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| ISBN-13: | 9781108126137 |
|---|---|
| Publisher: | Cambridge University Press |
| Publication date: | 09/19/2017 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| File size: | 3 MB |
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Cambridge University Press
0521850800 - War, Aggression and Self-Defence - by Yoram Dinstein
Excerpt
Part I
The legal nature of war
1 What is war?
A. The definition of war
(a) The numerous meanings of war
The phrase 'war' lends itself to manifold uses. It is necessary, at the outset, to differentiate between 'war' as a figure of speech heightening the effect of an oral argument or a news story in the media, and 'war' as a legal term of art. In ordinary conversation, political manifestos, press reports or literary publications, 'war' may appear to be a flexible expression suitable for an allusion to any serious strife, struggle or campaign. Thus, references are frequently made to 'war on terrorism',1 'war against the traffic in narcotic drugs', 'class war' or 'war of nerves'. As a rule, this is a matter of poetic licence: the metaphor of war merely serves to convey the gravity of the situation. But the metaphor must not be taken literally, lest it create confusion and incongruities derived from the fact that, in legal parlance, the term 'war' is invested with a special meaning.2 A metaphorical 'war' may admittedly segue into a real war in the legal sense: this is what happened in 2001 when Taliban-led Afghanistan gave a haven to Al-Qaeda terrorists responsible for the outrage of the 11th of September (9/11) (see infra, Chapter 7, B, (b), (bb)).
In pursuing the legal meaning of war, a distinction must be drawn between what war signifies in the domestic law of this or that State and what it denotes in international law. War, especially a lengthy one, is likely to have a tremendous impact on the internal legal systems of the belligerents. A decision whether war has commenced at all, is going on, or has ended, produces far-ranging repercussions in many branches of private law, exemplified by frustration of contracts or liability for insurance coverage.3 Similarly, there are multiple relevant issues arising in public law, such as constitutional 'war powers' (i.e. identification of the branch of government juridically competent to engulf the nation in war);4 the authority to requisition enemy property; tax exemptions allowed to those engaged in military service in wartime;5 and criminal prosecutions for violations of wartime regulations (spanning a wide range of topics, from trading with the enemy to rationing of scarce commodities). In consequence, domestic judicial decisions pertaining to war are legion. All the same, one must not rush to adduce them as precedents on the international plane. If a municipal tribunal merely construes the term 'war' in the context of the legal system within which it operates, the outcome may not be germane to international law. Even should a judgment rendered by a national court of last resort purport to set out the gist of war in international law, this need not be regarded as conclusive (except within the ambit of the domestic legal system concerned).
Occasionally, domestic courts - dealing, for instance, with insurance litigations - address the question whether war is in progress not from the perspective of the legal system (national or international) as a whole, but simply in order to ascertain what the parties to a specific transaction had in mind.6 When insurance policies exclude or reduce the liability of the insurer once death results from war, the parties are free to give the term 'war' whatever definition they desire.7 The definition may be arbitrary and incompatible with international law. Nevertheless, there is no reason why it ought not to govern the contractual relations between the parties.
At times, the parties to a private transaction mistakenly believe that a wrong definition of war authentically comports with international law. If a domestic court applies that definition, one must be exceedingly careful in the interpretation of the court's judgment. The dilemma is whether the contours of war, as traced by the court, represent its considered (albeit misconceived) opinion of the substance of international law, or merely reflect the intent of the parties.
When we get to international law, we find that there is no binding definition of war stamped with the imprimatur of a multilateral treaty in force. What we have is quite a few scholarly attempts to depict the practice of States and to articulate, in a few choice words, an immensely complex idea. Instead of seeking to compare multitudinous definitions, all abounding with variable pitfalls, it may be useful to take as a point of departure one prominent effort to encapsulate the essence of war. This is the often-quoted definition, which appears in L. Oppenheim's classical treatise on International Law:
War is a contention between two or more States through their armed forces, for the purpose of overpowering each other and imposing such conditions of peace as the victor pleases.8
(b) An analysis of Oppenheim's definition of war
There are four major constituent elements in Oppenheim's view of war: (i) there has to be a contention between at least two States; (ii) the use of the armed forces of those States is required; (iii) the purpose must be overpowering the enemy (as well as the imposition of peace on the victor's terms); and it may be implied, particularly from the words 'each other', that (iv) both parties are expected to have symmetrical, although diametrically opposed, goals.
