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Legal Aspects of Targeting in the Law of Naval Warfare

Published online by Cambridge University Press:  09 March 2016

W. J. Fenrick
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 29 , 1992 , pp. 238 - 282
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1992

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Footnotes

*

Commander W. J. Fenrick, Director of International Law, Department of National Defence, Ottawa. The views expressed herein are those of the writer and do not necessarily reflect either the policy or the opinion of the Canadian government. This article is based on a report on Military Objectives in the Law of Naval Warfare prepared by the writer for the Round Table of Experts on International Humanitarian Law Applicable to Armed Conflicts at Sea for the November 10-14, 1989, Meeting in Bochum, Germany, and used as the basis for discussions at the meeting.

References

1 The Oxford Manual and an article commenting on it are contained in Ronzitti, N., ed., The Law of Naval Warfare 277–341 (London, 1988).Google Scholar

2 Blair, C., Silent Victory, Vol. 1, at 352–60 (Philadelphia, 1975).Google Scholar

3 The Peleus Trial (1945), 1 L.R.T.W.C. 1–21.

4 Proponents of this approach include Lauterpacht, E., “The Legal Irrelevance of the ‘State of War’,” (1968) Am. Soc. Int’l L. Proc. 38;Google Scholar O’Connell, D.P., The Influente of Law on Seapower (1975);Google Scholar and Greenwood, C., “The Relationship between Jus ad Bellum and Jus in Bello,” 9 Rev. Int. Studies 221 (1983),10.1017/S0260210500115943CrossRefGoogle Scholar “The Concept of War in Modern International Law,” 36 Int’l and Comp. L.Q. 283 (1987), and ” Self-Defence and the Conduct of International Armed Conflict,” in Dinstein, Y. and Tabory, M., eds., International Law in a Time of Perplexity 273 (1989).Google Scholar

5 Baxter, R.R., “The Definition of War,” 16 Rev. Égypt. de droit Int’l 10 (1960).Google Scholar

6 C.T.S. 1991/2.

7 Ronzitti, op. cit. supra note I, at 349.

8 Ibid., 173.

9 The zonal issue has been discussed in several recent articles, including Leiner, F.C., “Maritime Security Zones Prohibited Yet Perpetuated,” 24 Va. J. Int’l. L. 967–92 (1983–84);Google Scholar Gilliland, J., “Submarines and Targets Suggestions for New Codified Rules of Submarine Warfare,” 73 Georgetown L. J. (1985) 975–1005;Google Scholar Weiss, , “Problems of Submarine Warfare Under International Law,” 22 Intra. L. Rev. of N.Y. 136 (1966–67);Google Scholar and Fenrick, W.J., “The Exclusion Zone Device in the Law of Naval Warfare,” 24 Canadian Yearbook of International Law 91–126 (1986).CrossRefGoogle Scholar None of these articles suggest that every object in a zone should be subject to attack although Weiss adopts the most robust approach to targeting. The zonal issue was the subject of heated discussion at the 1990 Toulon Round Table meeting. Eventually, however, all participants appeared to accept the view that a party to a conflict cannot gain any additional legal rights by establishing zones that might adversely affect the legitimate uses of defined areas of the sea.

10 This summary is based on a similar summary in Doswald-Beck, L., “The International Law of Naval Armed Conflicts The Need for Reform,” 7 It.Y.I.L. 251–82, at 252-4 (1986–87),Google Scholar which, in turn is derived from the 1909 London Declaration concerning the Laws of Naval War, Ronzitti, op. cit. supra note 1, at 223, and the 1913 Oxford Manual.

11 Higgins, A. Pearce, “Defensively Armed Merchant Ships,” in his Studies in International Law and Relations 239–95 (1928).Google Scholar

12 Art. 61 and 62 of 1909 London Declaration.

13 “The General Report presented to the Naval Conference on behalf of its Drafting Committee” 61–161, at 124–25, in Cohen, A., The Deckration of London (London, 1911).Google Scholar

14 Art. 3 and 4 of 1907 Hague Convention XI Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, in Ronzitti, op. cit. supra note 1, at 177.

