Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 5 : Application by neutral Powers
Text of the provision
Neutral Powers shall apply by analogy the provisions of the present Convention to the wounded, sick and shipwrecked, 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
954  The outbreak of an international armed conflict triggers the applicability of specific rules of international law. Without prejudice to other rules of international law,[1] 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.[2]
955  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).[3] 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 it confers 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.
956  The Geneva Conventions contain several rules in which the terms ‘neutral Powers’, ‘neutral countries’ or ‘neutral States’ are used interchangeably.[4] 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.[5] 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.[6] Nevertheless, the drafters of the 1949 Geneva Conventions deliberately refrained from addressing questions regarding the substantive rules of the law of neutrality.[7]
957  Article 5 is an example of a rule of the Geneva Conventions which applies to neutral Powers. It regulates situations in which persons protected by the Second Convention are in the territory of a neutral Power. Without prejudice to other legal frameworks which may be applicable to the neutral Power and which may require it to undertake further actions to the benefit of the wounded, sick and shipwrecked, the neutral Power is bound to apply, with regard to these persons and in its own territory, the provisions of the Second 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.
958  The First Convention contains a provision (Article 4) which – apart from the logical non-mention of the ‘shipwrecked’ – is identical to the present article. Additional Protocol I contains a similar rule, but with a much wider scope of beneficiaries.[8] 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
959  Article 15 of the 1907 Hague Convention (V) – the only treaty dealing specifically with the applicability of the law of neutrality to land warfare – states that ‘[t]he [1906] Geneva Convention applies to sick and wounded interned in neutral territory’.[9] Thus, the law of neutrality applicable to land warfare referred to the applicability of the Geneva Convention. No similar reference can be found in the 1907 Hague Convention (XIII), the main treaty dealing specifically with the applicability of the law of neutrality to naval warfare.[10] The same is true with regard to all treaties and documents of international humanitarian law that precede the Second Geneva Convention:[11] none deal with persons at sea protected by international humanitarian law who are in the territory of a neutral Power.
960  The first mention of what eventually became Article 5 of the Second Convention can be found in the draft submitted to the International Conference of the Red Cross in Stockholm in 1948. In this draft, the ICRC had proposed the introduction 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.’[12] This rule was also proposed, in identical terms, with regard to the First Convention (in which it became Article 4). The Stockholm Conference accepted a slightly reworded proposal.[13] At the 1949 Diplomatic Conference, the rule was extended to include protected persons ‘received’[14] and ‘dead persons found’[15] in neutral territory. In line with the scope of application of the Second Convention, the category of ‘shipwrecked’ was added.[16]
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C. Discussion
1. Neutral Powers
961  Article 5 binds neutral Powers.[17] This term is used in several provisions of the 1907 Hague Conventions (V) and (XIII) and of the 1949 Geneva Conventions.[18] 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.[19] Thus, Article 5 can be considered to bind all States which are not Parties to an international armed conflict in the sense of common Article 2.[20]
962  The binding nature of Article 5 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.[21]
963  These considerations are immaterial when it comes to determining the scope of application of Article 5, a provision dealing solely with obligations of a humanitarian nature. Thus, the scope of application of Article 5 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 5 binds all States which are not Parties to that international armed conflict.
964  Two further considerations are equally immaterial for the applicability of Article 5: first, whether diplomatic relations exist between the neutral Power and the Party to the armed conflict; and second, whether the persons covered by Article 5 are entitled to be treated as prisoners of war.[22] The opposite view would run counter to the purpose of Article 5, a provision inspired exclusively by humanitarian considerations, which is to ensure that persons protected by the Second Convention receive the protection of the Convention wherever they may be.
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2. Conditions for the applicability of Article 5
965  Article 5 requires a neutral Power to apply, by analogy, the relevant provisions of the Second Convention when (a) persons protected under the Second Convention are (b) received, interned or found in its territory.
