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: Report to the Committee for the Protection of Human Life in Armed Conflicts of the International Society for Military Law and Law of War [1 ed.] 9783428457038, 9783428057030

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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 Warfale

VERöFFENTLICHUNGEN DES INSTITUTS FüR INTERNATIONALES RECHT AN DER UNIVERSITÄT KIEL

Herausgegeben von Jost Delbrück . Wilfried Fiedler Wilhelm A. Kewenig . Rüdiger Wolfrum

90

The Protocol Additional to the Geneva Conventions for the Proteetion of Victims of International Armed Conflicts and the United Nations Convention on the Law of the Sea: Repercussions on the Law of Naval Warfare Report to tbe Committee for tbe Protection of Human Life in Armed ConfIict of the International Society for Military Law and Law of War

by

Dr. iur. Elmar Rauch LL.M.

DUNCKER & HUMBLOT I BERLIN

CIP-Kurztitelaufnahme der Deutschen Bibliothek Rauch, Elmar: 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: report to the Committee for the Proteetion of Human Life in Armed Conflict of the Internat. Soc. for Military Law and Law of War / by Elmar Rauch. - Berlin: Duncker und Humblot, 1984.

(Veröffentlichungen des Instituts für Internationales Recht an der Universität Kiel;

90)

..

ISBN 3-428-05703-1 NE: Institut für Internationales Recht (Kiel): Veröffentlichungen des Instituts ...

Alle Rechte vorbehalten & Humblot, Berlin 41 Gedruckt 1984 bei Berliner Buchdruckerei Union GmbH .• Berlin 61 Printed in Germany

© 1984 Duncker

ISBN 3-428-05703-1

Prefatory Note The Bureau of the International Society of Military Law and Law of War, during its meeting in The Hague (24-27 March 1983), recommended that the next International Congress take place in GarmischPartenkirchen and that the Committee for the Protection of Human Life in Armed Conflict inscribe the Law of the Sea and the Law of Naval Warfare on its agenda. The Board of Directors of the Society unanimously approved these recommendations at the meeting in Dublin (30 June - 3 July 1983). Scholarly preparation of the Congress should commence early in order to enable all interested participants to familiarize themselves with the problems to be discussed. I submit this paper with the desire of contributing to the scientific success of the first International Congress of Military Law and Law of War to be held on German soil. The views expressed herein embody only my own personal reflections and should not be taken as the official position of the German Government or the Ministry of Defense. Neither, of course, do these views necessarily represent the position of the International Society for Military Law and Law of War or the Committee for the Protection of Human Life in Armed Conflict. With the conclusion of the CDDH and UNCLOS III, the Law of Naval Warfare is a particularly suitable subject for an enlightening exchange of views within the framework of an international congress devoted to the Law of War.

Table of Contents I. Introduction ................................................. ......

11

II. Armed Conflict at Sea in general ..................................

20

1. National Liberation Movements and Warships ..................

20

2. Perfidy and Ruses of War .................................... ; .24 3. Normal Mode of Navigation for Submarines III. Area 01 Naval Operations ........................................

27

31

1. Territorial Sea ................................................

31

2. Archipelagic Waters ............................................

32

3. Exclusive Economic Zone ......................................

33

4. International Straits ............................................ a) Transit Passage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b) Long-Standing Treaty Regime ................................

38 38 49

5. Archipelagic Sea Lanes ........................................

53

6. Deep Sea Bed and Ocean Floor

53

7. Self-Defense in Neutral Waters ................................

54

IV. Scope 01 Application 01 Protocol I

57

1. Textual Interpretation of Art. 49

57

2. Preparatory Work .... . .. ... .. . .. ... . .. ........... ..... ... ... ...

61

V. Attacks Irom the Sea against Objectives on Land ..................

67

1. Prohibitions and Restrictions

67

2. Use of Nuclear Weapons

71

VI. Imposition 01 a Blockade ............. : .......................... ;.

80

1. Legal Regime ..................................................

81

2. State Practice .................................................. a) World War I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. b) World War II ...••......•.....•.......•• , .•.••.••.. , .. ,....

