American Society of International Law
1997 Annual Conference, Washington D.C.

The Relevance of the Question

Recent disastrous failures of international humanitarian actions have been partially attributed to the failure of United Nations or national forces or non-governmental organization to abide by the twin principles of neutrality and impartiality. Somalia is an often quoted example. On the other hand, the attempt to act in strict compliance with these perceived principles has also been invoked to explain the failure of international action. This can be best exemplified with reference to the activities of UNPROFOR and NATO in the Bosnia conflict. [See, at greater length, Weller, Peace-keeping and Peace-enforcement in the Republic of Bosnia and Herzegovina, 56 Heidelberg Journal of International Law (ZaoeRV) (1996), 70.] In a report on UNPROFOR operations of 1994, the UN Secretary-General claimed that [UN Secretary-General, Report S/1994/300, 16 March 1994]:

Several of the newer tasks have placed UNPROFOR in a position of thwarting the military objectives of one party and therefore compromising its impartiality, which remains the key to its effectiveness in fulfilling its humanitarian responsibilities.

This comment, relating to the protection of humanitarian aid convoys under a Chapter VII Security Council mandate, must be seen in its context: The UN Security Council, the General Assembly, the Human Rights Committee and Commission and its Special Rapporteur, and countless other authoritative and objective international agencies had found that there existed a predominantly Serb campaign to ethnically cleanse wide areas of Bosnia and Herzegovina through the deprivation of the civilian population of foodstuffs, medicine and other items necessary for their survival. Here, the UN Secretary-General appears to have accepted this technique, the unlawfulness of which the Security Council had expressly confirmed, as a “military objective”. The interference with this objective, i.e., the rendering of humanitarian aid, would jeopardize UNPROFORs impartiality.

The Chapter VII mandate to protect the so-called safe-areas through the prevention of armed incursions into them, the military reply to bombardments and the establishing of safe humanitarian access was frustrated according to a similar logic. As the UN Secretary-General explained [UN Secretary-General, Report S/1994/555, 9 May 1994]:

The Bosnian Serbs, on the other hand, regarded UNPROFOR’s very limited use of close air support as an intervention on behalf of their opponents, and did not hesitate to attack a populated area. UNPROFOR’s neutrality and credibility were strongly challenged by the different attitudes and expectations of the parties.

Hence, the Secretary-General concluded in another Report [UN Secretary-General Report, S/1995/444]:

… using force against only one party, whether directly or through regional arrangements alters that parties perception of the neutrality of UNPROFOR, with the risk that its personnel and those of other United Nations agencies come to be identified with the use of force and perceived as a party of war.

The United Kingdom Campaign Plan for UN/NATO Operations in Bosnia, which guided UN operations in the area, of February 1994 [restricted], indicated:

It is … fundamental that the UN must remain a non-combatant in the conflict. This crucial consideration must be recognized by NATO, particularly with regard to the possible use of airpower. This is a people’s war and has many complex origins and consequences, not all of which are susceptible to the threat posed by air-power. Therefore, a formula needs to be found to reconcile the belligerent parties values with the UN’s and world community’s interests.

After having relinquished command of UN forces in the theatre, Lieutenant General Sir Michael Rose stated, respectively, in January and June 1995:

… we managed to hold the line. There is a very clear distinction in my mind between peace-keeping and peace-making.

… a peace-keeping force designed to assist the delivery of humanitarian aid simply cannot be used to alter the military balance of force in a civil war, modify political goals of one party or another, or even to enforce the passage of a convoy—for these are pure acts of war.

These comments indicate that the UN and NATO humanitarian operations were conducted in accordance with the supposed principles of neutrality and impartiality. This practice had several important and disturbing consequences:

  • Mandatory UN Security Council demands (humanitarian access) were subjected to negotiations with the parties and their implementation was made dependent on their good-will. As at least one of the parties was bent on frustrating the aims of the international community, it was obviously unrealistic to count on its cooperation in this respect;
  • The UN Secretariat and the military command appeared to legitimize the very techniques of warfare which the Security Council had so clearly branded as unlawful, by accepting that interference with these atrocious practices would be unneutral or partial. This applied to the starvation of civilians as a means of warfare, and to the direct attacks on concentrations of civilians;
  • In order not to appear unnneutral or partial, UNPROFOR and NATO conducted their limited aerial operations by way of “close air support”, i.e., self-defence, rather than in the formal implementation of Chapter VII authority to apply “necessary measures” to parties which had violated mandatory rules of demands. As a consequence, the definition of self-defence in general international law may have been unacceptably stretched, inasmuch as some of these operations were not conducted by way of a proportionate response to an ongoing armed attack.
  • When the UNPROFOR finally collapsed with the fall of Srebrenica, the UN, along with the unfortunate civilians trapped in that area, found itself in the worst of all possible worlds. UNPROFOR was still being accused by the Serb party of having acted in violation of the principles of neutrality and impartiality, while at the same time the authority of UN Chapter VII action had been severely damaged.
  • When NATO finally conducted its “decisive” operation which brought the conflict to a provisional halt, the legal framework had not changed. Hence, it was demonstrated that the massive NATO operation was unlawful, as it was inconsistent with the legal position that had been previous upheld so vigorously, or the previous position had been unmasked as merely a political tactic to avoid exposing UNPROFOR to risk, at the expense of some 100,000 citizens of Bosnia and Herzegovina, who had been murdered under the very eyes of United Nations forces.

In the light of these confusions, it might be useful to investigate a little more closely the true nature of the concepts of neutrality and impartiality in humanitarian operations.

The Definition of Neutrality and Impartiality in General

  1. Two Overlapping Principles

Neutrality and impartiality are generally mentioned in the same breath where their application to humanitarian action is concerned. Indeed, on occasion the two principles are used interchangeably. However, they are somewhat distinct and should be regarded as partially overlapping principles, rather than as synonyms. It also must be borne in mind that the meaning of these terms in the context of humanitarian operations is not necessarily the same as in the context of the traditional laws of war.

  1. Neutrality: a Principle of Abstention

In the context of humanitarian action, the International Committee of the Red Cross and Red Crescent defines neutrality is a principle of abstention. A third party to a conflict must not undertake (or possibly permit) activities which would assist the war effort of either party to a conflict. Similarly, it might be added in parallel with the law of war definition of the term, a third party must not engage in activities beyond her obligations in general international law which would hinder the conduct of either belligerent. [See Haug, Neutrality as a Fundamental Principle of the Red Cross, __ International Review of the Red Cross (__) 627.

C. Impartiality: A Principle of Action

In the humanitarian context, impartiality is defined as a principle of action. Whatever humanitarian action is being undertaken (which, to many, implies that such action must be not be unneutral in the above sense), it must be administered in accordance with an objective standard which is applied equally to all parties. Contrary to the claims of some parties to a conflict, this does not mean that all sides must receive the same amount of assistance. Instead, assistance is to be rendered on the basis of the objective criteria of need, without regard to any other considerations.

  1. Context of Application and Differing Layers of Relativity

It is the contention of this brief paper that the doctrine of impartiality and neutrality applies differently, according to the context of its application. That is to say, the legal quality of the principles differs and the consequences of their violation may differ. As will be indicated below, the context of application of the doctrine relates to:

  • their invocation as constitutional principles;
  • their invocation as rules of process (code of conduct);
  • their invocation as part of the substantive justification of conduct;
  • their invocation in the context of collective security powers.

In addition to the differing legal nature of the doctrine, there arises a second, complicating phenomenon. The standard of action demanded by the principles of neutrality and impartiality differs according to the context of application. Hence, the doctrine is relative in two senses: neither its legal quality nor its content is fixed, or absolute.

The Differing Legal Character of the Principles of Neutrality and Impartiality

It may be convenient to consider the four principal contexts of application of the doctrine in turn. In each of these categories, it is possible to distinguish certain typical activities, which are commonly associated with humanitarian action. These activities relate to:

  • reporting of the situation, including violations of humanitarian standards;
  • the consensual delivery of assistance;
  • the insistence on the delivery of assistance;
  • the suppression of gross violations of the jus cogens rules;
  • activities aimed at restoring civil society in the target area.

Due to requirements of space, it will unfortunately not be possible to address each of these kinds of activities in relation to the four main contexts of application. It is hoped that it will be possible to do so when a fuller exposition of the issues can be offered.

