Irish Centre for Human Rights Blog

Pearce Clancy is an Irish Research Council PhD scholar at the Irish Centre for Human Rights, and editor of the blog.

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On 24 February 2022, after having recognised the supposed breakaway states of the Donetsk People’s Republic and Luhansk People’s Republic, the Russian Federation began a large-scale invasion of Ukraine. The stated aim of the invasion was given by Russian President Vladimir Putin as the defence of the aforementioned ‘states’, and the ‘demilitarization and de-Nazification’ of Ukraine.

It is abundantly clear that the use of force within the meaning of Article 2(4) of the United Nations Charter has been resorted to by Russia. Moreover, it is clear that no convincing legal justification for this attack has been given, or can be said to exist. As Milanovic has noted, there is no evidence of the existence of an ‘armed attack’—imminent or otherwise—from Ukraine that would give rise to a Russian right of self-defence pursuant to Article 51 of the Charter, nor can there be said to be a collective right of self-defence with respect to the Donetsk and Luhansk republics.

The functional result of this in international law is twofold. First, by virtue of the Russian invasion, and the ongoing occupation and annexation of Crimea, we can conclude with certainty that an international armed conflict is currently underway between Russia and Ukraine. Second, Russia has breached the prohibition against the use of inter-state force, which enjoys jus cogens status as a fundamental, or peremptory, norm of the international legal system. The applicability of two interrelated legal regimes have thus been triggered, namely international humanitarian law, or the law of armed conflict, with respect to combatants and the affected civilian population, and the international law of neutrality, with respect to third states not involved in the hostilities. These apply concurrently to international human rights law, which remains applicable during armed conflict.

This, however, needs to be nuanced somewhat, owing to the fact that Russia is waging what is an illegal war, in breach of jus cogens norms. In such circumstances, all states are obligated, pursuant to the Articles on the Responsibility of States for Internationally Wrongful Acts, to cooperate to bring an end to the unlawful situation through lawful means (Article 40-41). States must similarly ensure respect for international humanitarian law, consistent with Common Article 1 of the Geneva Conventions. Nonetheless, neutral states have certain duties which they must adhere to during international armed conflicts—duties which, at least superficially, appear to be at odds with these obligations.

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The Russian invasion has, predictably, prompted an impassioned public debate as to whether Ireland is and ought to be a neutral state. This has been further complicated by confusing messaging from the Irish government. Minister for both Foreign Affairs and Defence, Simon Coveney, made the apparently contradictory statement that ‘Ireland is a neutral country, we’re militarily non-aligned, but we are certainly not neutral on an issue like this, when there is blatant aggression happening on the continent of Europe.’ Of similar note is Tánaiste Leo Varadkar’s statement that Ireland is ‘militarily neutral, but in this conflict Ireland is not neutral at all’.

Despite such rhetoric, however, certain actions of the state can only really be explained by reference to the traditional position of ‘military neutrality’, and by extension the law of neutrality, which does not in truth prohibit the kind of international solidarity hinted to by Coveney and Varadkar. Principal amongst these actions is the decision not to contribute to the European Union’s provision of lethal military equipment to the Ukrainian armed forces. Rather, Ireland will limit its contributions to ‘non-lethal’ equipment, including body armour and fuel. This post will accordingly consider whether the Irish state has abided by the international law of neutrality thus far during the invasion of Ukraine, and reflect on the status and application of the law of neutrality during the ongoing conflict.

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Provision of War Material

As noted above, Ireland will not assist the EU in providing a reported €450 million worth of arms to Ukraine, in what is the first instance for the supranational entity to do so. Taoiseach Micheál Martin issued assurances that this would ensure Ireland acts in conformity with its traditional policy of military neutrality, and that the provision of materials such as fuel would leave Irish neutrality intact.

Hague Convention XIII of 1907 provides in Article 6 that ‘The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.’ The term ‘war material’ here is key, and is left curiously undefined in international law, raising uncertainty as to what exactly is being prohibited. The use of the clunky phrase ‘of any kind whatever’ in the English translation—‘matériel de guerre quelconque’ in the authentic French—suggests that it should be read somewhat liberally, however a comparison with Article 7 common to Hague Convention XIII and the related Hague Convention V suggests otherwise.

