Treaties, States Parties and Commentaries
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Commentary of 2016 
Article 4 : Application by neutral Powers
Text of the provision
Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded and sick, and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict, received or interned in their territory, as well as to dead persons found.
Reservations or declarations
None
Contents

A. Introduction
908  The outbreak of an international armed conflict triggers the applicability of specific rules of international law. Without prejudice to other rules of international law, international law applicable to international armed conflicts, as traditionally understood, is composed of both international humanitarian law and the law of neutrality. These are separate yet complementary legal frameworks, in that the law of neutrality, at least in part, has the same object and purpose as international humanitarian law of mitigating and containing the adverse effects of an international armed conflict.[1]
909  The law of neutrality regulates relations between States which are Parties to an international armed conflict and States which are not Parties to the conflict (neutral Powers).[2] Thus, the law of neutrality is composed of rules applicable to both categories of States. While the entire body of the law of neutrality is applicable to every international armed conflict, in practice the full panoply of rights conferred by this body of international law will not always be invoked or enforced by the neutral Powers or the Parties to the armed conflict. This is because many of these rights apply only to specific types of events, which do not necessarily arise in every international armed conflict. Nonetheless, some of the obligations contained in the law of neutrality, such as respect for the inviolability of neutral territory, will apply in every such conflict.
910  The Geneva Conventions contain several rules in which the terms ‘neutral Powers’, ‘neutral countries’ or ‘neutral States’ are used interchangeably.[3] By referring to these terms in 1949, the Conventions acknowledged, for the purposes of international humanitarian law, the continued validity of the law of neutrality following the adoption in 1945 of the UN Charter and its system of collective security.[4] The same conclusion can also be drawn from the provisions of the Geneva Conventions which regulate the system of ‘Protecting Powers’, since these provisions presuppose the existence of neutral Powers.[5] Nevertheless, the drafters of the 1949 Geneva Conventions deliberately refrained from addressing questions regarding the substantive rules of the law of neutrality.[6]
911  Article 4 is an example of a rule of the Geneva Conventions which applies to neutral Powers. It regulates situations in which persons protected by the First Convention are in the territory of a neutral Power. With regard to these persons, the neutral Power is bound to apply, in its own territory, the provisions of the First Convention by analogy. This obligation reflects the Convention’s purpose: to ensure that persons protected by the Convention receive that protection wherever they may be.
912  The Second Convention contains a provision (Article 5) which – apart from the logical addition of the ‘shipwrecked’ – is identical to the present article. Additional Protocol I contains a similar rule, but with a much wider scope of beneficiaries.[7] The absence of similar provisions in common Article 3 and in Additional Protocol II is explained by the fact that the law of neutrality does not apply in non-international armed conflicts.
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B. Historical background
913  The 1907 Hague Convention (V) is the only treaty dealing specifically with the law of neutrality applicable to land warfare. Article 15 states that ‘[t]he [1906] Geneva Convention applies to sick and wounded interned in neutral territory’.[8] Thus, the law of neutrality applicable to land warfare referred to the applicability of the Geneva Convention. The Geneva Conventions of 1864, 1906 and 1929 did not contain any such rule.
914  In the draft of the First Convention submitted to the 1948 Stockholm Conference, the ICRC proposed, as a novelty, the insertion of the following rule: ‘Neutral Powers shall apply the stipulations of the present Convention by analogy to the wounded and sick, as also to members of the medical personnel and to chaplains, who are members of belligerent armies and who may be interned in their territories.’[9] The incorporation of this rule in the First Convention was considered necessary to ensure that the most recent (1949) version of the Convention would be the instrument of reference for neutral Powers in such circumstances. Furthermore, the proposed wording ensured that the rule would apply not only to the wounded and sick, as was already the case under the 1907 formulation, but also to the armed forces’ medical personnel and chaplains. A slightly reworded proposal was accepted by the Stockholm Conference.[10]
915  At the 1949 Diplomatic Conference, the rule was extended to include protected persons ‘received’[11] and ‘dead persons found’[12] in neutral territory.