A. A Constitutional Requirement for Some Actors (ICRC)

There may exist actors that are obliged to follow a particular definition of the twin principles according to their own founding instrument or internal constitutional law. Hence, the Fundamental Principles of the Red Cross and Red Crescent Movement, reaffirmed at the 25th International Conference of the Movement in 1986, establish for its operations the following:

Impartiality: [The movement] makes no discrimination as to nationality, race, religious belief, class or political opinions. It endeavours to relieve the suffering of individuals, being guided solely by their needs, and to give utmost priority to the most urgent cases of distress.

Neutrality: In order to continue to enjoy the confidence of all, the Movement may not take sides in hostilities or engage at any time in controversies of a political, racial, religious or ideological nature.

This would indicate that for a non-governmental entity like the Movement, strict criteria of neutrality and impartiality are constitutionally mandated. However, in terms of the legal quality of the principles, it should be noted that this is entirely a matter of internal regulation. A violation of these principles would not necessarily violate international legal obligations (an exception would lie in the administration of functions under a treaty based mandate which requires the absolute application of the principles, see immediately below).

The concrete definition of the obligations of neutrality and impartiality given above is highly specific. Even if there existed a general principle of neutrality and impartiality in general custom, applicable for all actors under all circumstances, it is unlikely that it would mirror the definition given above. The requirement of not taking part in controversies of a political nature, for example, would not appear to be a requirement of general application.

In pursuit of the principles constitutionally defined, the Red Cross and Red Crescent Movement has in the past often considered it inopportune even to fulfill the first, least invasive function of international humanitarian action: that of the reporting of violations of essential humanitarian principle (although recently a change can be observed in this respect). Once again, this fact in itself demonstrates that neutrality and impartiality defined at such a restrictive level cannot be seen as evidence of a definition which is opposable beyond the internal constitutional context of the organization. Similarly, the fact that the Movement would deem it improper to participate in the enforcement of humanitarian access or in the suppression of consistent violations does not indicate that such activities are, in general international law, prima facie in conflict with the principles of neutrality and impartiality.

B. Neutrality and Impartiality as Rules of Process

Where international action is permissible in general international law, the principles of neutrality and impartiality are rules of process. They operate by way of a code of conduct, the contents and possible binding effect of which depends, once again, on the concrete circumstances.

International humanitarian action is prima facie permissible where it occurs with the consent of the target government. In certain circumstances, that government is obliged to give its consent. [See Griffith, Levine and Weller, Sovereignty and Suffering, in Harriss, ed. the Politics of Humanitarian Intervention (1995), 33, 40ff] More controversially, the International Court of Justice seems to have held in the Nicaragua case that “there can be no doubt that the provision of strictly humanitarian aid to persons or forces in another country, whatever their political affiliations or objective, cannot be regarded as unlawful intervention, or as in any other way contrary to international law.” [1986 ICJ 124]

The legal quality of the doctrine of neutrality and impartiality in the context of consensual humanitarian action depends on its concrete source, as will be indicated below. Where the doctrine applies as a matter of law, the consequences of its violation are obvious. If the operation is administered in a way which violates the principles of neutrality and impartiality, then this represents a specific instance of wrongful conduct (assuming state actors or intergovernmental organizations are engaged in the conduct in question). The wrongfulness of the conduct lies in a violation of the process principle of neutrality and impartiality in itself, and not in the fact that the humanitarian action was undertaken in the first place.

The legal character of the principle of neutrality and impartiality can be established in a number of ways. It can be derived from general treaty obligations which cover the situation at hand. For example the 1977 Additional Protocol II to the Geneva Conventions of 1949 provides in Article 18 (2) that:

If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as foodstuffs and medial supplies, relief action for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned.

An entity engaging in humanitarian action on the basis of this Article, or on a similar treaty basis, would be required to conduct itself in accordance with the obligations enunciated in that instrument, provided these do no clash with a jus cogens rule.

A commitment to neutrality or impartiality can also be the result of ad hoc arrangements, be they agreements, agreed mandates, etc. For example, the United Nations Emergency Force II (UNEF) was required to [Report of the UN Secretary-General, S/11052/Rev.1, 27 October 1973, para. 4 (f)]:

act with complete impartiality and will avoid actions which could prejudice the rights, claims or positions of the parties concerned … .