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a. Persons covered
966  Four categories of persons protected under the Second Convention are potential beneficiaries of the obligation laid down in Article 5:
(i) Wounded, sick and shipwrecked. The term ‘wounded, sick and shipwrecked’ 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, sick or shipwrecked.[23] From the moment these persons cease to qualify as ‘wounded’, ‘sick’ or ‘shipwrecked’, they are no longer protected by the Second 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.[24]
The Third Convention provides for the possibility that seriously wounded and seriously sick prisoners of war be accommodated in a neutral country.[25] While Article 5 of the Second 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.[26]
(ii) Members of the medical personnel of the armed forces of the Parties to the conflict. This category includes persons covered by Article 36 (medical and hospital personnel of hospital ships and their crews) or Article 37 (medical and hospital personnel assigned to the medical care of the persons designated in Articles 12 and 13).
(iii) Religious personnel of the armed forces of the Parties to the conflict. This category refers to the religious personnel covered by Articles 36 and 37.
(iv) Dead persons. This category, in line with the scope of application of the Second Convention, and in particular its Articles 19 and 20, is limited to deceased persons belonging to one of the categories listed in Article 13.
967  If persons do not fall into one of the above categories, including when they are wounded, sick, shipwrecked or dead, the neutral Power has no obligations towards them on the basis of Article 5. Accordingly, except with regard to persons specifically covered by Article 13 of the Second 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 5, towards missing persons who may be in its territory.[27] 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.[28]
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b. Received, interned or found in the territory of a neutral Power
968  The obligation contained in Article 5 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 5 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’.[29] 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 5.[30]
969  For Article 5 to apply, the mere presence of persons covered by this provision in the territory of a neutral Power arguably suffices.[31] 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 on the basis of Article 17, or with regard to the passage of wounded and sick persons through its territory[32] or through its airspace in a medical aircraft.[33] 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.[34] In practical terms, of course, the obligation to apply by analogy the provisions of the Second Convention can only be considered to have been activated once the neutral Power’s authorities have been made aware of such presence.
970  The notion of ‘territory’ of a neutral Power is not defined in the Second Convention or in any other treaty-based instrument of international humanitarian law. Nor is it defined in the law of neutrality. The meaning of a State’s ‘territory’ in the context of the sea can be understood from Article 2 of the 1982 UN Convention on the Law of the Sea: ‘The sovereignty of a coastal state extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.’[35] Even though that Convention was adopted more than 30 years after the Geneva Conventions, this provision can be considered relevant to an understanding of Article 5. Thus, for the purpose of interpreting the concept of ‘territory’ in Article 5, the terms can be understood as referring to waters subject to a neutral Power’s sovereignty, i.e. its internal waters, archipelagic waters (where applicable) and territorial sea, as well as to the airspace above them.[36] Conversely, no maritime zone on the seaward side of the outer limit of a State’s territorial sea is covered by the notion of a State’s ‘territory’.
971  While contemporary international law does not consider vessels of any category (warships, auxiliary vessels, merchant vessels, etc.) or aircraft, also of any category (military, State, civilian, etc.), as part of the territory of the State whose flag they are entitled to fly, they have that State’s nationality. In any event, on the high seas vessels are subject to the exclusive jurisdiction of that flag State.[37] Thus, when persons covered by Article 5 are on board a neutral vessel or aircraft ‒ for example, after having been rescued by it ‒ they are subject to the jurisdiction of the neutral Power whose nationality that vessel or aircraft has. Since such persons are not in the neutral Power’s territory, a strict reading of Article 5 might lead to the conclusion that the article does not apply to these persons in these circumstances. Such a conclusion would, however, defeat the purpose of the Second Convention in general and of Article 5 in particular, which is to ensure that the persons covered by this Convention receive the benefit of the protections to which they are entitled, no matter where they are.[38] Therefore, when the persons covered by Article 5 have been taken on board a neutral vessel or aircraft, the neutral Power will itself be responsible for compliance with Article 5.[39] When they have been taken on board a private vessel, the neutral Power is responsible for ensuring that the vessel complies with the article.[40] When it comes to the treatment of the wounded and sick, the ability of a neutral vessel or aircraft to provide medical care will obviously depend on whether it has the necessary medical staff and equipment on board.
972  Article 5 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.[41]
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3. Substantive obligation: ‘shall apply by analogy the provisions of the present Convention’
a. General considerations
973  During the 1949 Diplomatic Conference, one delegation suggested that affirming the substantive requirement which is at the heart of Article 5 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’.[42] Despite these arguments, it was considered beneficial to state explicitly that, each time the conditions of applicability of Article 5 are fulfilled, a neutral Power must comply with the provisions of the Second Convention.