83 83 67

Table of Contents

8

3. Protocol I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a) Relief Actions .............................................. b) Starvation of Civilians ......................................

90 90 93

VII. Control 01 Contraband ............................................

95

1. Legal Regime ..................................................

95

2. State Practice .................................................. a) World War I .............................................. b) World War 11 ..............................................

96 96 99

3. Protocol I

99

VIII. Submarine Wariare ...................................... , ....... 102 1. Legal Regime .................................................. 102

2. State Practice ................................................ 103 a) World War I .............................................. 103 b) World War 11 .............................................. 107 3. Protocol I

108

IX. Mine Wariare .................................................... 112 1. Legal Regime .................................................. 113

2. State Practice .................................................. 117 a) World War I .............................................. 117 b) World War 11 .•............................................ 119 3. Law of the Sea Convention .................................... 120 4. Protocol I .................................................... a) Applicability ................................................ b) Prohibitions and Restrictions ................................ c) Atomic Mines ..............................................

127 127 130 131

X. Other Measures against Maritime Commerce ...................... 132 1. Capture and Destruction of Enemy Property .................... 132

2. Right of Angary

............ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 133

3. Unneutral Service .............................................. 134 XI. Immunity 01 Ships, Aircraft and other Vesseis ...................... 135 1. Legal Regime .................................................. 135

2. Protocol I 136 a) Ships and Vessels .......................................... 136 b) Medical Aircraft ............................................ 137

Table of Contents

9

XII. Proteetion 01 the Marine Environment ............................ 139 1. Protocol I

139 a) Relationship between Art. 35 and 55 .......................... 140 b) Meaning of "widespread", "long-term" and "severe" .......... 141

2. Nuclear, Chemical and Biological Weapons ...................... 143 3. Destruction of Nuclear Submarines

143

4. Torpedoing of Supertankers .................................... 147 5. Attacks on Off-Shore Oi! Installations .......................... 151 XIII. Reprisals ........................................................ 154 1. Legal Regime .................................................. 154

2. State Practice .................................................. 154 a) World War I .............................................. 154 b) World War II .............................................. 157 3. Protocol I XIV. Conc1usion

159 ...................................................... 163

Ab breviations AFDI AJIL BGBI BYIL CCD CDDH DEIS DJZ DRK EEZ GYIL ICJ ICRC ILC ILM LNTS LOS MPB PCIJ RdC RDPMDG RGBI RGDIP SIPRI UN UNCLOS UNLS UNTS USNIP USTS YILC ZaöRV ZVR

Annuaire Franc;:aise de Droit International American Journal of International Law Bundesgesetzblatt British Yearbook of International Law Conference of the Committee on Disarmament Diplomatie Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts US Navy Draft Environmental Impact Statement Deutsche Juristenzeitung Deutsches Rotes Kreuz Exdusive Economic Zone German Yearbook of International Law International Court of Justice International Committee of the Red Cross International Law Commission International Legal Materials League of Nations Treaty Series Law of the Sea Marine Pollution Bulletin Permanent Court of International Justice Recueil des Cours (of the Academy for International Law, The Hague) Revue de Droit Penal Militaire et de Droit de la Guerre Reichsgesetzblatt Revue Generale de Droit International Public Stockholm International Peace Research Institute United Nations United Nations Conference on the Law of the Sea United Nations Legislative Series Uni ted Nations Treaty Series United States Naval Institute Proceedings United States Treaty Series Yearbook of the International Law Commission Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zeitschrift für Völkerrecht

