McNair Paper Number 33 Chapter 8, January 1995
While the peacetime presence and crisis response components of our Maritime Strategy are less detailed and formal than the warfighting component, they are no less important.(Note 1)
What has been widely referred to as the presence mission likely will continue to see broad use in the era of the "From the Sea" strategy. Operations in support of United Nations decisions will likewise find the U.S. Navy off the coasts of nations close to--or embroiled in--war. The legal environment and the relative power equation must be understood both from our own perspective and that of any potential adversary.
Further, it must be recognized that inexperienced officers in charge of shore batteries, missile patrol boats, submarines, and coastal state aircraft do not necessarily have a world view of the situation; they may not be able to easily recognize important distinctions between rhetoric and reality. The allure of becoming a national hero for successfully engaging one vulnerable unit from what their political leaders' rhetoric has labeled an "enemy" nation could well mask the risk of plunging their state into a disasterous war.
Preponderant U.S. power is no longer always the rule. The available U.S. naval forces are coming into closer balance with
their potential adversaries, at least at the scene of action. Policy makers must heed the warning of Hermocrates:
Many before have set out to punish aggression, and many others also have been confident that their power would secure them some advantage. Of these, the former, so far from being revenged, have often been destroyed, and with the latter it has often happened that . . . they have had to give up what they had already.(Note 2)
This work reviews a number of previous operations in light of the law of neutrality and its underpinning logic and takes a longer view than might have been possible at the time the operations were conducted. The "lessons learned" included that the belligerent nation's view of U.S. actions regarding the law of neutrality might provide an insight into the risks involved. Also, a consistent pattern of less than impartial conduct when operating near other nations' wars indicates that this practice will continue throughout the future. That is, the legal environment was studied so that its benefits and hazards could be understood. The law can be an important factor in decisions regarding naval forces. This examination has identified some problems and, so far, implied some solutions. This final chapter summarizes these issues and adds some as well.
The taxpayers expect their naval forces to assume risks in the interest of national policy. They also expect the national treasure invested in the physical plants and combat systems of the warships to be husbanded carefully. And the sailors themselves must be given the clearest possible assessment of the situation they stand into and concise direction to achieve attainable objectives. Finally, the sailors' families are entitled to have every possible member of our Armed Forces return home safe and sound.
Law is already considered in the planning of naval operations. The situations examined, however, indicate that the law can have a definite role for those making decisions at the scene of action at sea as well.
The naval force commander, be his force a single ship or a battle group, receives support and guidance for his operations from higher authority. The assigned operations and specific missions are framed for him in a number of ways, usually a Letter of Instruction (LOI), an Operations Order, an Alert Order, or, in extreme cases, in Execute Orders. Each of these documents explains the situation in which the force will operate, assigns specific missions, and when necessary, delineates appropriate rules of engagement.
That support and guidance may well consider every aspect of the law appropriate to the situation, but it does not articulate the law considered. Further, it may take a narrow view of the law, measuring the proposed operations against the United States' assertion or understanding of the legal situation. It is just as appropriate to include an assessment of the potential for an adversary to take action based on his interpretation of the legal situation as it is to provide an intelligence analysis of that adversary's purely political, ideological, or even religious motivations to take action. Presumably any action an adversary might take is the result of a policy decision on his part as well. If the description of international law in chapter 1 holds true, the potential enemy's decisions should consider (either overtly or through subtle influence) international law as well. The adversary's rules of engagement, whether clearly articulated or not, likely consider specific criteria as prerequisites to act--whether that decision is ultimately made at high levels or locally. It is impossible to control for poor judgment on the part of an adversary; this is especially true when the adversary's on-scene commander is inexperienced and operating in an emotionally charged environment. Close attention to his leaders' rhetoric can indicate when this on-scene commander is likely to be confused about his nation's policy decisions or interpretations of the legal situation.
If the U.S. naval force commander were alerted to any legal tripwires inherent in his mission, it could improve the responsiveness of his force. As has been discussed, some U.S. policy decisions can help fulfill the requirements of a potential enemy's rules of engagement. If some U.S. action or pronouncement can cause an adversary to consider U.S. forces to be hostile, or allow otherwise routine operations to be perceived as demonstrating hostile intent, the U.S. commander needs to recognize the dangers of that situation, and checking the situation against the law can help.