Article 7 provides that ‘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.’ Of note here is the much more expansive language, identifying ‘anything which can be of use to an army’. The seemingly broader scope in the permissive Article 7, which concerns a neutral state’s obligations with regards to private persons involved in exporting or transporting arms, would appear to suggest that the restrictive Article 6 ought to be read restrictively.

This view appears to be borne out in international opinion and state practice. First, it is noteworthy that the term ‘war material’ in Article 6 is generally agreed to consist of material which was traditionally considered as ‘absolute’ contraband (see here and here). Illustrated in Article 22 of the unadopted 1909 London Declaration, which is at least partially indicative of customary international law, ‘absolute’ contraband includes objects such as arms, projectiles, explosives, clothing and equipment of a military character, armour plates, and warships. Similarly, as Upcher notes at pp. 83-84, the majority of state practice, particularly during the 1988 Iran-Iraq war, directs towards a narrow interpretation as to what may be referred to as ‘absolute’ contraband. This is supported by Bothe (pp. 563).

The suggestion that a neutral state may provide non-lethal equipment to the armed forces of a belligerent state and not breach the law of neutrality appears somewhat paradoxical, but a strong prima facie case for the Taoiseach’s assertion being correct does seem to exist. That said, on closer inspection, further questions do arise. First, it is noteworthy that body armour, which Ireland is financing, is included in the London Declaration’s list, being ‘clothing and equipment of a distinctively military character’. While it appears that this list was never accepted as legally binding by states, its inclusion in Article 22 does give cause for thought. Second, it is important to stress that historically the provision of fuel, in particular coal, has been controversial in debates on the law of neutrality. Hague Convention XIII contains limitations on how much coal warships could take on in neutral ports (Articles 19-20), although does allow for some discretion to neutral states as to the ‘method of determining the amount of fuel to be supplied’ (Article 20). On the other hand, Bothe has argued that there is no evidence that the term should be extended beyond ‘material which is capable of being used for killing enemy soldiers or destroying enemy goods’ (pp. 563).

Accordingly, while it does appear that Ireland has given consideration to its duties as a neutral state, whether the compromise reached with the EU on assistance to Ukraine remains unfortunately unclear, owing to a general state of disarray in international law on this question. It is noteworthy, however, that in its statements regarding the decision, Irish governmental officials cited the similar decisions made by Austria, a state bound by treaty law and its own constitution to permanent neutrality, and Malta, similarly bound by its constitution (see Article 1(3), Constitution of Malta).

However, even if it is accepted that Ireland is not providing war material to the armed forces of Ukraine, the Irish state may be nonetheless committing an unneutral service by providing general economic assistance, thus breaching the neutral principle of non-participation (see Bothe, pp. 561). The major instance of state practice concerning financial assistance of belligerents concerns funds and assistance given to Iraq by the United States, Saudi Arabia, and Kuwait during the 1988 Iran-Iraq war. During this conflict, while these states breached their obligations as neutrals, such measures did not render them co-belligerents, or provide a justifiable basis for retaliation by Iran (see Bothe, § 28-29). The same applies to Russia and the provision of assistance to Ukraine. Whether the decision of Ireland, Austria, and Malta to engage with the EU in this regard indicates the emergence of contrary state practice remains to be seen.

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Inviolability of Neutral Territory

That neutral territory is inviolable and belligerents may not move troops or supplies through neutral territory is core to the law of neutrality, and is enshrined in Articles 1 and 2 of Hague Convention V. Moreover, neutral states are obligated to ensure that belligerents do not violate their territory (Article 5, Hague Convention V). The Irish government was thus acting in conformity with its obligations by restricting Russian access to Irish airspace.

The crucial aspect of these rules, however, is that they apply across the board—to be acting in full conformity with the law of neutrality, Ireland ought to similarly restrict access to Ukrainian military aircrafts, as well as those belonging to any other belligerent states. This does not include humanitarian aircrafts, and is ultimately unlikely to be an issue in practice. If, however, the situation escalates further and third states join the armed conflict, whether on the side of Russia or Ukraine, the law of neutrality would similarly prohibit their use of Irish territory and airspace, including Shannon Airport.