I. Introduction With the exception of the Seabed Arms Control Treaty of 1971/ which in any event primarily is an arms control treaty rather than a treaty on naval warfare, the most recent instrument governing the conduct of naval warfare is almost half a century old. Even this instrument, the London Protocol of 1936 relating to restrictions on submarine warfare,2 proved to be a dead letter during World War 11. Hs provisions were so completely disregarded by all belligerents that despite the irrefutable evidence, even the International Military Tribunal at Nuremberg refused to hand down a sentence against the two German admirals who had built, trained and commanded the German U-boat arm. lI In his 1952 artic1e "The Problem of the Revision of the Law of War", Professor Hersch Lauterpacht rightly deplored the vanishing of certain aspects of the law of naval warfare, which had drawn their strength from the tradition al distinction between combatants and non-combatants, military objectives and civilian objects, military needs and civilian needs. With respect to the law of contraband, the law of blockade, and the rules relating to attacks upon merchant vessels on the high seas, Lauterpacht wrote: "If the practice followed by both sides to the conflict is evidence of the legal position, then the traditional law on the subject, derived as it was from the notion of a legally relevant distinction between military and civilian needs, no longer exists ... In view of this there can be no question here of legal arguments drawn from the obsolete armoury of the past. The possibility must be envisaged that total war has irrevocably removed the foundations of a substantial part of this branch of the law and that juristic - or even political - efforts to give them a new lease of life may be in vain."4 Lauterpacht's treatise is remarkably balanced for an Anglo-Saxon scholar, because the evaluation inc1udes the law of contraband and the law of blockade. He thus avoids any one-sided indictment focussing exc1usively on the naval operations of the Axis Powers during World War 11. 1 Jaachim Hinz/Elmar Rauch, Kriegsvölkerrecht, 3rd ed., Köln/Berlin/Bann/ München 1984, No. 1514; BGBI 1972 H, 38. ! LNTS val. 173 (1936-1937),353; Hinz/Rauch (note 1), No. 1532. a See, Judgment of the International Military Tribunal (Nuremberg) of 1 Oetober 1946, AJIL val. 41 (1947),172-333 (304,305,308). 4 BYIL val. XXIX (1952), 360-382.

1:::

1. Introduetion

Wh at Hersch Lauterpacht could not imagine seven years after the end of World War II has actually happened 25 years later. On 10 June 1977 the Diplomatie Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (CDDH) adopted a Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Proteetion of Victims of International Armed Conflicts (Protocol 1).5 As far as the combat provisions of this new treaty instrument are concerned, the basic cornerstone is precisely the revival of the distinction betweßn civilians and combatants, civilian objects and military objectives. The examination of the effects of this new instrument on the law of naval warfare will be the focal point of this paper. Unfortunately, this is a rather difficult task precisely because of the chaotic status of the law of naval warfare which has prevailed since World War I. Apart from some isolated cases decided during the Crimean War, the American Civil War, and the Russo-Japanese War, the law of naval warf are, including the law of prize, was a set of rules which had developed through the centuries up to the Napoleonic wars. The Declaration of Paris, signed 16 April 1856,8 as weH as the six Conventions on the Law of Naval Warfare and on the Law of Neutrality in Naval War, adopted at the Second Hague Peace Conference on 18 October 1907,1 and the Declaration of London concerning the Law of Maritime War, signed 26 February 1909,8 were all codifications of customary rules which had developed during the era of sail. At the outbreak of hostilities in 1914, all parties to the conflict encountered the same difficulties, namely that the traditional rules of naval warfare had become unrealistic. The introduction of new methods and means of warfare and new ways of international communication and transport had brought about tremendous changes of kind. All belligerents in the "Great War" tried more or less faithfuHy to adapt the generally recognized rules of Iaw to the new circumstances they were facing. As will be shown in detail Iater, the Entente Powers gradually did away with the customary rules on contraband control and blockade, while the Central Powers pondered the question of which tradition al rules were applicable to their highly effective new weapon, .the submarine torpedo 5 The text of Protoeol I is reprodueed in Hinz/Rauch (note 1), No. 1570; AJIL vol. 72 (1978), 457-502; ILM vol. 16 (1977), 1391-1441; ZaöRV vol. 38 (1978), 86-146. 6 Hinz/Rauch (note 1), No. 1525; Preußische Gesetzessammlung 1856, 585. 7 Hinz/Rauch (note 1), Nos. 1526--1530, 1537; RGBI 1910, 181 el seq. 8 Hinz/Rauch (note 1), No. 1531. The authentie English text of the London Declaration of 1909 along with extremely interesting lravaux preparaloires is published in: James Brown Seoll (ed.), The Declaration of London, February 26, 1909, Oxford 1919.