974  Contrary to Article 4(B)(2) of the Third Convention, Article 5 of the Second Convention does not explicitly state that the obligation for neutral Powers to apply the relevant provisions of the Second 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.
975  When persons covered by Article 5 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 Second 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).[43]
976  The application of the provisions of the Second Convention by analogy means that the neutral Power will need to undertake certain activities with regard to the persons referred to in Article 5. 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.[44] Therefore, compliance with Article 5 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 5 in the Second Convention, in other words, serves ‘to protect [neutral Powers] from criticism by belligerent Powers regarding favourable treatment accorded by a neutral Power to the sick and wounded of an enemy belligerent’.[45]
977  The obligation on a neutral Power to apply the relevant provisions of the Second 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.[46]
978  The Second Convention does not contain a list of specific articles which have to be implemented by analogy by neutral Powers.[47] In each instance, based on the specific circumstances, application will depend on the object of the relevant rules.
979  Article 5 does not address the rights and obligations of the neutral Power with regard to objects protected under the Second Convention, such as hospital ships and coastal rescue craft. In light of the object of the Second 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.[48] With regard to medical aircraft, Article 40 applies.
980  Article 5 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 17(2) and 40(3) of the Second Convention, which stipulate that the relevant costs ‘shall be borne by the Power on which [the wounded, sick or shipwrecked] depend’, i.e. the State that they served before coming under the jurisdiction of the neutral Power.[49] .[50] 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, sick and shipwrecked
981  With regard to the wounded, sick and shipwrecked, the key point is that the neutral Power has to apply the provisions of the Second 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, sick and shipwrecked persons are in its territory, the neutral Power must record ‘any particulars which may assist in [their] identification’ as required under Article 19. Furthermore, if the possibility of the persons’ presence on its territory is known, the neutral Power must also, in application of Article 18 by analogy, ‘take all possible measures to search for and collect’ them. Other sources of international law may require a neutral Power to search for the wounded, sick and shipwrecked beyond its territory.[51]
982  Article 5 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 Articles 15, 17(1) and 40(3) of the Second 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 Article 5.[52] 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 address this issue explicitly within the context of the Conventions.[53] 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.[54]
983  In Article 11 of the 1907 Hague Convention (V) (applicable to land warfare), 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.’[55] 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).[56] It can only be observed that, since 1907, States themselves have not publicly re-examined whether these rules still reflect the law. With regard to the wounded, sick and shipwrecked in neutral territory in the context of naval warfare, no similar rule can be found in the 1907 Hague Convention (XIII). However, several of that Convention’s provisions deal with the topic of warships in neutral ports, in the sense of restricting their entitlement to stay or to engage in certain activities in such ports.[57]
984  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.[58] This reflects the application of Article 16 of the Second 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.[59]
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c. Application by analogy with regard to medical and religious personnel
985  Persons covered by Article 36 (religious, medical and hospital personnel of hospital ships and their crews) who are in the territory of a neutral Power must be allowed unconditionally to return to the Party to the conflict to which they belong. This is a corollary of the fact that, on the basis of Article 36, ‘they may not be captured during the time they are in the service of the hospital ship’. These persons must be treated by the neutral Power, pending their return, at least in the same way as prisoners of war.[60]
986  In principle, the same conclusion will be reached with regard to persons covered by Article 37 (religious, medical and hospital personnel of other ships) who are in the territory of a neutral Power. However, they may be retained by that Power in line with the conditions of Article 37(2) of the Second Convention. In this situation, Article 37(2) requires that ‘everything possible shall be done for their earliest possible landing’. Once on land, the First Convention applies.[61] It has been observed that, in practice, the retention regime is ‘not really adapted to a neutral state’.[62] On the basis of this observation, the argument has been made within the context of Articles 24 and 26 of the First Convention that, unless the Party to the conflict on which they depend has given its consent to their retention, persons covered by these provisions must be freed by the neutral Power.[63] The same logic can be said to apply with regard to persons covered by Article 37.
