Austria and the Fight Against the “Islamic State”: Whither Neutrality?

The most recent escalation of the conflict in Syria and the Paris attacks have once again led to intense debates over the still unresolved question of self-defence against non-state actors, the role of UN Security Council resolution 2249 in this regard, and the EU’s mutual defence clause enshrined in Article 42(7) of the Treaty on European Union. While these issues are of particular importance for those states that recently joined the military efforts against the “Islamic State’s” safe haven in Syria , i.e. the UK or Germany, they also affect one of the most delicate topics in Austria: its permanent neutrality.

In September 2015 foreign minister Sebastian Kurz declared that Austria had joined the alliance against the “Islamic State”, albeit without any military consequences. After France invoked the EU’s mutual defence clause, however, Austrian Defence minister Gerald Klug – emphasizing that he was voicing his personal opinion – openly stated that “there cannot be neutrality against terrorism.” From this point of view, measures typically deemed as being incompatible with neutrality, particularly flight permits for military aircraft on their way to Syria, do not pose a problem. Upon closer inspection, however, things are less clear.

Austria’s status as a permanently neutral state is a product of the negotiations with its four occupying powers – the US, the UK, France, and the Soviet Union – following the Second World War. According to Article I of the “Federal Constitutional Law on the Neutrality of Austria”, Austria “is resolved to maintain and defend its [permanent] neutrality with all the means at her disposal” and “will never in the future accede to any military alliances nor permit the establishment of military bases of foreign States on her territory.” Back in 1955, Austria notified all 63 states it entertained diplomatic relations with at that time of this law and asked for recognition of its status as a permanently neutral state. Hence, it is not only bound internally but also under international law to this very day (although it could, in the opinion of the Austrian Ministry for Foreign Affairs, unilaterally revoke this status regardless of whether other states take note or agree).

Since the last codification of this status goes back to the 1907 Hague Conference (i.e. Hague Conventions V and XIII), the exact content of neutrality in contemporary international law is far from clear. The only generally accepted requirement is that a permanently neutral state has to abstain from taking sides in any war between other states. A war in the legal sense needs to be distinguished from international armed conflicts, as it not only requires the resort to armed force by states but also an objectively determinable animus belligerendi (the will to fight a war).

Non-international armed conflicts are basically not covered under the traditional law of neutrality unless the armed groups are recognized as belligerents (in practice, this never happens, at least not explicitly). In addition, starting with UN Security Council resolution 678 (1990), Austria – similar to Switzerland – has maintained that collective measures authorized by the UN Security Council do not impinge upon its neutrality.

In general, Austria’s obligations under the EU’s mutual defence clause are, at best, very limited. After all, this provision is very vague and furthermore makes express reference to neutral states by the so-called “Irish clause”, according to which the obligation of aid and assistance “shall not prejudice the specific character of the security and defence policy of certain Member States.” On the basis of this provision some even argue that neutral states are “free riders”, as they benefit from the mutual defence clause without any legal obligations.

On the other hand, it can be argued that every EU Member State – including, albeit to a lesser degree, neutral states – has to provide a certain level of aid and assistance in the case of an armed attack. It would indeed certainly be difficult to justify the closure of Austrian airspace for EU Member States flying military aircraft to Syria in support of France’s right to self-defence.

Regardless of whether Austria is legally bound to support the fight against the Islamic State in Syria or not, other States, in particular Syria itself and Russia, could nevertheless argue that such steps are incompatible with Austria’s neutrality. Although the fight against the “Islamic State” does not constitute a “war” in the traditional understanding, since the “Islamic State” is not seen as a state (although hard-core proponents of the declaratory theory could argue it is), its safe havens are situated in Syria while the government of Bashar al-Assad has not formally consented to the military actions by states such as the UK, the US, or France. Although UN Security Council resolution 2249 does acknowledge that the use of force against the “Islamic State’s” strongholds in Syria is basically permissible under international law, it does not authorize the use of force on Syrian territory (see the excellent and timely blog entry by Dapo Akande and Marko Milanović on this subject-matter).

Be that as it may, eminent Austrian scholars such as Karl Zemanek underlined the diminishing obligations on neutral states after the end of the Cold War. Writing in 1992, he observed a trend to reduce neutrality as merely requiring non-participation in hostilities. The example of the “Islamic State” thus once again highlights the new challenges and threats and their impact on the traditional understanding of neutrality.

In the present case, however, no other State has so far requested Austria to activate its permanent neutrality. After all, Austria will not be directly involved in the fight against the “Islamic State” but increase its support for UN missions so as to alleviate the French burden there. In the long run, however (in particular in light of renewed calls to establish a “EU Army”), Austria and other neutral states cannot escape the necessity to clarify the role and meaning of neutrality in the 21^st century, or possibly even an open debate on its future status.