Professor Wolff Heintschel von Heinegg

(1)

Professor

Wolff Heintschel von Heinegg

„Law of Naval Warfare and Neutrality at Sea”

(2)

Law of Naval

Warfare and

Neutrality at

Sea

(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

(4)

Law of Naval Warfare

Applicability

-

_{Common Art. 2 GC 1949}

“

_“

Internationalized

”

Armed Conflicts (Art. 1,

para

. 4 AP I)?

Military Enforcement Measures Authorized

_{Military Enforcement Measures Authorized}

by the UN Security Council

MOOTW?

_MOOTW?

(5)

Law of (Maritime) Neutrality

Scope of Applicability Disputed_{Scope of Applicability Disputed}

_{Still, essentials continue to serve a highly important}_{Still, essentials continue to serve a highly important} purpose:

purpose:

–

– Protect nonProtect non--participating States, their navigation and aviation, participating States, their navigation and aviation, and their nationals

and their nationals

–

– Protect belligerent interestsProtect belligerent interests –

– Prevent escalationPrevent escalation

_{In any event,}_{In any event,}_wrt_wrt _{maritime neutrality general consensus}_{maritime neutrality general consensus} on:

on:

–

– Protection of Protection of ““neutral watersneutral waters”” –

(6)

Sources

_{Treaties (e.g., 1856 Paris Declaration, 1907}

Hague Conventions, 1936 Submarine

Protocol)

_{Customary International Law}

_{Domestic Law/Instructions}

Secondary Sources

_{Secondary Sources}

–

– Oxford ManualOxford Manual –

– San Remo ManualSan Remo Manual –

(7)

Area of Naval Warfare

_{Internal (and Archipelagic) Waters and Territorial}

Sea Areas of the Belligerents

–

– Problem #1: International StraitsProblem #1: International Straits –

– Problem # 2: Archipelagic Sea LanesProblem # 2: Archipelagic Sea Lanes

Subject to the due regard principle:

_{Subject to the due regard principle:}

–

Contiguous Zones, EEZ, and CS Areas of

Neutral States

–

(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

_{Innocent Passage through Neutral TS}

(9)

Law of Naval Warfare

Basic Principles

-

Entitlement to employ methods and means of naval _{Entitlement to employ methods and means of naval}

warfare (including prize measures)

_{No Unlimited Right}_{No Unlimited Right}_…_…

No Direct Attack against Civilian Population or Civilians _{No Direct Attack against Civilian Population or Civilians}

and Civilian Objects

No Attack against persons and objects _{No Attack against persons and objects}““hors de combathors de combat””

_{Principle of Distinction}_{Principle of Distinction}

Precautions in Attack_{Precautions in Attack}

(10)

Entitlement

_Warships

_{Military Aircraft}

_NOT

_:

–

– Auxiliary VesselsAuxiliary Vessels –

– Merchant VesselsMerchant Vessels –

– State Aircraft other than military aircraft (e.g., State Aircraft other than military aircraft (e.g., customs and police aircraft)

customs and police aircraft)

–

(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

(12)

Warship (contd.)

Definition applies to surface _{Definition applies to surface}

and subsurface ships

_{Does definition cover}_{Does definition cover} unmanned vehicles?

(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

(14)

Warship (contd.)

Problem: Civilian Mariners on board Warships_{Problem: Civilian Mariners on board Warships}

_{Note: Hague Convention VII, Art. 4, refers to}_{Note: Hague Convention VII, Art. 4, refers to}_“_“_the_the crew

crew”” that must be subject to military discipline; the that must be subject to military discipline; the customary definition of

customary definition of ““warshipwarship”” merely refers to merely refers to ““a a crew

crew””

_{NO violation of the law of naval warfare (and of}_{NO violation of the law of naval warfare (and of}

LOAC) if civilian mariners contribute to operation of a

warship

(15)

Definition: Military Aircraft

_{An aircraft operated by commissioned units of}

the armed forces of a State

Having the military marks of that State

_{Having the military marks of that State}

Commanded by a member of the armed forces

_{Commanded by a member of the armed forces}

and

_{Manned by a crew subject to regular armed}

forces discipline

(16)

Military Aircraft (contd.)