It is proposed to examine in turn each of these characteristic features of war. However, it must be borne in mind that when references are made to the prerequisites of war, no attempt is made - as yet - to come to grips with the central issue of the jus ad bellum, viz. the legality of war. Questions of legality will be raised in subsequent chapters of this study. In the meantime, the only question asked is what conditions have to be fulfilled for a particular course of action to be properly designated 'war'.
i. Inter-State and intra-State wars Of the four ingredients in Oppenheim's definition of war, only the first can be accepted with no demur. 'One element seems common to all definitions of war. In all definitions it is clearly affirmed that war is a contest between states.'9
Some qualifying words should nevertheless be appended. International law recognizes two disparate types of wars: inter-State wars (waged between two or more States) and intra-State wars (civil wars conducted between two or more parties within a single State). Traditionally, civil wars have been regulated by international law only to a limited extent.10 More recently, in view of the frequent incidence and ferocity of internal armed conflicts, the volume of international legal norms apposite to them has dramatically increased.11 Still, a single corpus of law applicable to all armed conflicts (inter-State and intra-State) neither exists nor attracts much support.12 Hence, Oppenheim was entirely right in excluding civil wars from his definition. In the present study, inter-State armed conflicts will constitute the sole object of our inquiry.
It is immaterial whether each belligerent recognizes the adversary's statehood. War may actually be the device through which one challenges the sovereignty of the other. As long as both belligerents satisfy objective criteria of statehood under international law,13 any war between them should be characterized as inter-State. Even so, the States involved in an inter-State war must be aligned on opposing sides. If a civil war is raging in Ruritania, and Atlantica assists the legitimate Government of Ruritania (legitimate, that is, in the eyes of the domestic constitutional law) in combating those who rise in revolt against the central authority, the domestic upheaval does not turn into an inter-State war (see infra, Chapter 4, G, (a)). In such a case, two States (Ruritania and Atlantica) are entangled in military operations, but since they stand together against the Ruritanian rebels, the internal nature of the conflict is retained intact. By contrast, if Atlantica joins forces with the insurgents, supporting them against the incumbent Government of Ruritania, this is no longer just a civil war. Still, the changing nature of the war does not necessarily affect every single military encounter. The joint war may have separate international and internal strands, inasmuch as specific hostilities may be waged exclusively between two (or more) States, whereas other combat may take place solely between a single State and those who rebel against it.14 As the International Court of Justice enunciated in the Nicaragua case of 1986:
The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is 'not of an international character'. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.15
Moreover, a country may simultaneously be engaged in both a civil war and an inter-State war, without any built-in linkage between the external and internal foes, although it is only natural for the two disconnected armed conflicts to blend in time into a single war. This is what happened, for instance, in Afghanistan in 2001. The Taliban regime, having fought a long-standing civil war with the Northern Alliance, brought upon itself an inter-State war with an American-led Coalition as a result of providing shelter and support to the Al-Qaeda terrorists who had launched the 9/11 attack against the United States16 (see infra, Chapter 7, B, (b), (bb)). But even as the overall character of the armed conflict was transformed from an intra-State to an inter-State war, some specific hostilities continued to be waged exclusively between the domestic foes (namely, the Taliban forces and the Northern Alliance).
Admittedly, in practice, the dividing line between inter-State and intra-State wars cannot always be delineated with a few easy strokes. Thus, if the internal strife in Ruritania culminates in the emergence of a new State of Numidia on a portion of the territory of Ruritania, and the central Government of Ruritania contests the secession, the conflict may be considered by Ruritania to be internal while Numidia (and perhaps the rest of the international community) would look upon it as an inter-State war. Objectively considered, there may be a transition from a civil war to an inter-State war which is hard to pinpoint in time.
Such a transition may be relatively easy to spot if and when foreign States join the fray. Thus, Israel's War of Independence started on 30 November 1947 as a civil war between the Arab and Jewish populations of the British Mandate in Palestine.17 But on 15 May 1948, upon the declaration of Israel's independence and its invasion by the armies of five sovereign Arab countries, the war became inter-State in character.18
The disintegration of Yugoslavia exposed to light a more complex situation in which a civil war between diverse ethnic, religious and linguistic groups inside the territory of a single country was converted into an inter-State war once a fragmentation into several sovereign States has been effected. The armed conflict in Bosnia may serve as an object lesson. As long as Bosnia constituted an integral part of Yugoslavia, any hostilities raging there among Serbs, Croats and Bosnians clearly amounted to a civil war. However, when Bosnia-Herzegovina emerged from the political ruins of Yugoslavia as an independent country, the conflict transmuted into an inter-State war by dint of the cross-border involvement of Serbian (former Yugoslav) armed forces in military operations conducted by Bosnian Serbs rebelling against the Bosnian Government (in an effort to wrest control over large tracts of Bosnian land and merge them into a Greater Serbia). This was the legal position despite the fact that, from the outlook of the participants in the actual combat, very little seemed to have changed. The juridical distinction is embedded in the realignment of sovereignties in the Balkans and the substitution of old administrative boundaries by new international frontiers.