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C. Discussion
1. Neutral Powers
916  Article 4 binds neutral Powers.[13] This term is used in several provisions of the 1907 Hague Convention (V) and of the 1949 Geneva Conventions.[14] The notion of ‘neutral Power’ is not defined anywhere in these treaties. As a matter of customary international law, ‘neutral Power’ refers to a State which is not a Party to an international armed conflict.[15] Thus, Article 4 can be considered to bind all States which are not Parties to an international armed conflict in the sense of common Article 2.[16]
917  The binding nature of Article 4 with regard to all these States does not depend on how they view or characterize their status as not being Parties to a particular conflict, i.e. whether they consider or have declared themselves to be ‘neutral’ in the sense of being bound by the rights and obligations of the law of neutrality. Nor is it affected if a State chooses to adopt a stance of so-called ‘non-belligerency’, regardless of whether doing so is lawful as a matter of international law.[17]
918  These considerations are immaterial when it comes to determining the scope of application of Article 4, a provision dealing solely with obligations of a humanitarian nature. Thus, the scope of application of Article 4 includes, but is not limited to, States considering themselves permanently neutral, States proclaiming themselves non-belligerent, and States serving as Protecting Powers within the framework of Article 8. The same holds true if the UN Security Council has taken binding preventive or enforcement measures, such as sanctions or the authorization of the use of force, against a particular State under Chapter VII of the UN Charter. The exercise of these measures may lead to, or occur in the context of, a situation which qualifies as an international armed conflict. Irrespective of whether the law of neutrality needs to be complied with in these circumstances, Article 4 binds all States which are not Parties to that international armed conflict.
919  Two further considerations are equally immaterial for the applicability of Article 4: first, whether diplomatic relations exist between the neutral Power and the Party to the armed conflict; and second, whether the persons covered by Article 4 are entitled to be treated as prisoners of war.[18] The opposite view would run counter to the purpose of Article 4, a provision inspired exclusively by humanitarian considerations, which is to ensure that persons protected by the First Convention receive the protection of the Convention wherever they may be.
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2. Conditions for the applicability of Article 4
920  Article 4 requires a neutral Power to apply, by analogy, the relevant provisions of the First Convention when (a) persons protected under the First Convention are (b) received, interned or found in its territory.
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a. Persons covered
921  Four categories of persons protected under the First Convention are potential beneficiaries of the obligation laid down in Article 4:
(i) Wounded and sick. The term ‘wounded and sick’ refers to the persons covered by Article 12(1): members of the armed forces and of groups assimilated thereto who are covered by Article 13 and who are wounded or sick.[19] From the moment these persons cease to qualify as ‘wounded’ or ‘sick’, they are no longer protected by the First Convention, and their status in neutral territory will be regulated on the basis of the law of neutrality, along with other applicable norms of international and domestic law.[20]
The Third Convention provides for the possibility that seriously wounded and seriously sick prisoners of war be accommodated in a neutral country.[21] While Article 4 of the First Convention may also be applicable in such circumstances, the neutral Power must discharge its obligations under the Geneva Conventions by applying the more detailed rules of the Third Convention.[22]
(ii) Members of the medical personnel of the armed forces of the Parties to the conflict. This category includes persons covered by Articles 24 and 25, i.e. permanent military medical and religious personnel and auxiliary medical personnel. In view of the object and purpose of Article 4, based on the provision’s drafting history, and since they are entitled to protection under the First Convention, persons covered by Articles 26 or 27 – who are not members of the armed forces of the Parties to the conflict but civilians – are also included within the notion of ‘medical personnel’ covered by Article 4.[23]
(iii) Chaplains of the armed forces of the Parties to the conflict. This category refers to the religious personnel covered by Article 24. In view of the object and purpose of Article 4, based on the provision’s drafting history, and since they are entitled to protection under the First Convention, persons covered by Articles 26 or 27 – who are not members of the armed forces of the Parties to the conflict but civilians – are also included within the notion of ‘chaplains of the armed forces of the Parties to the conflict’ covered by Article 4.
(iv) Dead persons. This category, in line with the scope of application of the First Convention, and in particular its Articles 16 and 17, is limited to deceased persons belonging to one of the categories listed in Article 13.