Definition covers all _{Definition covers all}

military aircraft

_{Does definition cover}_{Does definition cover} UAVs

(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

_{Used for the time being on government non}

-

-commercial service

commercial service

(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

(19)

(Specially) Protected Enemy

Vessels and Aircraft

If engaged in their normal/innocent role,_{If engaged in their normal/innocent role,}

_{If not committing acts harmful to the enemy,}_{If not committing acts harmful to the enemy,}

If complying with legitimate belligerent orders_{If complying with legitimate belligerent orders}

_{If not intentionally hampering movement of belligerent}_{If not intentionally hampering movement of belligerent} forces

forces

–

– Hospital Ships and Medical AircraftHospital Ships and Medical Aircraft –

– Coastal Rescue Craft and Medical TransportsCoastal Rescue Craft and Medical Transports –

– Vessels engaged in the transport of specially protected culturalVessels engaged in the transport of specially protected cultural property

property

–

(20)

Basic Principles

No unlimited right _{No unlimited right}……. = methods and means of naval . = methods and means of naval warfare subject to LOAC

warfare subject to LOAC

_{LOAC general/basic principles also apply to naval warfare}_{LOAC general/basic principles also apply to naval warfare}

E.g., Principle of Distinction_{E.g., Principle of Distinction}

_{E.g., Precautions in Attack}_{E.g., Precautions in Attack}

E.g., prohibition of unnecessary suffering_{E.g., prohibition of unnecessary suffering}

_{E.g., prohibition of attacking persons}_{E.g., prohibition of attacking persons}_“_“_{hors de combat}_{hors de combat}_”_” (shipwrecked, wounded, surrendered)

(shipwrecked, wounded, surrendered)

_{E.g., humanity (duty to rescue survivors)}_{E.g., humanity (duty to rescue survivors)}

E.g., prohibition of perfidy_{E.g., prohibition of perfidy}

–

(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

_{Can hospital ships}

be armed for

purposes of force

protection, and if

so, what are the

limitations on the

types and numbers

(22)

Use of encrypted communication devices: Geneva Convention II

“_“Hospital ships may not possess or use a secret code Hospital ships may not possess or use a secret code for their wireless or other means of communication.

for their wireless or other means of communication.””

_En_En_particulier_particulier_{, les}_{, les}_navires_navires_-_-_hôpitaux_hôpitaux _ne_ne_pourront_pourront poss

possééderder nini utiliserutiliser de code secret de code secret pour pour leursleurs é

émissionsmissions par T.S.F. par T.S.F. ouou par tout par tout autreautre moyenmoyen de de communication.

communication.

_{Permissible to have}_{Permissible to have}_“_“_{apparatus exclusively intended}_{apparatus exclusively intended} to facilitate navigation or communication

to facilitate navigation or communication””

Use of neutral observers to verify compliance_{Use of neutral observers to verify compliance}

_{Advances in technology since 1949}_{Advances in technology since 1949}ÆÆ_u_u_{se of}_{se of} encryption for routine activities, not just

(23)

Use of encrypted communication devices:

San Remo Manual

Hospital ships must be _{Hospital ships must be}““innocently employedinnocently employed”” in in their normal role

their normal role

Cryptographic equipment _{Cryptographic equipment}““should be permittedshould be permitted””

Advocates a change in current law, BUT_{Advocates a change in current law, BUT}

Equipment shall NOT be used _{Equipment shall NOT be used}““to transmit to transmit

intelligence data nor in any other way to acquire

any military advantage

(24)

Arming Hospital Ships: GCII

Ships may not be used _{Ships may not be used}““to commit, outside their to commit, outside their humanitarian duties, acts harmful to the enemy

humanitarian duties, acts harmful to the enemy””

Crews may be armed _{Crews may be armed}““for the maintenance of for the maintenance of

order, for their own defense or that of the sick and

wounded

wounded””

_{BUT: what about the right of self}_{BUT: what about the right of self}_-_-_{defense against}_{defense against} illegal attacks, especially by non

(25)

Arming Hospital Ships:

San Remo Manual

“_“Hospital ships may be equipped with purely Hospital ships may be equipped with purely deflective means of

deflective means of defencedefence, such as chaff and , such as chaff and flares.

flares.””