I. Introduction

13

boat. In each instance the belligerents decided in favour of wh at they considered to be military necessity. The Entente Powers feIt justified to abolish the distinction between absolute and conditional contraband and to introduce the so-called long distance blockade in order to starve the civilian population of the enemy. The Central Powers, by the same token, considered the submarine, which had no facilities for the accommodation of crews and passengers of enemy merchant ships or neutral blockade runners, as a completely new weapon; commanders were consequently considered not subject to the rules designed for surface ships and could attack and destroy vessels in a duly proclaimed war zone without warning and without making provision for the survival of crews and passengers. Both approaches were tantamount to a complete disregard for any distinction between civilians and combatants. The ambiguity of the law under these circumstances provided an excellent opportunity for reciprocal propaganda and reprisals .. Aside from propaganda and politics, the treatment of foodstuffs as unconditional contraband and the establishment of long-distance blockades by the Entente Powers on the one hand, and the unrestricted submarine warfare waged by the Central Powers on the other created serious legal problems. Had these real-world legal problems been comprehensively analyzed, both by scholars and politicians, in the postwar-era, a significant contribution might have been made to the progressive development in the law of naval warfare; this opportunity was nevertheless wasted. The victorious Entente Powers had so successfully availed themselves of the ambiguities and grey areas of the law of naval warf are to justify their own actions that they were not interested at all in areaffirmation and development of the pertinent rules. What they were interested in was only to outlaw the effective use of the one and only new means of naval warfare that had been used to the advantage of the Central Powers, i. e. the submarine. The first agreement for this purpose was the Washington Naval Treaty, signed 6 February 1922,9 which contained stringent restrictions on the employment of submarines in naval warfare so as to prevent their use as commerce destroyers. This treaty never entered into force. The next step was the London Naval Treaty of 22 April 1930/° which included further restrictions on the use of submarines. These latter restrictions were subsequently incorporated into the London Protocol of 6 November 1936, mentioned above. l l 9 United States of America, Statutes at Large vol. 46, No. 2858; USTS, No. 830, Washington 1931. 10 British Parliamentary Papers (1930), Command Paper 3758. 11 See, supra, note 2.

14

1. Introduction

As for the rest of the law of naval warfare, the uneertainties remained. Even with respect to the subjeet matter eontained in the London Protoeol of 1936, nothing was achieved eoneerning the aetual eonduet of eombat at sea. It is my eonsidered opinion that the chaotie status of the law of naval warfare before and during World War II is mainly due to this schizophrenie attitude of the vietorious powers of World War I. If the eommunity of nations had been genuinely interested in closing the gap between the traditional rules eoneeived more than a eentury before and the realities of war at sea in the first half of the twentieth eentury, the efforts would have had to extend to the law of contraband and blockade as weIl, rather than being restrieted to the law of submarine warfare. 12 As for World War 11, one ean safely say that all parties to the eonfliet eontributed further to the erosion of the distinetion which is the hallmark of Protoeol I. The traditional law, founded firmlyon the notiOIlj of a legally relevant distinction between military and civilian needs, was more or less wiped out. When the International Law Commission (ILC) of the United Nations in 1949 decided on its programme of work for the following years, it eonsidered whether the law of war should be seleeted as a topie for eodifieation. 13 The majority of the ILC declared itself opposed to the study of this problem at that stage. It was suggested that if the Commission, at the very beginning of its work, were to undertake such a study, publie opinion might interpret its action as a sign of lack of eonfidenee in the efficaey of the means at the disposal of the UN for maintaining peace. 14 More than three deeades later, it is still of interest to review briefly the arguments of those opposed to including this topie on the ILC agenda. MI. Scelle (Franee) pointed out for example, that since the Charter had outlawed war, there would no longer be any question of the law of war. Mr. Koretsky (USSR) argued that the Commission should not transform itself into a legal general staff, which might pursue its aetivities in eoneert with the general staff of NATO; the ILC should therefore eategorieally refuse to diseuss war. Mr. Brierly (United King12 A typical example for this legal sdlizophrenia can be found in the article by H. W. Malkin, Blo