922  If persons do not fall into one of the above categories, including when they are wounded or sick, the neutral Power has no obligations towards them on the basis of Article 4. Accordingly, except with regard to persons specifically covered by Article 13 of the First Convention, a neutral Power has no obligations on the basis of this provision towards civilians of a Party to an international armed conflict present in its territory, including when they are wounded or sick. A neutral Power has no obligations either, on the basis of Article 4, towards missing persons who may be in its territory.[24] However, the neutral Power may have obligations towards those persons on the basis of other provisions of international humanitarian law, such as Articles 24(2) and 132(2) of the Fourth Convention and Article 19 of Additional Protocol I. Further, the neutral Power may also have obligations vis-à-vis such persons on the basis of other branches of international law, such as human rights law and refugee law.[25]
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b. Received, interned or found in the territory of a neutral Power
923  The obligation contained in Article 4 is activated from the moment persons covered by this provision are ‘received or interned’ or, in the case of dead persons, ‘found’ in the territory of a neutral Power. In its report to the 1949 Diplomatic Conference, the committee in charge of drafting Article 4 explained that ‘[t]he words “received” or “interned” shall apply, as regards the first, to the medical personnel and chaplains who are not necessarily to be interned, and as regards the second, to wounded and sick persons’.[26] In other words, the two concepts refer to the different substantive rules with which the neutral Power needs to comply in respect of persons protected by Article 4.[27]
924  For Article 4 to apply, the mere presence of persons covered by this provision in the territory of a neutral Power arguably suffices.[28] It is immaterial which factors explain this presence, and whether such presence is lawful or unlawful as a matter of international or national law. Among other conceivable scenarios, their presence may be the result of a previous arrangement involving the consent of the neutral Power, for example with regard to the passage of wounded or sick persons through its territory[29] or through its airspace in a medical aircraft.[30] Their presence may also be due to an unexpected situation, such as distress, or to the persons seeking shelter in the territory of the neutral Power.[31] In practical terms, of course, the obligation to apply by analogy the provisions of the First Convention can only be considered to have been activated once the neutral Power’s authorities have been made aware of such presence.
925  Article 4 does not preclude the simultaneous applicability of more detailed rules regulating the status and treatment of persons covered by this provision in neutral territory. This would be the case, for example, for seriously wounded and seriously sick prisoners of war accommodated in a neutral country.[32]
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3. Substantive obligation: ‘shall apply by analogy the provisions of the present Convention’
a. General considerations
926  During the 1949 Diplomatic Conference, one delegation suggested that affirming the substantive requirement which is at the heart of Article 4 may be redundant (i) in view of common Article 1, which requires all ‘High Contracting Parties’, including neutral Powers, to ‘respect and to ensure respect for the [four Geneva Conventions] in all circumstances’; and (ii) in cases where the Parties to the armed conflict already have diplomatic representatives in the territory of the neutral Power, since these representatives ‘could look after the welfare of their nationals’.[33] Despite these arguments, it was considered beneficial to state explicitly that, each time the conditions of applicability of Article 4 are fulfilled, a neutral Power must comply with the provisions of the First Convention.
927  Contrary to Article 4(B)(2) of the Third Convention, Article 4 of the First Convention does not explicitly state that the obligation for neutral Powers to apply the relevant provisions of the First Convention by analogy is ‘without prejudice to any more favourable treatment which these Powers may choose to give’. Nevertheless, a neutral Power may decide to give more favourable treatment at its own initiative.
928  When persons covered by Article 4 are in its territory, the neutral Power is to ‘apply by analogy the provisions of the present Convention’. In other words, it needs to recognize that these persons are protected by the First Convention, and accord them the respect and protection associated with that status. Since, by definition, neutral Powers are not Parties to the international armed conflict, the application expected of them is ‘by analogy’, as if they were Parties to the conflict (mutatis mutandis).[34]
929  The application of the provisions of the First Convention by analogy means that the neutral Power will need to undertake certain activities with regard to the persons referred to in Article 4. Doing so cannot be considered as interference in the conflict, as a contribution to the belligerent State or as turning the neutral Power into a Party to the conflict.[35] Therefore, compliance with Article 4 cannot be considered as a violation of a neutral Power’s obligations under the law of neutrality, for example with regard to the classic requirement to treat both Parties to an international armed conflict impartially. The inclusion of Article 4 in the First Convention, in other words, serves ‘to protect [neutral Powers] from criticism by belligerent Powers regarding favourable treatment accorded by a neutral Power to the wounded and sick of an enemy belligerent’.[36]
930  The obligation on a neutral Power to apply the relevant provisions of the First Convention is without prejudice to the fact that the persons in question may, in the territory of that Power, benefit from the applicability of other legal frameworks, such as human rights law, refugee law, diplomatic protection and domestic law. Moreover, it in no way qualifies or suspends the obligation on the neutral Power to bring before its courts persons alleged to have committed, or to have ordered to be committed, grave breaches of the Conventions.[37]
931  The First Convention does not contain a list of specific articles which have to be implemented by analogy by neutral Powers.[38] In each instance, based on the specific circumstances, application will depend on the object of the relevant rules.