Therefore, inclusion of a specific section addressing these legal issues in the standard format for each of the documents--such as LOIs or Operations Orders--that provides guidance to naval force or unit commanders should provide a number of benefits at no real cost. For example, it could:
Assure that the higher authority consciously decided whether including a legal assessment was appropriate for the mission being assigned
Provide a cross reference and separate scale for potential risk analysis aside from the overall intelligence assessment
Give a more complete understanding of the local situation
Enhance the utility of the rules of engagement by helping the naval force commander better anticipate the need to consult or execute them.
Most importantly, providing the legal assessment of the situation would provide an opportunity to review the law from the potential adversary's perspective. This simple process would make the distinction, where necessary, between the U.S. policy and any other applicable interpretation of the law. This can have major implications when the United States is referring to itself publicly and privately as neutral because its policy is to avoid committing forces to the conflict as a belligerent--but technically unneutral actions have occurred removing the protections of strict neutrality, or when the law asserted by the United States is not understood the same way by the potential adversary. This need not be limited to the current concerns regarding neutrality. It would be equally useful in dealing with competing claims regarding maritime territory, maritime areas of jurisdiction, and questions involving the freedom of the sea.
One point of clarification on the need for including this legal analysis: the naval officer is reasonably well versed--or becomes so--regarding the law of war as it affects his authority to employ deadly force in pursuit of his military objectives. Further, the rules of engagement generally clarify these requirements and act as a double check to align his interpretation with that of his seniors. The law of neutrality, however, can be something of a stranger to the unrestricted line officer. Perhaps this is because of the way in which policy decisions are anticipated by the law. The political assumptions underlying the law of neutrality are not the standard fare of the warfare specialists who command forces at sea. And so, subtle departures from impartiality--which sometimes occur at great distance from the scene of action, or arise from differing perceptions of the situation and the law, or what constitutes self-defense rather than direct support to a belligerent--can cause problems.
The United States should use its naval forces to support U.S. policy wherever appropriate, but the level of that involvement should, whenever possible, be the result of a policy decision--not of miscalculation of the adversary's intentions. A legal analysis might improve the results of this effort. Removing the law from decisionmaking not only invites mistakes in policy, it is a mistake in policy.
It is worth noting that the Security Council could define precise rules for any specific situation when the situation requires a decision for enforcement. Such an innovation, though consistent with Charter law, would also need to be fully consistent with the practical aspects of the situation to be persuasive and effective. Further, the influence of such a decision likely would be sui generis.
On the other hand, some, including Kelsen, have argued that the neutrality that survived World War II was not necessarily impartial. The influence of the Charter principles and the experience of the war were thought to establish a new regime of law. Unneutral acts would not terminate the neutral status of a state. Only entry into the conflict through a policy decision evidenced in a declaration or consistent actions of the neutral or one of the belligerents (against the neutral) could terminate the state's status as a neutral.(Note 4) Obviously this interpretation is not much different than the neutrality of the United States before World War II, when a neutral could not expect its partiality to be tolerated by the injured belligerent unless the belligerent took pause in consideration of the consequences of taking action against the neutral. (This is actually part of international law's "automatic enforcement," so to speak).
The intensity of the conflict and the relative power equation of the respective parties determine what policy the belligerent follows and how far the neutral may stray from impartiality without eliciting a reprisal or other reaction. The aggrieved belligerent may deal with the unneutral behavior through localized military, diplomatic, economic, legal, and other measures having major political effects regardless of the relative military, economic, and even political power situation in isolation. In discussing various proposals to improve the International Court of Justice, Professor Leo Gross concluded, "More imaginative innovations may be needed to take into account the unprecedented interdependence of states in their international relations."(Note 5) If this is an appropriate prescription for the Court, surely it is essential to the law itself as well.
The current law of neutrality is based on centuries of practice and agreements hammered out by negotiators in 1907 and confirmed in 1928 about what should not be accepted by belligerents. This law was developed when only power and pragmatism could argue to modify the law evidenced by the "practice-of-states-observed-until-then." Unfortunately, the practice has changed little. That is, Articles 2 and 33 of the U.N. Charter remain rules "for" rather than rules "of" international behavior.
Because a new treaty could appropriately include prescription for the future, perhaps another look at the law is warranted. With unpredictable dangers to the escalation of any conflict the restraint on expansion of war should be greater than was contemplated in 1907 and 1928. To the degree that the rules of law, such as the United Nations Charter, are an expression of the collective expectations of the states of the world, there is evidence that those same states expect a degree of partiality to be appropriate at times. Perhaps it is time to try to define what partial actions neutrals should be allowed to take and what actions belligerents should not tolerate. Or, maybe that would prove entirely situational. If a list of these actions could be developed, it would be useful to policy makers and commanders whether it could be made law or not, though clearly its influence would be magnified by codification.