Again, the actual definition of what is to be deemed unneutral or partial is determined not by reference to an absolute standard, but it is established in the relevant MOU.

Of course, early peace-keeping practice concerned mostly international conflicts and the stabilization of cease-fires. Such operations depended on the consent of the parties on whose territory the operation was to be deployed. Hence, neutrality and impartiality were considered essential operating rules for peace-keeping, as they related to the relative balance of forces of the parties whose consent had to be attracted. As the UN Secretary-General found in 1959 [Report of the UN Secretary-General (UNEF I), A/3302, 6 November 1959]:

It follows from its terms of reference that there is no intent for the establishment of the Force to influence the military balance in the present conflict and, thereby, the political balance affecting efforts to settle the conflict.

A similar view of the UN Secretary-General was however expressed in relation to the Congo, mainly an internal conflict with a strong humanitarian dimension [Report of the Secretary-General, S/4389, 18 July 1960]:

… it follows from the rule that the United Nations units must not become parties in internal conflicts, that they cannot be used to enforce any specific political solution of pending problems or to influence the political balance decisive to such a solution.

This view of the Secretariat was, however, challenged and essentially overruled by the Security Council and the General Assembly which, somewhat contradicted its earlier mandate in Resolution 149 (196), above, declaring in Resolution 169 (1961), its:

full and firm support for the Central government of the Congo and the determination to assist that Government, in accordance with the decisions of the United Nations, to maintain law and order and national integrity, to provide technical assistance and to implement those decisions.

And, of course, in the Congo, the UN force did play a decisive rule in defeating the secessionist rebellion in Katanga, and in re-establishing one source of central authority, effectively displacing the groups which had been led by the late Patrice Lumumba. Still, even with respect to non-humanitarian aims, the UN did “interfere” in a conflict in favour of a particular outcome.

However, the Congo case is rather a special one, which should probably be better analyzed as a case where action was undertaken under the UN’s authority relating to international peace and security, without the consent of all the effective authorities in the theatre of operations. And even in that instance, the Security Council reaffirmed, for example in Resolution 146 of 9 August 1960, para. 4.:

that the United Nations Force in the Congo will not be a party to or in any way intervene in or be use to influence the outcome of any internal conflict, constitutional or otherwise.

This practice once again confirms the obvious finding that the United Nations itself favours the principle that it should not prejudice the outcome of an internal conflict, even if it ameliorates its consequences through peace-keeping. With respect to the conduct of humanitarian operations on the basis of consent, the General Assembly appears to have embraced the principles of neutrality and impartiality, as is reflected, inter alia, in General Assembly Resolution 46/182, Annex, on the Strengthening the Coordination of Humanitarian Emergency Assistance of the United Nations, Guiding Principles, para. 2: Humanitarian Assistance must be provided in accordance with the principles of neutrality and impartiality.

Whether this resolution reflects a general legal rule or merely a code of conduct of a more slippery legal nature may be open to question. It is certain, however, that the contents of the twin principles remains relative, depending on the mandate of the operation. For example, there are a number of recent examples of so-called complex peace-keeping operations, undertaken with the consent of all relevant parties to an internal conflict. In Cambodia, the United Nations force was given legal authority to implement parts of the agreement, against the opposition of any individual party to the Paris agreements. In that instance, a mandate-specific definition of neutrality and impartiality would apply. That is to say, action can be taken against the interests of any one party, if this is done on the basis of legal rules that are being consistently applied against all, and which were originally accepted by all.

C. Substantive Principles

The doctrine of neutrality and impartiality assumes a substantively justificatory role where governments undertake humanitarian actions, including those involving the deployment of armed forces, which, according to many scholars, are not necessarily prima facie lawful, and which are not covered by an effective collective security mandate. That is to say, the commitment of the state taking action to the doctrine, and its effective implementation, is a sine quo non for what is sometimes (mistakenly) called lawful humanitarian intervention. If the doctrine is not applied by the intervening state, then the justification of humanitarian action is not available to it and its has committed a violation of the legal rules of non-intervention and quite possible of the prohibition of the use of force.