_Self_Self_-_-_{defense is permitted as long as it cannot be}_{defense is permitted as long as it cannot be} interpreted as potentially aggressive

interpreted as potentially aggressive

(26)

Hospital Ships: Current Practices

Only_Only the US has the US has hospital hospital ships (UK ships (UK has turned to

has turned to ““fighting hospital fighting hospital ships

ships””))

Direct changes in international law _{Direct changes in international law}

through introduction and practice

rather than amendments to

international conventions

USN installed both encrypted _{USN installed both encrypted}

communication devices and 50

caliber machine guns on the USS

caliber machine guns on the USS Comfort

Comfort before deployingbefore deploying it in it in support of Operation Iraqi

(27)

Hospital Ships: Crypto and Arming

Cryptographic equipment essential for effective _{Cryptographic equipment essential for effective}

performance of humanitarian function

Modern Communication technology is necessarily _{Modern Communication technology is necessarily}

based on encryption

GC II does not prohibit legitimate self_{GC II does not prohibit legitimate self}--defensedefense

_{Accordingly, all measures necessary to meet a given}_{Accordingly, all measures necessary to meet a given} threat, including the arming of hospital ships, are in

threat, including the arming of hospital ships, are in

accordance with the specially protected status

(28)

Military Objectives

_{Military Objectives defined}

_{Enemy Warships, Auxiliaries, and Military}

Aircraft (incl. Unmanned Vehicles)

Enemy Merchant Vessels

_{Enemy Merchant Vessels}

Enemy Civil Aircraft

_{Enemy Civil Aircraft}

Neutral Merchant Vessels

_{Neutral Merchant Vessels}

(29)

Definition: Military Objectives

_{Objects which by their}

– – nature, nature, – – location, location, – – purpose purpose or or – – use use

make an effective contribution to military action

and

(30)

Enemy warships and military aircraft are always legitimate military objectives wherever and whenever

(31)

Enemy Auxiliary Vessels

_{Make, by their purpose or use, an effective}

contribution to military action

Therefore, their

_{Therefore, their}

neutralisation

will regularly

offer a definite military advantage

(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 war}

fighting effort

(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

(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 . . .”

(35)

Exceptions under the 1936 Protocol

_{“… except in the case}

– of persistent refusal to stop on being duly

summoned, or

(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.”

(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

.”

(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}_{as an auxiliary to an enemy}_’_’_{s armed forces}_{s armed forces}

Being incorporated into or assisting the enemy_{Being incorporated into or assisting the enemy}’’s s intelligence gathering system

intelligence gathering system

Sailing under convoy of enemy warships or military _{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 _{Being armed to an extent that they could inflict damage}

to a warship

(39)

Enemy Civil Aircraft

May be attacked if performing functions rendering them _{May be attacked if performing functions rendering them}

legitimate military objectives

However, civil airliners are specially protected_{However, civil airliners are specially protected}

_{Civil airliners are civil aircraft that are clearly marked}_{Civil airliners are civil aircraft that are clearly marked} and engaged in carrying civilian passengers in

and engaged in carrying civilian passengers in

scheduled or non

scheduled or non--scheduled services along Air Traffic scheduled services along Air Traffic Service routes

Service routes

_{Civil airliners are exempt from attack only if they}_{Civil airliners are exempt from attack only if they} –

(40)

Neutral Merchant Vessels

Merchant Vessels are considered neutral if flying the _{Merchant Vessels are considered neutral if flying the}

flag of a neutral State (prima facie evidence only !)

Enemy character can be determined by registration, _{Enemy character can be determined by registration,}

ownership, charter or other criteria

Neutral merchant vessels are subject to visit and search _{Neutral merchant vessels are subject to visit and search}

(and capture)

(41)

Neutral merchant Vessels as

Legitimate Military Objectives if …

Breaching or attempting to breach a blockade_{Breaching or attempting to breach a blockade}

_{Resisting visit, search, and capture}_{Resisting visit, search, and capture}

Engaging in belligerent acts on behalf of the enemy_{Engaging in belligerent acts on behalf of the enemy}

_{Acting as enemy auxiliaries}_{Acting as enemy auxiliaries}

Incorporated into or assisting the enemy_{Incorporated into or assisting the enemy}’’s intelligence s intelligence system

system

(42)

Methods and Means of Naval

Warfare

_{Surface Warships, Military Aircraft, and}

Submarines (including unmanned vehicles)

Missiles and Guns

_{Missiles and Guns}

Naval Mines

_{Naval Mines}

Torpedoes

_Torpedoes

Blockade

_Blockade

“

_“

Zones

”

(43)

Submarines

1936 London Protocol:_{1936 London Protocol:}

Customary Law (San Remo Manual):_{Customary Law (San Remo Manual):}

“In their action with regard to merchant

ships, submarines must conform to the

rule of International Law to which surface

ships are subject.”