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d. Application by analogy with regard to the dead
987  When persons belonging to one of the categories in Article 13 are found dead in the territory of a neutral Power, Articles 19 and 20 apply by analogy. Thus, for example, when dead persons of one of the Parties to the conflict fall into its hands, the neutral Power must record ‘any particulars which may assist in [their] identification’ as required by Article 19. On the basis of the application by analogy of Article 18(1), the neutral Power must also ‘search for the dead’.[64]
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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.), 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.
Farrant, James, ‘Modern Maritime Neutrality Law’, International Law Studies, U.S. Naval War College, Vol. 90, 2014, pp. 198–307.
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 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.
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.
Roach, J. Ashley, ‘Neutrality in naval warfare’, version of February 2015, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
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. 85–108.
Schindler, Dietrich, ‘Aspects contemporains de la neutralité’, 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.
Seršić, Maja, ‘Neutrality in International Armed Conflicts at Sea’, in International Law: New Actors, New Concepts – Continuing Dilemmas, Liber Amicorum Božidar Bakotić, Martinus Nijhoff Publishers, Leiden, 2010, pp. 583–593.

1 - These rules include treaties dealing with the search and rescue of persons in distress at sea. For a discussion of these treaties’ applicability in time of armed conflict, see Introduction, section C.5.e–f.
2 - See Draft Articles on the Effects of Armed Conflicts on Treaties (2011), p. 21, which includes in its indicative list of treaties covered by Article 7 of the Draft Articles (Continued operation of treaties resulting from their subject matter), ‘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.’
3 - For the definition of ‘neutral Powers’, see section C.1. 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.
4 - For the Second Convention, see: Article 5 (‘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 17 (‘the neutral’ and ‘the neutral Power’), Article 25 (‘neutral countries’), Article 40 (‘neutral Powers’) and Article 43(2) (‘neutral State’).
5 - 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.
6 - 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, 2016, para. 15.3.2.4.
7 - For detailed references on this point, see paras 982–983.
8 - Additional Protocol I, Article 19.
9 - 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.
10 - Treaty-based rules of the law of neutrality as applicable to naval warfare can also be found in the 1928 Havana Convention on Maritime Neutrality, as well as in the 1998 Helsinki Principles on the Law of Maritime Neutrality. Neither of these documents contains a rule similar to Article 5 of the Second Convention. The law of neutrality as applicable to naval warfare is also reflected in portions of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 168, which contains a principle similar to the present article.
11 - For an overview of these documents and treaties, see the Introduction, section E.2.
12 - Draft Conventions submitted to the 1948 Stockholm Conference, draft article 4, p. 35.
13 - Draft Conventions adopted by the 1948 Stockholm Conference, draft article 4, p. 32: ‘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.’
14 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 46 and 119.
15 - Ibid. Vol. II-B, pp. 157 and 165.
16 - Ibid. Vol. II-B, p. 222 (text drafted for the Maritime Convention by Committee I and revised by the Drafting Committee after consideration of the recommendations of the Coordination Committee).
17 - See also Article 4 of the First 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.’
18 - For an overview of the provisions of the Second Convention in which this term, along with its substantively identical counterparts, is used, see fn. 4.
19 - 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), para. 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 (1998), Article 1.1. Similarly, see Australia, Manual of the Law of Armed Conflict, 2006, para. 11.3; Canada, LOAC Manual, 2001, pp. 1302–1303; Spain, Law of the Sea Manual, 2016, p. 145; 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. 17. 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.
20 - 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.
21 - 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, and Gabriella Venturini, ‘Jus in bello nel conflitto anglo-argentino’, in Natalino Ronzitti (ed.), La questione delle Falkland-Malvinas nel diritto internazionale, A. Giuffrè, Milan, 1984, pp. 187–265, at 235–238.
22 - On the latter, see Article 4(B)(2) of the Third Convention.
23 - For the definition of ‘wounded, sick and shipwrecked’ in the Second Convention, see the commentary on Article 12, section D.3.
24 - On the question of whether the neutral Power must intern them, see paras 982–983.
25 - See Third Convention, Articles 109–117.
26 - 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 Second and Third Conventions may – at least temporarily – be applicable simultaneously to persons who are wounded, sick and shipwrecked upon falling into enemy hands (see the commentary on Article 16, para. 1568), 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.
27 - 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.
28 - Similarly, see ibid. p. 102. For more details, see also para. 981.