932  Article 4 does not address the rights and obligations of the neutral Power with regard to objects protected under the First Convention, such as mobile medical units or military medical transports. In light of the object of the First Convention, however, whenever objects entitled to protection under that Convention are present in neutral territory, the neutral Power will need to apply the relevant rules by analogy.[39] With regard to medical aircraft, Article 37 applies.
933  Article 4 is silent as to which State, in the end, bears the costs, for example of hospital accommodation or internment, incurred by the implementation of this provision. Resort can be had to the logic underpinning provisions such as Article 37(3) of the First Convention, which stipulates that the relevant costs ‘shall be borne by the Power on which they depend’.[40] In most circumstances, this will be the State of their nationality. However, where someone fights on behalf of a State other than the State of his or her nationality, the costs of accommodation or internment must be borne by the State on whose behalf the person was fighting.
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b. Application by analogy with regard to the wounded and sick
934  With regard to the wounded and sick, the key point is that the neutral Power has to apply the provisions of the First Convention regulating their status and treatment. This means that the neutral Power must ‘respect and protect’ them in the sense of Article 12. For example, when wounded and sick persons are in its territory, the neutral Power must record ‘any particulars which may assist in [their] identification’ as required under Article 16. Furthermore, if the possibility of the persons’ presence on its territory is known, the neutral Power must also, and this in accordance with Article 15, ‘take all possible measures to search for and collect’ them. Article 4 does not address the question of whether the neutral Power has to ensure that the wounded and sick of a Party to the conflict in its territory take no further part in operations of war. Contrary to Article 37(3) of the First Convention, the fact that there are circumstances in which international law may require a neutral Power to detain the wounded and sick is not mentioned in this provision.[41] The circumstances in which this is required are exclusively regulated by the law of neutrality, not by international humanitarian law. While the Geneva Conventions were drafted on the assumption that there are circumstances in which a neutral Power is required to do this, the drafters chose not to explicitly address this issue within the context of the Conventions.[42] Indeed, during the 1949 Diplomatic Conference, it was emphasized that ‘each Contracting Party would have complete liberty of interpretation’, as far as how each Contracting Party viewed the rules of the law of neutrality when called upon to apply them in any given context in the future.[43]
935  In Article 11 of the 1907 Hague Convention (V), the requirements of international law on this matter with regard to able-bodied combatants were stated as follows: ‘A neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war’.[44] Article 14 of the same Convention requires that the neutral Power guard the wounded and sick of a Party to the conflict which it has authorized to pass over its territory, as well as those ‘who may be committed to its care’, so as ‘to ensure their not taking part again in the military operations’. It is outside the scope of this commentary to examine the current status of these rules of the Hague Convention (V).[45] It can only be observed that, since 1907, States themselves have not publicly re-examined whether these rules still reflect the law.
936  Persons who have been received by a neutral Power in its territory and whom the neutral Power is required to intern on the basis of international law must be treated as prisoners of war, in line with Article 4(B)(2) of the Third Convention.[46] This reflects the application of Article 14 of the First Convention by analogy. Of course, the requirement to treat them as prisoners of war remains without prejudice to the possibility that the neutral Power may decide to grant them more favourable treatment.
