Neutrality

==Definition of neutrality==
Neutrality
Law of neutrality is a separate but complementary legal regime to international humanitarian law. It regulates relations between States which are parties to an international armed conflict (IAC) and States which are not parties to the conflict (neutral Powers). Several States have affirmed the application of the law of neutrality to cyber operations and shared their views on how it applies.Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations (2016) 60; Ministry of Defense of France, International Law Applied to Operations in Cyberspace (9 September 2019); Italian Position Paper on “International Law and Cyber Space”, Italian Ministry for Foreign Affairs and International Cooperation 10; Government of the Kingdom of the Netherlands, Appendix: International law in cyberspace, 26 September 2019 5; Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, August 2021 78 (Romania), 89 (Switzerland); DoD Law of War Manual, para 16.4.1. Transposing the rule of inviolability of the neutral Power’s territory to the cyber context, several States consider that parties to the conflict are prohibited from directing cyber operations against and from cyber infrastructure located in the territory, and under the exclusive control of, neutral Powers.Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, August 2021 89 (Switzerland); Ministry of Defense of France, International Law Applied to Operations in Cyberspace (9 September 2019); Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, August 2021 78 (Romania); Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations (2016) 60; See also Italian Position Paper on “International Law and Cyber Space”, Italian Ministry for Foreign Affairs and International Cooperation 10. However, one State has expressed doubts over whether rules relating to territorial inviolability under the law of neutrality are applicable to cyber operations.Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 97 ILS 395, 397-98 (2021) (‘in relation to one of the basic overarching rules of neutrality—the inviolability of a neutral State’s territory—while in the land domain it is forbidden to transfer troops or convoys of munitions; at sea—the passage of warships in territorial waters is possible; and in the air such passage is subject to discretion or limitations of each neutral State. Given these differences, it remains unclear if and how this rule would be applicable in cyberspace.’) 
With regard to harm that is not directed at a neutral State but which nonetheless may occur incidentally, France takes the view that ‘belligerents must refrain from causing harmful effects to digital infrastructure situated on the territory of a neutral State’.Ministry of Defense of France, International Law Applied to Operations in Cyberspace (9 September 2019). Switzerland and Romania take similar positions.Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, August 2021 79 (Switzerland), 89 (Romania) The ICJ has acknowledged that under the law of neutrality some States ‘rule out the use of a weapon the effects of which simply cannot be contained within the territories of the contending States’. ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 1996, para 93. For an alternative view, see verbal statement by the United States in ICJ, ‘Public sitting: Verbatim Record’, in the case in ICJ, Legality of the Use by a State of Nuclear Weapons (Advisory Opinion), Wednesday 15 November 1995, 41 (‘The argument that the use of a nuclear weapon is per se unlawful because it would inevitably violate the territory of neutral States is equally unsound, Mr. President. The principle that neutral territory is inviolable means that a belligerent may not, save in rare and clearly defined circumstances, actually conduct military operations on the territory of a neutral State. It has never meant that neutral States can expect to be subject to none of the effects of war’.) See also more generally, ‘Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War’, American Journal of International Law Vol. 33 (1939) 386-391 (commentary to Article 22 ‘A belligerent has no duty to pay compensation for damage to a neutral vessel or other neutral property or persons, when such damage is incidental to a belligerent’s act of war against the armed forces of its enemy and not in violation of the provisions of this Convention or of the law of war’.) The Tallinn Manual struggled with this issue, agreeing that foreseeable spill-over effects in neutral territory may breach the law of neutrality, but that ‘each case must be assessed on its own merits’ and that ‘States would be unlikely to regard de minimis effects as precluding the prosecution of an otherwise legitimate attack’.Tallinn Manual 2.0, commentary to rule 150, para 4. The experts also noted that the law of neutrality allows for a balancing of competing rights between ‘belligerents to effectively conduct military operations’ and ‘neutral States to remain generally unaffected by the conflict’. 
While neutral State territory is inviolableHague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Article 1. and therefore the exercise of belligerent rights by cyber means in neutral territory is prohibited, Article 8 of the Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, explains that a neutral State is not required to forbid or restrict a belligerent’s use of ‘telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals.’Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Article 8. In light of Article 8, different views exist with respect to the use of neutral cyber infrastructure by belligerents for cyber operations carried out in connection with an armed conflict. This mainly concerns situations where the data packets are routed through neutral cyber infrastructure, intentionally or otherwise. France takes the position that it does not violate the law of neutrality if the transmission has no effects on the neutral State.Ministry of Defense of France, International Law Applied to Operations in Cyberspace (9 September 2019). The United States generally considers the use of publicly available communications infrastructure by belligerents as lawful.DoD Law of War Manual, para 16.4.1. Denmark has taken the view that it is ‘assumed that infrastructure located in the territory of a neutral State may not be used by belligerent States to engage in acts of war’.Denmark, Military Manual on International Law Relevant to Danish Armed Forces in International Operations (2016) 60. 
Corollary to the protection granted to neutral Powers is their duty to prevent and terminate any violation of its neutrality, although its extent is unsettled in the cyber context.See Tallinn Manual 2.0, commentary to rule 150, paras 5–7. Failure to do so, particularly in the face of offensive cyber operations, could entitle the aggrieved party to use forceful measures against the neutral cyber infrastructure to end the adverse effects the operation causes.Tallinn Manual 2.0, rule 153. However, any such measures would need to conform to the overarching UN Charter regime and customary international law governing the use of force. 
Any potential legal obligation to prevent and terminate a violation of neutrality presents unique challenges in the cyber context given that neutral States do not always have knowledge of the use of their servers to transmit malware, and are not always able to prevent or terminate a cyber attack.Jeffrey T.G. Kelsey, ‘Hacking into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare’, Michigan Law Review, Vol. 106, May 2008, 1427-1452, 1444. Switzerland seems to share this concern, arguing that there should be limits to the rights and duties of a neutral Power in light of the nature of data traffic on the Internet.Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, August 2021 89. 
Publicly available national positions that address this issue include:
 (2024),
 (2023),
 (2024),
 (2019), 
 (2021),
 (2019), 
 (2021), 
 (2021).
==National positions==
===Austria (2024)===
===Costa Rica (2023)===
===Czech Republic (2024)===
===France (2019)===
===Italy (2021)===
===Netherlands (2019)===
===Romania (2021)===
===Switzerland (2021)===
==Appendixes==
===See also===
* International armed conflict
* Means and methods of cyber warfare
* Scenario 28: Extraterritorial incidental civilian cyber harm
===Notes and references===
===Bibliography and further reading===
Category:Neutrality
Category:Legal concepts