Professor Wolff Heintschel von Heinegg

Transcription

1 Professor Wolff Heintschel von Heinegg Law of Naval Warfare and Neutrality at Sea 2009 Prof. Wolff Heintschel von Heinegg 1

2 Law of Naval Warfare and Neutrality at Sea 2

3 Overview 1. Law of Naval Warfare (Applicability) 2. Law of (Maritime) Neutrality 3. Sources 4. Area of Naval Warfare 5. Basic Principles 6. Military Objectives and Protected Objects in Naval Warfare 7. Methods and Means of Naval Warfare 8. Visit, Search, Diversion, and Capture 3

4 Law of Naval Warfare - Applicability - Common Art. 2 GC 1949 Internationalized Armed Conflicts (Art. 1, para.. 4 AP I)? Military Enforcement Measures Authorized by the UN Security Council MOOTW? GWOT? 4

5 Law of (Maritime) Neutrality Scope of Applicability Disputed Still, essentials continue to serve a highly important purpose: Protect non-participating States, their navigation and aviation, and their nationals Protect belligerent interests Prevent escalation In any event, wrt maritime neutrality general consensus on: Protection of neutral waters Protection of neutral commerce Prohibition of contraband and other interference by neutrals Neutrality under the UN Charter 5

6 Sources Treaties (e.g., 1856 Paris Declaration, 1907 Hague Conventions, 1936 Submarine Protocol) Customary International Law Domestic Law/Instructions Secondary Sources Oxford Manual San Remo Manual ILA Helsinki Principles 6

7 Area of Naval Warfare Internal (and Archipelagic) Waters and Territorial Sea Areas of the Belligerents Problem #1: International Straits Problem # 2: Archipelagic Sea Lanes Subject to the due regard principle: Contiguous Zones, EEZ, and CS Areas of Neutral States High Seas 7

8 Neutral Waters Neutral Waters defined General Protection of Neutral Waters Basic Obligations of Neutral States Use of Neutral Ports and Roadsteads by Belligerents Innocent Passage through Neutral TS Transit and Archipelagic Sea Lanes Passage 8

9 Law of Naval Warfare - Basic Principles - Entitlement to employ methods and means of naval warfare (including prize measures) No Unlimited Right No Direct Attack against Civilian Population or Civilians and Civilian Objects No Attack against persons and objects hors de combat Principle of Distinction Precautions in Attack Humanity Protection of the Environment Prohibition of Perfidy 9

10 Entitlement Warships Military Aircraft NOT: Auxiliary Vessels Merchant Vessels State Aircraft other than military aircraft (e.g., customs and police aircraft) Civil Aircraft 10

11 Definition: Warship A ship belonging to the armed forces of a State bearing the external marks distinguishing the character and nationality of such a ship under the command of an officer duly commissioned by the government of that State and whose name appears in the appropriate service list or its equivalent and manned by a crew which is under regular armed forces discipline 11

12 Definition applies to surface and subsurface ships Warship (contd.) Does definition cover unmanned vehicles? 12

13 Warship (contd.) Background: Abolition of Privateering by the 1856 Paris Declaration Respecting Maritime Law Reaffirmed by the 1907 Hague Convention (VII) Relating to the Conversion of Merchant Ships into War-ships 13

14 Warship (contd.) Problem: Civilian Mariners on board Warships Note: Hague Convention VII, Art. 4, refers to the crew that must be subject to military discipline; the customary definition of warship merely refers to a crew NO violation of the law of naval warfare (and of LOAC) if civilian mariners contribute to operation of a warship However, if captured, no combatant immunity 14

15 Definition: Military Aircraft An aircraft operated by commissioned units of the armed forces of a State Having the military marks of that State Commanded by a member of the armed forces and Manned by a crew subject to regular armed forces discipline 15

16 Military Aircraft (contd.) Definition covers all military aircraft Does definition cover UAVs? 16

17 Definition: Auxiliaries Vessel, other than a warship Owned by or under the exclusive control of the armed forces of a State and Used for the time being on government non- commercial service No separate category of auxiliary aircraft 17

18 Principle of Distinction Parties to the conflict shall at all times distinguish between civilians or other protected persons and combatants and between civilian or exempt objects and military objectives 18

19 (Specially) Protected Enemy Vessels and Aircraft If engaged in their normal/innocent role, If not committing acts harmful to the enemy, If complying with legitimate belligerent orders If not intentionally hampering movement of belligerent forces Hospital Ships and Medical Aircraft Coastal Rescue Craft and Medical Transports Vessels engaged in the transport of specially protected cultural property Coastal Fishing Vessels and Vessels engaged in Local Trade Humanitarian Relief Vessels/Aircraft Cartel Vessels/Aircraft 19

20 Basic Principles No unlimited right.. = methods and means of naval warfare subject to LOAC LOAC general/basic principles also apply to naval warfare E.g., Principle of Distinction E.g., Precautions in Attack E.g., prohibition of unnecessary suffering E.g., prohibition of attacking persons hors de combat (shipwrecked, wounded, surrendered) E.g., humanity (duty to rescue survivors) E.g., prohibition of perfidy Note: : Special exceptions for legitimate ruses in naval warfare, e.g., feigning neutral or enemy status 20