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c. Application by analogy with regard to medical and religious personnel
937  Persons covered by Article 24 (permanent medical and religious personnel who are members of the armed forces) or by Article 26 (staff of National Red Cross or Red Crescent Societies and of other voluntary aid societies assisting the medical services of their own State’s armed forces) who are in the territory of a neutral Power must be allowed to return to the Party to the conflict to which they belong (Article 30). These persons must be treated by the neutral Power, pending their return, at least in the same way as prisoners of war.[47] However, applying the text of the Convention at face value, the conclusion may be reached that they may be retained by the neutral Power on the basis of Article 28, if required by ‘the state of health, the spiritual needs and the number of’ the wounded and sick of the Parties to the conflict.[48] It has been observed that, in practice, the retention-regime is ‘not really adapted to a neutral state’. On the basis of this observation, the argument has been made that, unless the Party to the conflict on which they depend has given its consent to the effect that they can be retained, persons covered by Articles 24 and 26 must be freed by the neutral Power.[49]
938  Persons covered by Article 25 (auxiliary medical personnel) who are in the territory of a neutral Power may be detained by that Power so that they cannot again take part in military operations. Based on the combined application of Article 29 of the First Convention and Article 4(B)(2) of the Third Convention, they must be treated as prisoners of war.[50]
939  Persons covered by Article 27 (medical personnel of a recognized society of a neutral country which assist the medical services of a Party to the conflict) who are in the territory of another neutral Power may not be detained or retained by that Power. In accordance with Article 32, they must be allowed to return to their country.
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d. Application by analogy with regard to the dead
940  When persons belonging to one of the categories in Article 13 are found dead in the territory of a neutral Power, Articles 16 and 17 apply by analogy. Thus, for example, when dead persons of one of the Parties of the conflict fall into its hands, the neutral Power must record ‘any particulars which may assist in [their] identification’ as required by Article 16. On the basis of the application by analogy of Article 15(1), the neutral Power must also ‘search for the dead’.[51]
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Select bibliography
Bindschedler, Rudolf L., ‘Die Neutralität im modernen Völkerrecht’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 17, 1956, pp. 1–37.
Bothe, Michael, ‘Neutrality: Concept and General Rules’, version of April 2011, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
− ‘The Law of Neutrality’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 549–580.
Castrén, Erik, The Present Law of War and Neutrality, Suomalaisen Tiedeakatemian Toimituksia, Helsinki, 1954, pp. 421–492.
Chadwick, Elizabeth, ‘Neutrality Revised?’, Nottingham Law Journal, Vol. 22, 2013, pp. 41–52.
de Preux, Jean, ‘Conventions et Etats neutres’, Revue internationale de la Croix-Rouge, Vol. 71, No. 776, April 1989, pp. 132–143.
Gioia, Andrea, ‘Neutrality and Non-Belligerency’, in Harry H.G. Post (ed.), International Economic Law and Armed Conflict, Martinus Nijhoff Publishers, Dordrecht, 1994, pp. 51–110.
Heintschel von Heinegg, Wolff, ‘“Benevolent” Third States in International Armed Conflicts: The Myth of the Irrelevance of the Law of Neutrality’, in Michael N. Schmitt and Jelena Pejic (eds), International Law and Armed Conflict: Exploring the Faultlines, Essays in Honour of Yoram Dinstein, Martinus Nijhoff Publishers, Leiden, 2007, pp. 543–568.
Hostettler, Peter, ‘Neutrals, Disarming and Internment of Belligerents’, version of June 2006, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
Hostettler, Peter and Danai, Olivia, ‘Neutrality in Land Warfare’, version of September 2013, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
Kussbach, Erich, ‘Le Protocole additionnel I et les Etats neutres’, Revue internationale de la Croix-Rouge, Vol. 62, No. 725, October 1980, pp. 231–251.
Mears, Dwight S., ‘Neutral States and the Application of International Law to United States Airmen during World War II. To Intern or Not to Intern?’, Journal of the History of International Law, Vol. 15, No. 1, 2013, pp. 77–101.
Monnier, Jean, ‘Développement du droit international humanitaire et droit de la neutralité’, in Quatre Etudes du droit international humanitaire, Henry Dunant Institute, Geneva, 1985.
Neff, Stephen C., The Rights and Duties of Neutrals: A General History, Manchester University Press, 2000, pp. 191–217.
Norton, Patrick M., ‘Between the Ideology and the Reality: The Shadow of the Law of Neutrality’, Harvard International Law Journal, Vol. 17, No. 2, 1976, pp. 249–311, especially at 254–257.
Ochsner, Richard, Der Transit von Personen und Gütern durch ein neutrales Land im Falle des Landkrieges, Polygraphischer Verlag A.G., Zurich, 1948, pp. 72–80.