15 Smith, H.A., The Crisis in the Law of Nations 60–62 (1947).Google Scholar

16 The Dover Castle Case, 16 Am. J. Int’l L. 704–8 (1922).

17 The Llandovery Castle Case, ibid., 708–23.

18 Mallison, W.T., Studies in the Law of Naval Warfare Submarines in General and Limited Wars 36–47 (Washington, 1968).Google Scholar

19 Ronzitti, op. cit. supra note 1, at 348.

20 Ibid, 352.

21 Documents of the London Naval Conference, 1930, at 443 (London, 1930).

22 Trial of the Major Wir Criminals Before the International Military Tribunal Nuremberg, 14 November 1945 – 1 October 1946 (Nuremberg, 1948) (hereinafter IMT), Vol XVIII, at 319.

23 Ibid., 323.

21 Ibid., 323.

25 Ibid., 327.

26 Ibid., 329–30.

27 XXII IMT, 557–60.

28 O’Connell, D.P., “International Law and Contemporary Naval Operations,” 44 B.Y.I.L. 18–85, at 52 (1970).Google Scholar Vanvoukos, A., Termination of Treaties in International Law 271–73 (Oxford, 1985),Google Scholar contends that the London Protocol is no longer binding but his only authorities are the Doenitz decision and the views of O’Connell.

29 Mallison, op. cit. supra note 18, at 142–43.

30 Moehle Trial (1946), 9 L.R.T.W.C. 75–82.

31 Von Ruchteschell Trial (1947), 9 L.R.T.W.C. 82–90.

32 Peleus Trial, op. cit. supra note 3.

33 Ibid., 15.

34 Ronzitti, op. cit. supra note 1, at 503.

35 Tucker, R.W., The Law of War and Neutrality at Sea 267 (Washington, 1955).Google Scholar

36 O’Connell, D.P., The Influence of Law on Sea Power 110 (Manchester, 1975).Google Scholar

37 O’Connell, op. cit. supra note 28, at 34–35.

38 “Selected United States Rules of Engagement, Vietnam era,” 14 Syracuse J. Int’l L. and Comm. 795-828 (1988).

39 Herzog, C., The War of Atonement 263–64 (Jerusalem, 1975).Google Scholar

40 Brown, T.D, “World War Prize Law Applied in a Limited War Situation Egyptian Restrictions on Neutral Shipping with Israel,” 50 Minn. L. Rev. 849–73 (1966).Google Scholar

41 O’Connell, op. cit. supra note 28, at 28–29.

42 Printed in ILM 46 (1970), 472.

43 W. H. von Heinegg, “Visit Search, Diversion and Capture — Conditions of Applicability,” unpublished Introductory Report prepared for the Round Table of Ex-perts on International Humanitarian Law Applicable to Armed Conflicts at Sea, Bergen, 20–24 September 1991.

44 Fenrick, W.J., “Legal Aspects of the Falklands Naval Conflict,” 1 Canadian Forces JAG Journal 29–50 (1985).Google Scholar

45 During the conflict, Iraq attacked 322 ships and Iran attacked 221 ships. R. O’Rourke, “Gulf Ops,” United States Naval Institute Proceedings 1989 Naval Review Issue, 42, at 43.

46 Russo, F.V., “Neutrality at Sea in Transition State Practice in the Gulf War as Emerging International Customary Law,” 19 Ocean Devel. and Int’l L. 381–99, at 381 (1988).10.1080/00908328809545868CrossRefGoogle Scholar

47 Ibid., 397.

48 The most detailed account of the Airbus Incident is the ICAO Report with many attachments contained in ICAO Document C-WP18708 of November 7, 1988. It is difficult to get an adequate grip on the facts of the naval side of the Gulf War but the U.S. Naval Institute Proceedings for the past few years contain several useful articles. The Gulf War was a topic for discussion at two panels of the 1988 Am. Soc. Int’l L. Meeting and at a Conference at Syracuse University, but the proceedings have not yet been published. In addition to Russo, op. cit. supra note 46, see Jenkins, M., “Air attacks on Neutral Shipping in the Persian Gulf The Legality of the Iraqi Exclusion Zone and Iranian Reprisals,” 8 Boston Coll. Int’l and Comp. L.R. 517–49 (1985);Google Scholar “Conference Report The Persian/Arabian Gulf Tanker War,” 19 Ocean Devel. and Int’l L.299-321 (1988); Biller, D.B., “Policing the Persian Gulf,” 11 Loy-L.A. Int’l and Comp. L.J. 171–205 (1989);Google Scholar and Wolfrum, R., “Reflagging and Escort Operation in the Persian Gulf An International Law Perspective,” 29 Va. J. Int’l L. 387–99 (1989).Google Scholar