21 Hospital Ships: Current Issues Is the transmission and reception of encrypted data by medical military ships legal under international law and the law of armed conflict? Can hospital ships be armed for purposes of force protection, and if so, what are the limitations on the types and numbers weapons allowed? 21

22 Use of encrypted communication devices: Geneva Convention II Hospital ships may not possess or use a secret code for their wireless or other means of communication. En particulier,, les navires-hôpitaux ne pourront posséder ni utiliser de code secret pour leurs émissions par T.S.F. ou par tout autre moyen de communication. Permissible to have apparatus exclusively intended to facilitate navigation or communication Use of neutral observers to verify compliance Advances in technology since 1949 use of encryption for routine activities, not just warfighting 22

23 Use of encrypted communication devices: San Remo Manual Hospital ships must be innocently employed in their normal role Cryptographic equipment should be permitted Advocates a change in current law, BUT Equipment shall NOT be used to transmit intelligence data nor in any other way to acquire any military advantage Use of a qualified neutral observer 23

24 Arming Hospital Ships: GCII Ships may not be used to commit, outside their humanitarian duties, acts harmful to the enemy Crews may be armed for the maintenance of order, for their own defense or that of the sick and wounded BUT: what about the right of self-defense against illegal attacks, especially by non-state actors? 24

25 Arming Hospital Ships: San Remo Manual Hospital ships may be equipped with purely deflective means of defence,, such as chaff and flares. Self-defense is permitted as long as it cannot be interpreted as potentially aggressive Sufficient to protect against terrorist attacks? 25

26 Hospital Ships: Current Practices Only the US has hospital ships (UK has turned to fighting hospital ships ) Direct changes in international law through introduction and practice rather than amendments to international conventions USN installed both encrypted communication devices and 50 caliber machine guns on the USS Comfort before deploying it in support of Operation Iraqi Freedom 26

27 Hospital Ships: Crypto and Arming Cryptographic equipment essential for effective performance of humanitarian function Modern Communication technology is necessarily based on encryption GC II does not prohibit legitimate self-defense Accordingly, all measures necessary to meet a given threat, including the arming of hospital ships, are in accordance with the specially protected status 27

28 Military Objectives Military Objectives defined Enemy Warships, Auxiliaries, and Military Aircraft (incl. Unmanned Vehicles) Enemy Merchant Vessels Enemy Civil Aircraft Neutral Merchant Vessels Neutral Civil Aircraft 28

29 Definition: Military Objectives Objects which by their nature, location, purpose or use make an effective contribution to military action and Whose total or partial destruction, capture or neutralisation,, in the circumstances ruling at the time, offers a definite military advantage 29

30 Enemy warships and military aircraft are always legitimate military objectives wherever and whenever encountered within the area of naval warfare 30

31 Enemy Auxiliary Vessels Make, by their purpose or use, an effective contribution to military action Therefore, their neutralisation will regularly offer a definite military advantage 31

32 Merchant Vessels as Legitimate Military Objectives Merchant Vessel defined 1936 London Protocol Exceptions under the London Protocol Nuremberg Judgment Merchant Vessels contributing to the enemy s s war fighting effort 32

33 Definition: Merchant Vessel Vessel, other than a warship, an auxiliary vessel, or a State vessel such as customs or police vessel, that is engaged in commercial or private service 33

34 1936 London Protocol... A warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ship s papers in a place of safety... 34

35 Exceptions under the 1936 Protocol except in the case of persistent refusal to stop on being duly summoned, or of active resistance to visit or search 35

36 Clarification of the definition of merchant vessel by the commission of legal experts of the 1930 London Conference The Committee wish to place it on record that the expression merchant vessel, where it is employed in the declaration, is not to be understood as including a merchant vessel which is at the moment participating in hostilities in such a manner as to cause her to lose her right to the immunities of a merchant vessel. 36

37 Nuremberg Judgment In the actual circumstances of this case, the Tribunal is not prepared to hold Doenitz guilty for his conduct of submarine warfare against British armed merchant ships. 37

38 Enemy Merchant Vessels as Legitimate Military Objectives, if Engaging in belligerent acts on behalf of the enemy Acting as an auxiliary to an enemy s s armed forces Being incorporated into or assisting the enemy s intelligence gathering system Sailing under convoy of enemy warships or military aircraft (= presumption of resistance to visit and search) Being armed to an extent that they could inflict damage to a warship Otherwise making an effective contribution to military action (and to the enemy s s war-sustaining effort) 38

39 Enemy Civil Aircraft May be attacked if performing functions rendering them legitimate military objectives However, civil airliners are specially protected Civil airliners are civil aircraft that are clearly marked and engaged in carrying civilian passengers in scheduled or non-scheduled services along Air Traffic Service routes Civil airliners are exempt from attack only if they Innocently employed in their normal role and Do not intentionally hamper the movements of combatants 39

40 Neutral Merchant Vessels Merchant Vessels are considered neutral if flying the flag of a neutral State (prima facie evidence only!) Enemy character can be determined by registration, ownership, charter or other criteria Neutral merchant vessels are subject to visit and search (and capture) In principle, they may not be attacked, unless 40