Sandoz, Yves, ‘Rights, Powers and Obligations of Neutral Powers under the Conventions’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 86–108.
Schindler, Dietrich, ‘Aspects contemporains de la neutralité’, in Recueil des cours de l’Académie de droit international de La Haye, Vol. 121, 1967, pp. 220–321.
– ‘Transformations in the Law of Neutrality since 1945’, in Astrid J.M. Delissen and Gerard J. Tanja (eds), Humanitarian Law of Armed Conflict: Challenges Ahead, Essays in Honour of Frits Kalshoven, Martinus Nijhoff Publishers, Dordrecht, 1991, pp. 367–386.
Seger, Paul, ‘The Law of Neutrality’, in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict, Oxford University Press, 2014, pp. 248–270.

1 - See ILC, Draft articles on the effects of armed conflicts on treaties, with commentaries, 2011, page 21, where the Draft Articles speak of ‘treaties on the law of armed conflict, including treaties on international humanitarian law’ (emphasis added). See also Christopher Greenwood, ‘Historical Development and Legal Basis’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 2nd edition, Oxford University Press, 2008, pp. 1–43, at 11: ‘International humanitarian law thus includes most of what used to be known as the laws of war, although strictly speaking some parts of those laws, such as the law of neutrality, are not included since their primary purpose is not humanitarian.’
2 - For the definition of ‘neutral Powers’, see paras 916–919. For the definition of ‘international armed conflict’, as well as for a discussion of when a State becomes a ‘Party to an international armed conflict’, see the commentary on common Article 2, section D.2. The criteria for determining whether a neutral State has become a Party to an international armed conflict are found exclusively in international humanitarian law, not in the law of neutrality.
3 - See First Convention, Article 4 (‘neutral Powers’), Article 8(1) (‘neutral Powers’), Article 10 (‘neutral State’ in 10(2) and ‘neutral Power’ in 10(4)), Article 11(2) (‘neutral territory’ and ‘neutral Power’), Article 27 (‘neutral country’ in 27(1), ‘neutral Government’ in 27(2) and ‘neutral country’ in 27(4)), Article 37 (‘neutral Power’ in 37(1) and ‘neutral territory’ in 37(3)) and Article 43 (‘neutral countries’).
4 - See the prominent treatment accorded to the ‘principle of neutrality’ in ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996, paras 88–89. See also Edward R. Cummings, ‘The Evolution of the Notion of Neutrality in Modern Armed Conflicts’, Military Law and Law of War Review, Vol. 17, 1978, pp. 37–69, at 46–47.
5 - See common Article 8 (Article 9 in the Fourth Convention). See also Bindschedler, p. 33. When a neutral State performs the role of a Protecting Power in the sense of Article 8, this cannot be considered a violation of the obligations applicable to it on the basis of the law of neutrality, see United States, Law of War Manual, 2015, para. 15.3.2.4.
6 - For detailed references on this point, see paras 934–935.
7 - Additional Protocol I, Article 19.
8 - Similar statements can be found in Article 56 of the 1874 Brussels Declaration, in Article 82 of the 1880 Oxford Manual and in Article 60 of the 1899 Hague Regulations.
9 - Draft Conventions submitted to the 1948 Stockholm Conference, draft article 3, pp. 6–7.
10 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 3, p. 10: ‘Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded and sick, and to members of the medical personnel and to chaplains of belligerent armed forces interned in their territory.’
11 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 46. For a substantive analysis of this modification, see para. 923.
12 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 157 and 165.
13 - See also Article 5 of the Second Convention, which applies equally to ‘neutral Powers’. The Geneva Conventions also use the phrase ‘neutral or non-belligerent Powers’ on two occasions; see Third Convention, Articles 4(B)(2) and 122. This terminological difference has no substantive implications; see Sandoz, pp. 92–93. Furthermore, Article 19 of Additional Protocol I applies to ‘[n]eutral and other States not Parties to the conflict’. The use of this different terminology in Additional Protocol I does not affect the meaning of the term ‘neutral Powers’ in the Conventions; see Sandoz/Swinarski/Zimmermann (eds), Commentary on the Additional Protocols, ICRC, 1987, p. 61. See also Kussbach, pp. 232–235, and Heintschel von Heinegg, p. 554. See also Sandoz, p. 93, who concludes: “We can confirm that when an [international armed conflict] breaks out, states are either belligerent or neutral.’