29 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 190. See also p. 46.
30 - For a discussion of these substantive rules, see section C.3.
31 - See, in this context, United States, Law of War Manual, 2016, 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’.
32 - See Hague Convention (V) (1907), Article 14.
33 - See First Convention, Article 37.
34 - Similarly, see Sandoz, p. 95.
35 - Similarly, see San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 14, the first sentence of which states that ‘[n]eutral waters consist of the internal waters, territorial sea and, where applicable, the archipelagic waters, of neutral States’. See also United States, Law of War Manual, 2016, para. 13.2.2.2, fn. 30: The breadth of a State’s territorial sea may be established ‘up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with’ Article 3 of the 1982 UN Convention on the Law of the Sea.
36 - For a definition of ‘neutral territory’, see Tallinn Manual 2.0 on the International Law Applicable to Cyber Operation, 2nd edition, Cambridge University Press, 2017, p. 553: ‘“neutral territory” comprises the land territory of neutral States, as well as, waters subject to their territorial sovereignty (internal waters, territorial sea, and, where applicable, archipelagic waters) and the airspace above those areas.’
37 - See UN Convention on the Law of the Sea (1982), Article 92(1). As to the potential applicability of the same principle in the ‘exclusive economic zone’, see ibid. Article 58(2). In the territorial sea, questions of concurrent jurisdiction may arise in specific circumstances; see ibid. Article 27. Lastly, see also ibid. Article 91: ‘Ships have the nationality of the State whose flag they are entitled to fly.’; and Chicago Convention on International Civil Aviation (1944), Article 17: ‘Aircraft have the nationality of the State in which they are registered.’; Rainer Lagoni, ‘Merchant Ships’, version of January 2011, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, para. 42, http://www.mpepil.com; Wolff Heintschel von Heinegg, ‘Warships’, version of April 2009, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, para. 17, http://www.mpepil.com.
38 - See also San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), para. 161: ‘Persons on board vessels and aircraft having fallen into the power of a belligerent or neutral shall be respected and protected. While at sea and thereafter until determination of their status, they shall be subject to the jurisdiction of the State exercising power over them.’
39 - The obligation on the neutral Power to comply with Article 5 in these circumstances applies irrespective of whether international law requires it to ensure that the wounded, sick or shipwrecked taken on board take no further part in operations of war; see Article 15.
40 - See the commentary on Article 21, para. 1903.
41 - See Third Convention, Articles 109–117. For the status of the persons in such scenarios, see also Third Convention, Article 4(B)(2).
42 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 119.
43 - See e.g. United States, Law of War Manual, 2016, 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’).
44 - See also Hague Convention (XIII) (1907), Article 26.
45 - 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.
46 - See Article 50(2).
47 - During the 1949 Diplomatic Conference, a proposal was made to have a ‘complete list’ of the provisions of the Second 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 5 of the Second Convention follows, in this respect, the same approach as Article 4 of the First 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.
48 - Articles 22, 24 and 25 (hospital ships) and Article 27 (coastal rescue craft).
49 - See also United States, Law of War Manual, 2016, para. 9.1.2.1
50 - 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.
51 - See Introduction, section C.5.e–f.
52 - While these provisions do not address the substantive rules either, they refer to the fact that there are circumstances in which a neutral Power may be required to ensure that the wounded, sick and shipwrecked of the Parties to the conflict are precluded from taking part in ‘operations of war’. Similarly, see also Article 37(3) of the First Convention.
53 - 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. See also the commentary on Article 15, para. 1551 and the commentary on Article 17, paras 1605 and 1611.
54 - Ibid. Vol. II-A, pp. 105–107.
55 - See also Hague Convention (X) (1907), Article 15, and Hague Rules of Air Warfare (1923), Article 43.
56 - 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.
57 - See Hague Convention (XIII) (1907), Articles 12–20 and 24. See also Article 29 of the Second Convention.
58 - 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’.
59 - For further details, see also paras 967 and 977.
60 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 188.
61 - See United States, Law of War Manual, 2016, para. 15.16.6.
62 - Sandoz, pp. 97–98.
63 - Ibid. p. 98.
64 - For a discussion of the obligations of neutral Powers with regard to missing persons, see fn. 27.