However, the definition of neutrality and impartiality is once again highly relative and very much dependent on the particularities of the situation. The standard by which compliance with these principles is measured is furnished by the emergency which triggered the action. If the action was necessitated by the destruction of a constitutionally relevant segment of a population by the local government or another authority, forcible measures designed to avert that situation are of course perfectly permissible. Or if an armed faction obstructs the delivery of humanitarian aid to a threatened population, armed action would similarly be permissible, provided that similar action is taken with respect to all factions engaging in similar practices with similarly disastrous results.

The application of the twin principles in such circumstances is therefore related to the core humanitarian value, usually protected by way of a jus cogens rule, which is to be protected through the action. That value must be defended with equal vigour in relation to all parties to the conflict. A failure to exhibit such impartiality in the administration of core values through international humanitarian action renders the entire operation unlawful, by virtue of violating the substantive principle of impartiality. Similarly, action which goes beyond that which is strictly necessary to secure the core value at issue, and which is likely to prejudice the relative standing of the parties to the conflict, renders the entire operation unlawful, as it violates the substantive rule of neutrality.

D. Collective Security Powers

Where a competent organization of arrangement of collective security authoritizes action, including forcible action, to implement certain core values, the legal quality of the principles of neutrality and impartiality changes again. To say it in a word: the principles are not legally necessary, and only operate as an optional guideline for good peace-enforcement practice. In principle, the UN Security Council would be free to determine that one particular party to a conflict constitutes a threat to the peace, and take action exclusively directed against said party, on the basis of that finding alone.

In the case of Haiti, the Council authorized in Resolution 940 (1990) a Chapter VII operation to:

form a multinational force under unified command and control and, in this framework, to use all necessary means to facilitate the departure from Haiti of the military leadership … and the restoration of the legitimate authorities of the Government of Haiti, and to establish and maintain a security and stable environment …

The UN force itself was authorized to assist the legitimate Government in various ways. Of course, the explanation for such action lies again in the relativity of the principles of neutrality and impartiality. It could be argued that the Security Council mandate was directed equally against all parties that had violated the core value at issue (protecting the democratic mandate granted in a democratic election against an unconstitutional coup). It only so happened that the only party which had violated that value was the “military leadership” whose departure was to be facilitated by force of arms, if necessary.

The relative role of the twin principles in the implementation of humanitarian core values in a stricter sense through enforcement action can be explained more easily. In the case of Bosnia, for example, the Security Council identified that starvation of civilians, or direct attacks on civilians, were clearly violative of essential core values of humanitarian law, enshrined in erga omnes and jus cogens rules; rules establishing criminal responsibility for states and individuals alike. It authoritatively confirmed the application of these rule to the conflict, and made clear that no party would be permitted to engage in warfare through their violation.

The threat of military enforcement action was not directed against any particular party. Instead, it was the Serb entity which, through continued violation of these clearly identified values of international constitutional standing, identified itself as a target for the application of enforcement powers. As the Council had indicated a willingness to protect the values it had identified against all possible violators, it was not acting impartially. And as the Security Council was not depriving the Bosnian Serbs of a lawful means of warfare in suppressing the slaughter of civilians for the purpose of ethnic cleansing, it did not act in a way that could be described as unneutral.

Of course, as was indicated at the outset, the UN Secretariat did not really act in accordance with this legal basis. Instead, it chose to accept the views of one party to the conflict, thus undermining the entire UN operation in Bosnia and helping to lead that country towards disaster. This cautious attitude may well have been based on the Somali experience. In that case a multilateral force was authorized to take all necessary measures to create a secure environment for the delivery of humanitarian aid. The subsequent UN force, operating under Chapter VII, was given a far broader mandate, to establish the conditions necessary for the re-establishment of civil society. To that end, the force engaged in attempts to ‘intervene’ in the actual political balance of the country, not only by denying those controlling territory and population the means to regulate access of humanitarian supplies, but by attempting to disarming one particular faction. When hostilities erupted, the UN identified the responsible party and, in Resolution 837 (1993), reaffirmed the authority of the UN force to take all necessary measures against those responsible, including the establishment of effective authority throughout Somalia, and the arrest, detention, prosecution, trial and punishment of the individuals involved. Once again, such action against one particular party was not considered, in a legal sense, unneutral or partial, although the political assessment of the situation was perhaps somewhat different.

