Methods and Means of Naval Warfare in Non-International Armed Conflicts

AuthorWolff Heintschel von Heinegg
PositionProfessor of Public Law, Europa-Universitat Viadrina, Frankfurt (Oder), Germany
Pages211-236
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Methods and Means of Naval Warfare in
Non-International Armed Conflicts
Wolff Heintschel von Heinegg*
Introduction
Thelaw of naval warfare is part ofthe larger body oflaw applicable to interna-
tional armed conflicts. 1Accordingly, it applies to an armed conflict between
two or more States, including conflicts involving State-sponsored forces. 2Whether
the law of naval warfare also applies to situations of non-international armed con-
flicts is acontentious issue. Therefore, the distinction between international and
non-international armed conflicts is important when it comes to the applicability
of the law of naval warfare to a particular armed conflict.
Unfortunately, the distinction between international and non-international
armed conflicts is less clear than it seems at first glance. On the one hand, the "facts
on the ground" may make it difficult to draw the line of demarcation between the
two.3Additionally, international scholars have taken quite different positions. For
some, the distinctive criterion is the identity of the parties to the conflict, with the
issue being whether or not those parties qualify as States under public interna-
tional law.4For others, it is not the identity of the parties alone, but also the geog-
raphy of an armed conflict; they are prepared to apply the law applicable to
international armed conflict to any case in which armed conflict "crosses the bor-
ders of the state," 5even if one of the parties is anon-State actor.6Still others believe
that the distinction has become irrelevant, because, they maintain, the formerly
*Professor of Public Law, Europa-Universitat Viadrina, Frankfurt (Oder), Germany.
Methods and Means ofNaval Warfare in Non-International Armed Conflicts
separate bodies of law have merged into asingle body of law applying equally to
both international and non-international armed conflict. 7
With regard to the alleged merger, it is acknowledged that there has been a
remarkable development of the law of non-international armed conflict during
the last decade. Some treaties no longer distinguish between international and
non-international armed conflicts. 8The concept of war crimes, until recently
strictly limited to international armed conflicts, has been introduced into the law
of non-international armed conflict. 9Still, it is doubtful whether that develop-
ment justifies the conclusion that the two bodies of law have merged. First, those
treaties that do not distinguish between international and non-international
armed conflict have not become customary international law. Second, one of the
prime references relied upon by the International Criminal Tribunal for the for-
mer Yugoslavia when addressing international and non-international armed con-
flict issues, the German Humanitarian Law in Armed Conflicts Manual is under
revision. The first edition did not distinguish between the two; however, the forth-
coming second edition will contain aseparate section on non-international armed
conflicts. Third, those who advocate amerger focus on the obligations and prohi-
bitions imposed upon the parties to the conflict. In other words, they maintain
that in both international and non-international armed conflict the parties are in-
creasingly bound by the same rules, while ignoring the fact that the law of interna-
tional armed conflict offers belligerents certain rights, especially vis-a-vis the
nationals of other States (neutrals). This especially holds true for the law of naval
warfare, which provides for prize measures, blockade and various maritime zones.
It is doubtful that the proponents of merger would be prepared to accept the exer-
cise of the full spectrum of belligerent rights during anon-international armed
conflict, even if exercised only by the State actor.
Those who focus on the identity of the parties to the conflict to determine the
nature of the conflict are correct insofar as anon-international armed conflict pre-
supposes that at least one party to the armed conflict is anon-State actor. This does
not mean, however, that geography is irrelevant. To the contrary, according to
Common Article 3, which appears in each of 1949 Geneva Conventions, the armed
conflict must occur "in the territory of one of the High Contracting Parties." 10 Ar-
ticle 1(1) of 1977 Additional Protocol II applies to "all armed conflicts which take
place in the territory of aHigh Contracting Party." 11 Hence, it cannot be denied
that non-international armed conflict is characterized by aterritorial element.
Those who take the position that an international armed conflict comes into ex-
istence as soon as there is atrans-border element seem to base that position on alit-
eral reading of the provisions of Common Article 3and Additional Protocol II.
However, mere "spillover effects" into the territory of another State do not
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