The onset of World War II witnessed a metamorphosis of sorts in the terminology of wartime roles as viewed by the law. Instead of dealing in terms of neutral and belligerent states, the world was presented with a new articulation of status vis-à-vis the conflict--non-belligerency. Just exactly what non-belligerency is seems to be defined only to the satisfaction of the states which consider themselves non-belligerent.
Although non-belligerence was most recently espoused in the late 1930s and early 1940s, committing unneutral acts through partiality has long been understood as within the law of neutrality. Grotius advocated it as a policy to favor a just cause. Today unneutral actions are simply a departure from the law of neutrality. In many cases such a departure is much more likely to result in limited reprisal by the aggrieved belligerent than in war, and the benefit to the favored belligerent may be evaluated as justifying the risks of reprisal or even war. In any case, international law is not a criminal law system with objective evaluations and community enforcement by direct action; it is a tort law system, where the reaction of the victim of a "wrong" is key to understanding what the law really is understood to be by the victim. State practice and the summary of declarations (below) include a number of cases in which states have been neither openly belligerent nor impartial.
There has been a growing tendency in this century both to avoid war and to pursue what is perceived as "justice" in international relations. The law of neutrality, if it includes impartiality, reduces the decision to act in support of a "just" belligerent to a question of choosing between peace and justice in many instances. Of course, states may reject impartiality without committing themselves to open fighting, but they do so without the protection of the traditional law of neutrality, or at least without its unambiguous protection.
If the law recognized non-belligerence as a legal status it is possible belligerent states would take greater pause in making the policy decision whether a reprisal is the appropriate response to specific unneutral conduct or if some less stringent protest might be more appropriate. If a state gained some flexibility under the law of neutrality to act, without forfeit of its protections, in support of a belligerent deemed by a broad consensus to be acting on just cause--and this new interpretation were supported by a collective security alliance or coalition, the law might actually be strengthened. Justice might be better served if states contemplating belligerent reprisal would have to consider that they would be confronting more than the military power of the so-called non-belligerent.
The industrial and economic strength of states could be better brought to bear in a crisis. States participating in the broad consensus, while unable or unwilling to take a military role, might take limited action by forgoing their own impartiality to impose sanctions to help enforce the consensus view of "justice" if this proposed new law extended protections such as those which currently exist for neutrals to the self-declared non-belligerent. This would bring into the laws of war and neutrality a protected status for states to fulfill their obligations under collective self-defense arrangements (formal or informal) short of joining the war as a belligerent (which many are reluctant to do anyway).
This is not inconsistent with the requirements of the United Nations Charter prior to or absent action by the Security Council. In fact, it is consistent with the situation that ensues when the Security Council decides on enforcement action. Under Article 25, states are obliged to comply with Security Council decisions but are not necessarily always obliged to engage the state being enforced against with combat forces.
This was the case when the coalition acted under Security Council Resolution 678 in collective self-defense of Kuwait while states not members of the coalition were obliged to comply with previously imposed sanctions including the embargo. This did not prevent Iran and Jordan from declaring neutrality.
This could then be seen as a contemporary, and legally accepted, example of United Nations authorized enforcement action permitting some states to be belligerents and expecting all other states to be non-belligerent (or at least not impartial) and allowing some states to be neutral. It is also consistent with other state practice in this century, and not only the practice of the United States as related earlier. Consider the following examples:
During World War I, coincident with the U.S. declaration of war in 1917, the complexities of the world situation were leading other nations to shift from positions of neutrality to something else, but not all became formal belligerents.
Brazil, at the onset of hostilities in Europe, declared neutrality (4 August 1914) but gradually found neutrality untenable. Brazil's path to belligerency was not direct.
There was . . . a period under neutrality regulations . . . during . . . which . . . diplomatic relations with Germany were severed. This period (11 April to 11 June 1917) was followed by a period during which diplomatic relations were still severed and neutrality revoked and a recognition of the American "continental solidarity" was announced and spirit of friendship for the United States (a belligerent since April) was expressed without a declaration of war till October 26, 1917.(Note 6)
After the U.S. declared war, Costa Rica offered in April 1917 "the use of its waters and ports for war needs by the American Navy."(Note 7) Peru opened ports to U.S. warships calling the action "benevolent neutrality."(Note 8) El Salvador claimed to be "associated with the United States"(Note 9) after the United States declared war. Uruguay, in June of 1917, proclaimed: " . . . no American country which in defense of its own rights should find itself in a state of war with nations of other continents will be treated as belligerents (sic)."(Note 10)
Judge Jessup asserted: