust was both method and intent. It sees itself reflected in thepolicy of ethnic cleansing both in the former Yugoslavia and in cen-tral Africa.[14:551998] NEUTRALITYSINCE THE 1907 HAGUE CONtrThON' 57Following these historical developments, the traditional concept ofneutrality as an accepted norm of international law requires recon-sideration. This is especially so when one argues that neutral andimpartial conduct means not merely standing aside from active bel-ligerence, but calls into question the maintenance of commercial andfinancial relations with a regime that is conceded to be evil under themoral precepts of counties claiming a "neutral" status. As Ambassa-dor Scheffer only recently stated from this rostrum, "'Neutrality' inthe face of genocide is unacceptable and must never be used to crip-ple or delay our collective response to genocide."'Many countries are forced to re-examine their positions during theNazi Era in the light of questions raised by the world's conscience.Examples of this re-examination are Argentina's Independent Com-mission to "clarify the Nazi Role in Argentina," and the SwedishCommission that is about to report on Sweden's role regarding theassets used by Germany as payment for raw material, as well asSweden's general position as a "neutral" or "unaligned" nation dur-ing World War II. A number of Swiss studies have exposed Swit-zerland's banking and commercial dealings with Nazi Germany.These financial dealings left Switzerland as a major creditor nationof Nazi Germany despite the purchases of stolen gold by Swissbanks to finance the Nazi war effort. These grants of huge lines ofcredits allowed Germany to purchase war material and to laundergold not only stolen from the national treasuries of conquered na-tions, but also from innocent victims of genocide. Spain, Portugal,Brazil, and other South American countries are also confronting theissue of economic dealings with Nazi Germany, denying safe-havento Nazi victims and ultimately granting such safe-haven to partici-pants in the Nazi atrocities.This symposium seeks to address these issues. It focuses on inter-national law, while acknowledging that such law is not hard science.The aim of this conference is not merely to be an accurate and in-sightful review but, if possible, to illuminate the outlines of a moralaspect of international law.Basically the question for international law is whether neutrality is4. M. Cherif Bassiouni et al., War Crimes Tribunals: 7he Record and theProspects: Conference Convocation, 13 AM. U. INT'L L. REv. 1383. 1395 (1998)(statement of Ambassador David J. Scheffer).AM. U. INTL L. REv.dependant solely on non-participation in belligerent activities or re-quires that there be neither direct nor indirect assistance to a belliger-ent-that there be no commercial transactions with such belligerents.Is there not a moral duty on nations not to turn a blind eye on activi-ties by a belligerent that evidence anti-humanitarian, genocidal en-deavors? If we accept this approach, neutral Powers would no longerbe considered to have acted within the guidelines of international lawwhen they turn back civilians faced with certain extermination be-cause of their ethnic or political backgrounds.The concept of total war involving the destruction of civilianpopulation centers makes the traditional concept of neutrality nolonger acceptable. If we recognize that the traditional approach toneutrality requires re-examination, then we must ask: What are wegoing to put in its place? This raises the further question whether aninternal conflict not falling within the traditional international con-cept of war, permits nations to stand aside despite violations of hu-man rights by one of the parties. On the other side of this equation isthe question, can nations claim a neutral status in an "internal con-flict," or must they await a determination by the United Nations Se-curity Council ("UNSC") prohibiting direct or indirect assistance toeither side in a struggle?International law is not Austinian in nature. There is no sovereignwho gives international law. International law is the law of nations,and as such represents the accepted moral basis of what we wouldlike to call civilized nations. International law is the common de-nominator of morality. If one accepts that international law is thejure gentium-the generally accepted minimum morality among na-tions-and it includes the jus cogens, then international conventionsare either the written embodiment of these accepted principles of in-ternationally recognized concepts, or are binding because of the ac-cepted norm of international law: Pacta sunt Servansa.International concepts are not final, they are not immutable, norembodied in cement. An approach that may have been satisfactoryin 1907 may no longer reflect the view of the present time and mayno longer be fully acceptable. The world has moved away from ig-noring evil to confronting evil. Thus, the traditional concept of neu-trality may no longer be acceptable to nations. Therefore, we mustconsider what to put in its stead. The Charter of the United Nations[14:551998] NEUTRALiTY SINCE THE 1907 HAGUE CONVENTION 59still clings to the traditional concepts of international law. Have weonly progressed to the point where we ask, what will the UNSC do?Can we justify turning away refugees from our borders because theyhave not yet been able to cross these borders? Is it only after theyhave crossed these borders that the provisions of a convention thatgoverns the treatment of refugees can become effective? All of theseare questions that cry out for answers. We cannot expect to findthese answers in this one-day Conference, but if we can start thinkingabout answers and can begin to discuss these issues, this Conferencewill be a success.I would like to add my welcome to that extended by our Dean,Claudio Grossman. In particular I would like to welcome represen-tatives of the Bergier Commission whose report most of us are anx-iously awaiting. On one of our panels we have Mr. Michael Brad-field who is associated with the Volker Commission. There arevarious officials of the United States Department of State and De-partment of Justice present, who have been working on what has be-come known as the Eizenstat Report. We are hoping to receive thefinal publication of this report.We are honored to have representatives from Europe and SouthAmerica at this Conference. These distinguished scholars came spe-cifically to Washington to participate in this Conference and wewould like to thank their respective governments for making theirpresence here possible.Our guests from Europe include: Professor Schindler, from Swit-zerland; Ambassador-Professor Wahlbdck, from Sweden; Professorda Costa Leite, from Portugal; and Professor Antonio Marquina,from Spain. We have also been fortunate to be honored by His Ex-cellency Ambassador Dr. Diego Guelar of Argentina and RabbiHenry Sobel of Brazil, who will join us in panel discussions.We must note that speakers at this Conference are presenting theirpersonal points of view which may not necessarily reflect those ofthe government with which they have a relationship.I would like to thank the Dean of the Law School, Claudio Gross-man, for having supported Ambassador-Professor Rubin and me inpreparing for this Conference. Our thanks also go to the Federal BarAssociation-International Law Section, The International Law Insti-tute, represented by Professor Don Wallace of the Georgetown Law60 AM. U. INT'L L. RV. [14:55Center, The Washington Foreign Law Society, The International As-sociation of Jewish Lawyers and Jurist-American Section, and B'naiB'rith-Chesapeake Region, who have assisted us in allowing us touse their mailing list.

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1296&context=auilr

The Concept of Neutrality Since the Adoption and Ratification of the Hague Neutrality Convention of 1907

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

Digital Commons @ American University Washington College of Law