14 - For an overview of the provisions of the First Convention in which this term, along with its substantively identical counterparts, is used, see fn. 3.
15 - This definition corresponds to the ones reflected in recent restatements of international law drafted by independent groups of experts. See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), Rule 13(d); Manual on International Law Applicable to Air and Missile Warfare (2009), Rule 1(aa); and Helsinki Principles on the Law of Maritime Neutrality, adopted by the International Law Association at its 68th Conference, Taipei, 30 May 1998, Article 1.1. Similarly, see Australia, Manual of the Law of Armed Conflict, 2006, para. 11.3; Canada, LOAC Manual, 2001, paras 1302–1303; and United States, Naval Handbook, 2007, para. 7.1. Article 19 of Additional Protocol I similarly speaks of ‘[n]eutral and other States not Parties to the conflict’ without affecting the meaning of the term ‘neutral Power’ in the Geneva Conventions; see fn. 13. See also Bothe, 2011, p. 1: ‘Neutrality means the particular status, defined by international law, of a State not a party to an armed conflict.’ The Russian Federation’s Regulations on the Application of IHL, 2001, refers to ‘neutral States’ without defining the term.
16 - For an international armed conflict in the sense of common Article 2(1) to exist, there is no requirement for there to have been a declaration of war; see the commentary on that article, section D.1.
17 - As indicated above, the criteria for determining whether a neutral State has become a Party to an international armed conflict are found exclusively in international humanitarian law, not in the law of neutrality. With regard to so-called ‘non-belligerency’, see, with further references, Heintschel von Heinegg, p. 544: ‘there is no basis for concepts such as “benevolent neutrality” or “non-belligerency”’; see also Sandoz, p. 93. For a different view, see Natalino Ronzitti, ‘Italy’s Non-Belligerency during the Iraqi War’, in Maurizio Ragazzi (ed.), International Responsibility Today: Essays in Memory of Oscar Schachter, Martinus Nijhoff, Leiden, 2005, pp. 197–207.
18 - On the latter, see Article 4(B)(2) of the Third Convention.
19 - For the definition of ‘wounded and sick’ in the First Convention, see the commentary on Article 12, section D.2.
20 - On the question of whether the neutral Power must intern them, see paras 934–935.
21 - See Third Convention, Articles 109–117.
22 - The need for the neutral Power to comply with the Third Convention if seriously wounded and seriously sick prisoners of war are accommodated in its territory flows from Article 12(2) of that Convention. While both the First and Third Conventions may – at least temporarily – be applicable simultaneously to persons who are wounded and sick upon falling into enemy hands (see the commentary on Article 14, section C.1), the latter’s rules are much more detailed. This question does not arise for persons who become wounded or sick after having acquired prisoner-of-war status: in that case, they benefit only from the protection of the Third Convention.
23 - Article 26 regulates the status of personnel of National Red Cross or Red Crescent Societies and of other voluntary aid societies recognized and authorized to assist the medical services of their State’s armed forces. Article 27 regulates the personnel of a recognized society of a neutral country lending the assistance of its medical personnel and units to a Party to the conflict. Support for the interpretation that persons covered by Articles 26 or 27 benefit from Article 4 when they are in the territory of a neutral Power flows from the discussion on Article 4 during the 1949 Diplomatic Conference; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 188 and 190.
24 - Missing persons in the territory of a neutral Power are included, however, within the category of ‘persons protected by this Part who may be received or interned within their territory, and to any dead of the Parties to that conflict whom they may find’ referred to in Article 19 of Additional Protocol I. Article 32 of Additional Protocol I also refers to ‘the activities of the High Contracting Parties’, including neutral Powers, in the context of the ‘general principle’ underpinning the section dealing with ‘missing and dead persons’. For a discussion of the missing on the territory of a neutral Power, see Sandoz, pp. 105–106.
25 - Similarly, see ibid. p. 102.
26 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 190. See also p. 46.
27 - For a discussion of these substantive rules, see section C.3.c.