49 Int’l Leg. Mat 847 (1991).

50 Int’l Leg. Mat. 1325 (1990).

51 Ibid.

52 Ibid.

53 Ibid., 1329.

54 Ibid., 1330.

55 Ibid., 1334.

56 Delery, T., “Away, the Boarding Party,” United States Naval Institute Proceedings 1991 Naval Review Issue, 65–71.Google Scholar

57 Rauch, E., The Protocol Additional to the Geneva Conventions for the Protection of Victims of International Armed Conflicts and the United Nations Convention on the Law of the Sea Repercussions on the Law of Naval Warfare (Berlin, 1984),Google Scholar and “Proceedings of the Committee for the Protection of Human Life in Armed Conflicts on Law of Naval Warfare at 1985 Conference in Gartnisch — Partenkirchen,” 26 Military Law and Law of War Review 9–181 (1987).

58 International Committee of the Red Cross, Commentary on the Additional Protocols 410–20 (Geneva, 1987) and Bothe, M., Partsch, K., & Solf, W., New Rules for Victims of Armed Conflict 198 and 342–48 (Boston, 1982).CrossRefGoogle Scholar

60 French Manual, Art. 20-23; Australian, para. 823; Canadian, paras. 718–19; German, paras. 1034–36; and U.S.A., para. 8.2.3.

61 French Manual, Art. 1; Australian, para. 818; Canadian, para. 715; German, para. 1021 and U.S.A., para. 8.2.1.

62 Schwarzenberger, G., International Law, Vol. 2 — The Law of Armed Conflict 379 (London, 1968).Google Scholar

63 Peleus Trial, op. cit. supra note 3, at 2.

64 Doswald-Beck, op. cit. supra note 10, at 276–82.

65 Amerada Hess v. Argentina Republic, US Court of Appeals (2nd Circuit) 1987, 79 I.L.R. 10.

66 United States Supreme Court Decision in Argentina Republic v. Amerada Hess Shipping Corp et al., 28 Int’l Leg. Mat. 382 (1989).

67 Kaishoven, F., Comments for Bochum Meeting, unpublished, at 7–8,Google Scholar and Kaishoven, F., Enemy Merchant Wissels as Legitimate Military Objectives, unpublished comments for 1990 Newport Meeting, at 6–8.Google Scholar

68 Eberlin, P., “The Identification of Medical Aircraft in Periods of Armed Conflict,” (1982) I.R.R.C. 202–15;Google Scholar “Identification of Hospital Ships and Ships Protected by the Geneva Conventions of 12 August 1949,” (1982) I.R.R.C. 315–28; “Revision of Annex I to Protocol I Regulations Concerning Identification,” (1983) I.R.R.C. 22–27; “The Protection of Rescue Craft in Periods of Armed Conflict,” (1985) I.R.R.C. 140–52; “Underwater Acoustic Identification of Hospital Ships,” (1988) 28 I.R.R.C. 505–18.

69 “Amendments to the Radio Regulations Concerning Medical Means of Transport and Neutral Means of Transport,” (1984) 24 I.R.R.C. 50–59.

70 The near classic discussion of the functional approach to the merchant ship as military objective is Mallison, op. cit. supra note 18, particularly at 97–149. A thoughtful application of the Mallison approach to the Persian Gulf conflict is made by Russo, op. cit. supra note 46.

71 People can also rise above legal standards. The writer occasionally lectures on the law of naval warfare at the Canadian Forces Maritime Warfare Centre in Halifax. One of the attendees at a recent lecture was a Canadian naval officer who was with the Canadian destroyers which deployed to the Persian Gulf. He stated that the hardest decisions he had to make during the period of hositilities were, repeatedly, to decide not to fire at potential targets when he had the autority to engage them because, in his professional judgment, these ships or aircraft did not pose a genuine threat to the ships he was required to protect. Fortunately, his judgment was always correct.