41 Neutral merchant Vessels as Legitimate Military Objectives if Breaching or attempting to breach a blockade Resisting visit, search, and capture Engaging in belligerent acts on behalf of the enemy Acting as enemy auxiliaries Incorporated into or assisting the enemy s s intelligence system Sailing under enemy convoy Otherwise making an effective contribution to the enemy s s war-fighting (and war-sustaining) effort 41

42 Methods and Means of Naval Warfare Surface Warships, Military Aircraft, and Submarines (including unmanned vehicles) Missiles and Guns Naval Mines Torpedoes Blockade Zones 42

43 Submarines 1936 London Protocol: In their action with regard to merchant ships, submarines must conform to the rule of International Law to which surface ships are subject. Customary Law (San Remo Manual): Surface ships submarines and aircraft are bound by the same principles and rules. 43

44 Naval Bombardment 1907 Hague Convention IX: May not attack undefended towns, villages, dwellings, or buildings In sieges and attacks, spare buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals... Provided they are not being used for military purposes 44

45 Naval Bombardment Hague IX and Additional Protocol I Distinguish between civilians or other protected persons and combatants and civilian or exempt objects and military objectives Forbidden to: cause superfluous injury/unnecessary suffering launch indiscriminate attacks (order no survivors) 45

46 Naval Bombardment Protocol I, Art 51(5)(a): an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village, or other area is prohibited. Not a complete ban Is clarity a matter of Objective determination, or Subjective appreciation (poor weather/visibility)? 46

47 Missiles and Guns San Remo Manual: Missiles and projectiles, including those with over-the-horizon capabilities, shall be used in conformity with the principles of target discrimination 47

48 Torpedoes San Remo Manual: It is prohibited to use torpedoes which do not sink or otherwise become harmless when they have completed their run. 48

49 Mine Warfare at Sea 1907 Hague Convention VIII restricted to automatic submarine contact mines However, Hague VIII contains general principles that apply to modern naval mines as well Accordingly, mine warfare at sea is governed by the rules laid down in the San Remo Manual, paras

50 Blockade Belligerent operation to prevent vessels and/or aircraft of all States from entering or exiting specified ports/airfields of the enemy Blockade: Must be established by declaration & notification Applied with impartiality Effective (i.e. enforced question of fact) Must not block access to neutral ports Must allow food or supplies for survival of civilian population to pass through 50

51 Zones War Zones, Military Areas, Barred Areas, Operational Zones Examples WWI/WWII Exclusion/War Zones UK/Argentine Exclusion Zones (1982) Iran/Iraq War Zones (1980s) 51

52 Zones to be Distinguished from BlockadeBlockade Control Control of the Immediate Area of Naval Operations Warning Warning Zones 52

53 Zones: San Remo Manual 105. A belligerent cannot be absolved of its duties under international humanitarian law by establishing zones which might adversely affect the legitimate uses of defined areas of the sea. 53

54 Zones: ILA Helsinki Principles 3.3 Special Zones Subject to Principle and without prejudice to the rights of commanders in the zone of immediate naval operations, the establishment by a belligerent of special zones does not confer upon that belligerent rights in relation to neutral shipping which it would not otherwise possess. In particular, the establishment of a special zone cannot confer upon a belligerent the right to attack neutral shipping merely on account of its presence in the zone. 54

55 Zones: NWP 1-14, para. 7.9 [ ] To the extent that such zones serve to warn neutral vessels and aircraft away from belligerent activities and thereby reduce their exposure to collateral damage and incidental injury (see paragraph ), and to the extent that they do not unreasonably interfere with legitimate neutral commerce, they are undoubtedly lawful. However, the establishment of such a zone does not relieve the proclaiming belligerent of the obligation under the law of armed conflict to refrain from attacking vessels and aircraft which do not constitute lawful targets. In short, an otherwise protected platform does not lose that protection by crossing an imaginary line drawn in the ocean by a belligerent. 55

56 Zones: Definition & Legal Limits Definition: A method of naval warfare applied in a clearly specified sea area in which a belligerent pursues one of, or a combination of, the following aims: Containing the geographic area of naval warfare Protecting neutral/innocent shipping (and aviation) against the harmful effects of naval operations or Subjecting neutral shipping (and aviation) to extensive control measures 56

57 Zones: Legal Limits Prior notification specifying the location, duration and extent of the zone and of the measures to be imposed within the zone No free-fire fire zone /No derogation from the law of naval warfare, i.e. the same body of law applies both inside and outside the zone Extent, location and duration of the zone and the measures imposed shall not exceed what is strictly required by military necessity and the principle of proportionality Due regard must be given to the rights of neutral states to legitimate uses of the seas 57

58 Visit, Search, Diversion, and Capture (Prize Law) Vessels and Aircraft exempt from prize measures Vessels and Aircraft subject to visit and search Diversion for the purpose of visit and search Diversion for other purposes? Vessels and Aircraft subject to capture Destruction of Prizes according to 1936 London Protocol Role of Prize Courts 58

59 QUESTIONS? 59