28 - See, in this context, United States, Law of War Manual, 2015, para. 3.7.1: neutral Powers ‘must apply by analogy the rules relating to the treatment of the wounded and sick and of POWs [prisoners of war] when interning such persons under their duties of neutrality’.
29 - See Hague Convention (V) (1907), Article 14.
30 - See First Convention, Article 37.
31 - Similarly, see Sandoz, p. 95.
32 - See Third Convention, Articles 109–117. For the status of the persons in such scenarios, see also Third Convention, Article 4(B)(2).
33 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 119.
34 - See e.g. United States, Law of War Manual, 2015, para. 3.7: ‘In some cases, a rule developed specifically for one situation may be a useful and appropriate standard to apply in a different situation. This is sometimes called an application of a rule by analogy’, referring to Article 4 as an example of a ‘treaty requirement to apply rules by analogy’. See also Jean Salmon, Dictionnaire de Droit International Public, Bruylant, Brussels, 2001, p. 63: ‘on transpose l’application d’une règle d’une relation juridique qu’elle vise expressément à une relation juridique qu’elle ne vise pas expressément’ (‘application by analogy: applying a rule that expressly governs one legal relationship to another not expressly governed by it’).
35 - See also Hague Convention (XIII) (1907), Article 26.
36 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 47. See also Minutes of the Diplomatic Conference of Geneva of 1949, Committee I, Vol. I, meeting held on 26 April 1949, p. 19.
37 - See Article 49(2).
38 - During the 1949 Diplomatic Conference, a proposal was made to have a ‘complete list’ of the provisions of the First Convention that the neutral Power would need to comply with. This proposal was rejected, for ‘no list could provide for all possible cases’; see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 103 and 119. As for the absence of a list of provisions which do not need to be implemented, Article 4 of the First Convention follows, in this respect, the same approach as Article 5 of the Second Convention. Both provisions differ on this point from Article 4(B)(2) of the Third Convention, which gives a list of specific articles which, in certain circumstances, do not need to be applied to persons covered by that provision. By comparison, Article 19 of Additional Protocol I refers to the ‘relevant provisions’ of the Protocol which a neutral Power must apply.
39 - Article 35(1) (transports of wounded and sick or of medical equipment) and Articles 36–37 (medical aircraft).
40 - The same principle is reflected in Article 17(2) of the Second Convention with regard to ‘wounded and sick or shipwrecked persons who are landed in neutral ports’. See also Hague Convention (V) (1907), Article 12: ‘In the absence of a special convention to the contrary, the neutral Power shall supply the interned with the food, clothing, and relief required by humanity. At the conclusion of peace the expenses caused by the internment shall be made good.’ See also Hague Convention (X) (1907), Article 15(2). Other provisions of the Geneva Conventions informed by this logic are Article 116 of the Third Convention and Article 36 of the Fourth Convention. See also Sandoz, p. 94, who nevertheless offers some mitigating considerations.
41 - This is different from some other provisions of the Geneva Conventions which, while not addressing the substantive rules either, do acknowledge that there are circumstances in which a neutral Power may be required to ensure that wounded and sick of the Parties to the conflict are precluded from taking part in ‘operations of war’. See e.g. Article 37(3) of the First Convention, as well as Articles 15 and 17(1) of the Second Convention.
42 - On the fact that the drafters of the Geneva Conventions chose not to address the substantive rules of the law of neutrality, see Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 103 and 220–221, and Vol. II-B, p. 240.
43 - Ibid. Vol. II-A, pp. 105–107.
44 - See also Hague Convention (X) (1907), Article 15, and Hague Rules of Air Warfare (1923), Article 43.
45 - For a historical analysis, see Mears. See also K.V.R. Townsend, ‘Aerial Warfare and International Law’, Virginia Law Review, Vol. 28, 1941–1942, pp. 516–527, at 518–520.
46 - Connected to this article, Article 122 of the Third Convention requires that neutral Powers ‘who may have received within their territory persons belonging to one of the categories referred to in Article 4 [of the Third Convention]’ ‘institute an official Information Bureau for prisoners of war who are in [their] power’.
47 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 188.
48 - See United States, Law of War Manual, 2015, para. 15.16.6.
49 - Sandoz, pp. 97–98.
50 - Ibid. p. 189.
51 - For a discussion of the obligations of neutral Powers with regard to missing persons, see fn. 24.