Note however the decision of Kearns J. in the Irish High Court in Horgan v Ireland, wherein the learned judge suggests—incorrectly, in the writer’s opinion—that the inviolability of neutral territory may not be absolute, and limited only to situations wherein large numbers of foreign belligerent troops pass through Irish territory.

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Volunteers

Ukrainian President Volodymyr Zelensky has actively encouraged volunteers from abroad to join the ‘International Legion of Territorial Defense’, as well as for Ukrainian nationals abroad to return to Ukraine to assist in repelling Russian forces. Ireland was amongst the states from which such volunteers, seemingly primarily Ukrainian nationals, travelled to fight.

As a corollary of the inviolability of neutral territory, corps of combatants are forbidden from forming on neutral territory, as is the operation of recruiting agencies (Article 5, Hague Convention V). Neutral states are not, however, required to prohibit the independent movement of volunteers to join a belligerent army (Article 6, Hague Convention V). Thus, no Irish responsibility can be engaged for allowing individuals, or groups of individuals, to travel to Ukraine for the express purpose of joining the Ukrainian war effort, so long as such travel is not explicitly coordinated by the Ukrainian authorities on Irish soil. In this sense, it is interesting to note that Ukraine has made its national embassies available to volunteers for enrolment. While it is unlikely that this would meet the required threshold for the formation of corps of combatants under Article 5, it nonetheless reflects an interesting ‘grey zone’ between the recruitment of lay-soldiers and the provision of assistance to volunteers.

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Sanctions

The Russian invasion has already prompted a slew of sanctions from the international community, in particular the EU, including the exclusion of numerous Russian banks from SWIFT, the international payments system, and the freezing of assets belonging to Vladimir Putin and other Russian elites.

Strikingly, even Switzerland joined the EU in imposing these sanctions, prompting headlines declaring the Swiss to be abandoning neutrality. On closer inspection, however, Switzerland has long considered unilateral economic sanctions to be compatible with its neutrality. In its 1993 White Paper on Neutrality, the Swiss Federal Council outlined its view that the requirement to treat belligerents equally economically applies only to the provision of the materials described in Article 6 of Hague Convention V. Thus, the official Swiss position is that ‘There is no express requirement to observe economic neutrality.’ The White Paper argues that, rather than being incompatible with neutrality, sanctions imposed against states breaching the peace or violating international law are in fact ‘in accordance with the spirit of neutrality’ (pp. 21). More directly on the question of EU sanctions, the White Paper affirmed that, in the view of the Council, joining in such sanctions is not incompatible with Swiss permanent neutrality (pp. 25).

This is not to say that the Swiss decision is not significant. While Switzerland has previously engaged in sanctions, insofar as the writer is aware, it has not done so before without there being a UN Security Council resolution under Chapter VII. In such cases, it is accepted that neutral states may impose sanctions, consistent with their obligations under the UN Charter, without breaching the law of neutrality. Alternatively, in the case of the extremist white supremacist regime in Southern Rhodesia which declared independence in the 1960s, before Switzerland became a UN member state, sanctions could be sustained on the basis that the law of neutrality applied only to conflicts between states, and so could not be extended to that regime (see here, pp. 93-95). Nonetheless, even in this instance, Switzerland refused ‘for reasons of principle’ to impose sanctions against the rogue regime, opting instead to freeze trade at the level of what was then ‘normal trade’ (the ‘courant normal’) between Switzerland and Rhodesia (see here, pp. 84).

The question then is whether this Swiss position in favour of sanctions—seemingly shared by Ireland, who has actively advocated for measures including exclusion from SWIFT—can be sustained in law. According to Hersh Lauterpacht, in the 7^th edition of Oppenheim’s International Law (Volume II):

‘There can be no doubt that neutral States …. may, either singly, or jointly and collectively, exercise intervention whenever illegitimate acts or omissions of warfare are committed … by belligerent Governments … If any such intervention occurred, it would have nothing to do with the war in general, and would not make the intervening State a party to the war, but would concern only the international delinquency committed by the one belligerent through acts of illegitimate warfare’ (§ 246).