The relative isolation of the twin principles from values which are to be implemented through collective security action can be illustrated particularly well in relation to the crisis in Rwanda. Stamping out proscribed conduct in a way which a belligerent party might consider an ‘interference’ with the conflict is clearly considered to be consistent with the principle of impartiality. In Resolution 929 (1994) of 22 June 1994 concerning the situation in Rwanda, paras. 2, 3, the Security Council:

2. Welcomes also the offer by the Member States to cooperate with the Secretary-General in order to achieve the objectives of the United Nations in Rwanda through the establishment of a temporary operation under national command and control aimed at contributing in an impartial [emphasis added] way, to the security and protection of displaced persons, refugees and civilians at risk in Rwanda, on the understanding that the costs of implementing the offer will be borne by the Member States concerned;

3. Acting under Chapter VII of the Charter of the United Nations, authorizes the Member States cooperating with the Secretary-General to conduct the operation referred to in paragraph 2 above using all necessary means to achieve the humanitarian objectives set out in subparagraphs 4 (a) and (b) of Resolution 925 (1994);

Despite the fact that the forcible mandate was factually directed at a particular party which had engaged in a certain, proscribed conduct, its implementation was explicitly considered an “impartial act”.

Conclusions and Lessons for the Future

The principles of neutrality and impartiality are mandatory for organizations or institutions which are constitutionally obliged to comply with them. However, this is a matter of the internal constitutional law of the respective actor.

In relation to other actors, the principles may be mandatory if they operate within the framework of general or specific legal regulation imposing the principles upon them as a matter of law. Frequently, the acceptance of the principles will be a pre-condition for the consent for the operation by the target state. The precise content of the principle will depend on the specific source of obligation which renders it applicable to the situation at hand.

Especially within the context of a UN peace-keeping mandate, a wide range of activities may be permissible to secure the implementation of the settlement agreed by the parties themselves. This can include the authoritative identification of a party violating the terms of the settlement and the taking of countermeasures against such a party. In practice, however, the extent to which such powers are used depends on the resolve and resources of the international agency involved.

If states engage in international humanitarian action in the absence of the consent of the target state, and in the absence of a mandate granted by the UN Security Council (or possibly a competent regional organization or arrangement), a commitment to the principles of neutrality and impartiality is part of the necessary international legitimization of such action. Again, the precise content of the twin principles depends on the particularities of the situation.

In several recent instances the UN Security Council has authoritatively confirmed the absolute impermissibility of certain activities of parties to the conflict. They include ethnic cleansing, genocide, attacks on civilians and the denial of humanitarian assistance and medical aid. Insistence on compliance with these requirements, even through the use of force, can never be an unneutral or partial act.

Finally, the implementation of a Chapter VII mandate which goes beyond that which is required of the parties to a conflict by peremptory rules of general international law can also not be considered a neutral or partial act. Activities conducted strictly in pursuit of such a mandate are sui generis.

The confused and legally unfounded practice of the UNPROFOR in relation to the twin principles will have damaged the faith of many states in the UN as an entity which can authoritatively administer the relative standard of neutrality and impartiality, instead of simply complying with the subjective views of the party willing to violate essential obligations. In future, it is therefore essential for the target states of international operations of this kind to go beyond identifying their respective obligations in an agreement which is to be implemented through international action, or in a merely nominal Chapter VII mandate. Not only the enforcement powers, but also the enforcement obligations of an implementing force must be defined with clarity before a government can be expected to accept its presence or acquiesce in it. In this respect, access to authoritative mechanisms for the identification of violations must be coupled with a mechanism to establish accountability for the actions of an implementing force.

Marc Weller is the Deputy Director of the Centre of International Studies in the University of Cambridge, a member of the Faculty of Law of the University of Cambridge, a Fellow of the University of Cambridge Research Centre for International Law, a Fellow of Hughes Hall and Director of Studies in Law of Darwin College. He is the co-editor of The Kuwait Crisis in International Law, and the editor of Iraq and Kuwait: the Hostilities and their Aftermath.

Tagged with:
 

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>