(44)

Naval Bombardment

1907

1907 Hague Convention IX:Hague Convention IX:

_{May not attack undefended}_{May not attack undefended}

towns, villages, dwellings, or

buildings

_{In sieges and attacks, spare}_{In sieges and attacks, spare}

buildings dedicated to

religion, art, science, or

charitable purposes, historic

monuments, hospitals...

_{Provided they are not being}_{Provided they are not being}

used for military purposes

(45)

Naval Bombardment

Hague IX and Additional Protocol I

_{Hague IX and Additional Protocol I}

Distinguish between civilians or other

_{Distinguish between civilians or other}

protected persons and combatants and civilian

or exempt objects and military objectives

Forbidden to:

_{Forbidden to:}

–

cause superfluous injury/unnecessary

suffering

–

(46)

Naval Bombardment

Protocol I, Art 51(5)(a):_{Protocol I, Art 51(5)(a):}

“

“an attack by bombardment an attack by bombardment by any methods or means

by any methods or means

which treats as a single

military objective a number

of

of clearlyclearly separated and separated and distinct military objectives

distinct military objectives

located in a city, town,

village, or other area

village, or other area”” is is prohibited.

prohibited.

Not a complete ban_{Not a complete ban}

_Is_Is_‘_‘_clarity_clarity_’_’ _{a matter of}_{a matter of}_–_– –

– Objective determination, Objective determination, or

or

–

– Subjective appreciation Subjective appreciation (poor weather/visibility)?

(47)

Missiles and Guns

San Remo Manual:_{San Remo Manual:}

“Missiles and projectiles, including those

with over-the-horizon capabilities, shall be

used in conformity with the principles of

target discrimination …”

(48)

Torpedoes

San Remo Manual:_{San Remo Manual:}

“It is prohibited to use torpedoes which do

not sink or otherwise become harmless

(49)

Mine Warfare at Sea

1907 Hague Convention VIII restricted to _{1907 Hague Convention VIII restricted to}

“

“automatic submarine contact minesautomatic submarine contact mines””

However, Hague VIII contains general principles _{However, Hague VIII contains general principles}

that apply to modern naval mines as well

Accordingly, mine warfare at sea is governed by _{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

_{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 & notificationMust be established by declaration & notification –

– Applied with impartialityApplied with impartiality –

– Effective (i.e. enforced Effective (i.e. enforced –– question of fact)question of fact) –

– Must not block access to neutral portsMust not block access to neutral ports –

– Must allow food or supplies for survival of civilian Must allow food or supplies for survival of civilian population to pass through

(51)

“Zones”

War Zones, Military _{War Zones, Military}

Areas, Barred Areas,

Operational Zones Operational Zones Examples_Examples – – WWI/WWII WWI/WWII Exclusion/War Zones Exclusion/War Zones – – UK/Argentine UK/Argentine Exclusion Zones (1982) Exclusion Zones (1982)

(52)

Zones to be Distinguished from …

_Blockade

_{Control of the Immediate Area of Naval}

Operations

(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.

(54)

Zones: ILA Helsinki Principles

3.3 Special Zones

Subject to Principle 5.2.9 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.

(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 8.1.2.1), 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

(56)

Zones: Definition & Legal Limits

Definition:

_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

(57)

Zones: Legal Limits

Prior notification specifying the location, duration and _{Prior notification specifying the location, duration and}

extent of the zone and of the measures to be imposed

within the zone

_No_No_“_“_free_free_-_-_{fire zone}_{fire zone}_”_”_{/No derogation from the law of naval}_{/No derogation from the law of naval} warfare, i.e. the same body of law applies both inside and

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 _{Extent, location and duration of the zone and the measures}