Havel, for his part, emphatically rejects the notion that the law of neutrality requires economic neutrality during international armed conflicts (pp. 180-183). It is noteworthy that neither Hague Convention V nor XIII addresses economic issues, whether that be the provision of economic aid, or the restriction of trade in non-war material—as Upcher notes, this leaves the issue to be resolved by reference to customary international law (pp. 87).

Intuitively, it would seem that unilateral or collective sanctions imposed without being explicitly mandated under Chapter VII would render a neutral state partial during an armed conflict. However, much has been written to suggest that there is no strict obligation for a neutral state to remain entirely impartial at all (see Upcher, pp. 71-77; see also Eagleton). An argument can be launched however based on the principle of non-participation which prohibits the provision of economic aid: if the active provision of economic assistance to a belligerent is prohibited, surely the concerted economic deprivation of another is similarly prohibited. In much the same way that providing economic assistance to a belligerent effects the outcome of the conflict, the imposition of unilateral or collective non-Chapter VII sanctions does the same.

The law of neutrality does not however exist in a vacuum, and must be considered in light of countervailing state obligations. This is particularly important because, as noted above, the Russian invasion of Ukraine constitutes a breach of the jus cogens norm against the use of force, and thus gives rise to obligations erga omnes, owed to all states in kind. There is accordingly, as noted above, an asserted obligation on all states to cooperate to bring the unlawful situation to an end. This tension, between the law of neutrality and the law of state responsibility, has been identified by Palchetti (pp. 1227-1230), who suggests that this may indicate a narrowing of the scope of the law of neutrality. Thus, the neutral principle of non-participation could be seen as subservient to the law of state responsibility’s obligation to cooperate to bring unlawful situations to an end through lawful means. As Crawford notes, however, issues arise regarding what may be considered as ‘lawful’ (pp. 387)—can, for our purposes, an ostensible breach of the customary principle of non-participation by a neutral state be considered to be lawful?

Heintschel von Heinegg has alluded to an alternate explanation, specific to the context of the invasion of Ukraine, and the annexation of the Crimea. For von Heinegg, attention must be given to the fact that the only reason there is no UN Security Council resolution mandating or authorising Chapter VII measures is because Russia, the aggressor state, vetoed such efforts. Thus, it is argued that neutral states are free to depart from the law of neutrality—including by providing war material—as though a Chapter VII resolution were in place.

It is thus ultimately difficult to come to a categorical conclusion on this question. In circumstances where the breach of jus cogens norms is as clear as in the unlawful invasion of Ukraine, a credible argument for the imposition of economic sanctions can be launched on foot of the law of state responsibility, and the ostensible lack of a requirement for economic neutrality. Further, it is of some value that Switzerland, the state which has maintained the longest stance of permanent neutrality, has joined in such sanctions. However, such sanctions must in any event be sure to meet the relevant human rights standards, and not veer into the territory of unproductive and inhumane acts of collective punishment against a civilian population.

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Regardless as to whether Ireland can be said to be in full conformity with the international rules and principles governing neutrality, it is nonetheless significant that, while the vast majority of states are taking increasingly drastic action to halt Russian aggression, Ireland has tempered its response somewhat due to its traditional stance of ‘military neutrality’. Importantly, as a matter of international law, not all breaches of the law of neutrality render a state non-neutral, or co-belligerent. Thus, even though it is doubtful that some Irish measures are squarely within the legal parameters set in the Hague Conventions and customary international law, Irish state practice so far during the invasion does nonetheless indicate that Ireland is indeed a neutral state.

That it is difficult to come to decisive conclusions as to the compatibility of certain Irish actions is indicative of an unfortunate lack of clarity in the international law of neutrality, owing to its neglect in recent decades. This should not, however, be taken to mean that it has fallen into irrelevance or disuse, but rather that it is in pressing need of recodification. In particular, clarity is required as to the interaction between neutral duties and state obligations in the face of unlawful aggression. Renewed academic interest (see, mostly recently, here), as well as the growing relevance of cyberwarfare—including in the invasion of Ukraine—suggests that the law of neutrality may yet see a return to relative importance.