In 1997, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (the ICTY) held in the Tadic case that from the beginning of 1992 until May of the same year a state of international armed conflict existed in Bosnia between the forces of the Republic of Bosnia-Herzegovina, on the one hand, and those of the Federal Republic of Yugoslavia (Serbia-Montenegro), on the other.19 Yet, the majority of the Chamber (Judges Stephen and Vohrah) arrived at the conclusion that, as a result of the withdrawal of Yugoslav troops announced in May 1992, the conflict reverted to being non-international in nature.20 The Presiding Judge (McDonald) dissented on the ground that the withdrawal was a fiction and that Yugoslavia remained in effective control of the Serb forces in Bosnia.21 The majority opinion was reversed by the ICTY Appeals Chamber in 1999.22 The original Trial Chamber's majority opinion had elicited much criticism from scholars;23 and even before the delivery of the final judgment on appeal, another Trial Chamber of the ICTY took a divergent view in the Delalic case of 1998.24 However, the essence of the disagreement must be viewed as factual in nature. Legally speaking, the fundamental character of an armed conflict as international or internal can indeed metamorphose - more than once - from one stretch of time to another. Whether at any given temporal framework the war is inter-State in character, or merely a civil war, depends on the level of involvement of a foreign State in hostilities waged against the central Government of the local State.
ii. War in the technical and in the material sense The second element in Oppenheim's definition is fraught with problems. According to Oppenheim, a clash of arms between the parties to the conflict is of the essence of war. He even underlined that war is a 'contention, i.e. a violent struggle through the application of armed force'.25 But this is not uniformly in harmony with the practice of States. Experience demonstrates that, in reality, there are two different sorts of war: there is war in the material sense, but there is also war in the technical sense.
War in the technical sense commences with a declaration of war and is terminated with a peace treaty or some other formal step indicating that the war is over (see infra, Chapter 2, A-B). The crux of the matter is the taking of formal measures purposed to signify that war is about to break out (or has broken out) and that it has ended. De facto, the armed forces of the parties may not engage in fighting even once in the interval. As an illustration, not a single shot was exchanged in anger between a number of Allied States (particularly in Latin America) and Germany in either World War.26 Nevertheless, de jure, by virtue of the issuance of declarations of war, those countries were in a state of war in the technical sense.
Until a formal step is taken to bring it to a close, a state of war may produce certain legal and practical effects as regards, e.g., the internment of nationals of the enemy State and the sequestration of their property, irrespective of the total absence of hostilities.27 It can scarcely be denied, either in theory or in practice, that '[a] state of war may exist without active hostilities' (just as 'active hostilities may exist without a state of war', a point that will be expounded infra, iii).28 Oppenheim's narrow definition must be broadened to accommodate a state of war that is not combined with any fighting.
War in the material sense unfolds regardless of any formal steps. Its occurrence is contingent only on the eruption of hostilities between the parties, even in the absence of a declaration of war. This is where Oppenheim's reference to a violent struggle is completely apposite. The decisive factor here is deeds rather than declarations. What counts is not a de jure state of war, but de facto combat. Granted, even in the course of war in the material sense, hostilities do not have to go on incessantly and they may be interspersed by periods of cease-fire (see infra, Chapter 2, C). But there is no war in the material sense without some acts of warfare.
Warfare means the use of armed force, namely, violence. Breaking off diplomatic relations with a State, or withdrawing recognition from it, does not suffice. An economic boycott or a psychological pressure is not enough. A 'Cold War', threats to use force, or even a declaration of war (unaccompanied by acts of violence), do not warrant the conclusion that war in the material sense exists. It is indispensable that some armed force be employed.
The setting of an intervention in support of rebels in a civil war in another country raises some perplexing questions. What degree of intervention brings about a state of war in the material sense? It appears that the mere supply of arms to the rebels (epitomized by American support of Moslem insurgents against the Soviet-backed Government in Afghanistan in the 1980s) does not qualify as an actual use of armed force (see infra, Chapter 7, B, (b), (aa), v). But there comes a point - for instance, when the weapons are accompanied by instructors training the rebels - at which the foreign country is deemed to be waging warfare.29
The jus in bello - governing the conduct of hostilities in the course of an international armed conflict (see infra, B, (a)) - is brought into operation as soon as war in the material sense is embarked upon, despite the absence of a technical state of war. This principle is pronounced in Article 2 common to the 1949 Geneva Conventions for the Protection of War Victims:
[T]he present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.30
Of course, if a state of war exists in the technical sense only - and no hostilities are taking place - the issue of the application of the jus in bello rarely emerges in practice.31
© Cambridge University Press
Table of Contents
Part I. The Legal Nature of War: 1. Armed conflict, war and neutrality; 2. The course of war; Part II. The Illegality of War: 3. Historical perspective of the legal status of war; 4. The contemporary prohibition of the use of inter-state force; 5. The crime of aggression; 6. Controversial consequences of the change in the legal status of war; Part III. Exceptions to the Prohibition of the Use of Inter-State Force: 7. The concept of self-defence; 8. The modalitIies of individual self-defence; 9. Collective self-defence; 10. Collective security.What People are Saying About This
'Because of its clear structure, the frequent cross-references and the frequent use of examples and of cases - real and fictitious -, this legal textbook is a great resource for students studying the ius ad bellum. In particular, the examples facilitate an easy and speedy understanding of the theoretical issues. … The book is also a good reference work for practitioners.' Military Law and the Law of War Review