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The Tanker War and the Law of Armed Conflict (Loac)

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The Tanker War and the Law of Armed Conflict (Loac) Chapter V THE TANKER WAR AND THE LAW OF ARMED CONFLICT (LOAC) he 1980-88 Tanker War nearly ran the gamut of issues related to the law of T armed conflict (LOAC), or the law ofwar (LOW) and its component, the law of naval warfare (LONW). The general law of maritime neutrality, general issues of necessity and proportionality, and issues of specific concern-visit and search including operations against convoyed, escorted or accompanied neutral mer­ chant ships; commerce ofbelligerents including belligerents' convoys and contra­ band; acquisition of enemy character; blockade, maritime exclusion and other zones and other uses of the ocean for warfare; capture of neutral vessels; humani­ tarian law and belligerents' personnel interned by neutral governments; targeting of ships and aircraft including convoys; conventional weapons; mine warfare; treatment of noncombatants, e.g., merchant seamen; deception (ruses ofwar) dur­ ing armed conflict-all figured during the Tanker War. These are the subjects of this Chapter as they applied to belligerents and neutrals during the war. Chapter III analyzed UN Charter law with particular reference to the law of self-defense and its relationship to the law ofneutrality, the law oftreaties, custom­ ary law, andjus cogens-based norms, and the general principles ofneutrality as they apply to war at sea, and to conduct between neutrals and belligerents. This Chapter will not repeat that analysis, except as it interfaces with the LOAC in situations in­ volving neutrals, e.g., mine warfare, discussed in sub-Part G.2. Chapter IV analyzed the law of the sea, and those principles will not be repeated in here, except as LOS concepts, e.g., due regard for others' uses of the sea, 1 apply by analogy in the LOAC. The LOS conventions are subject to the LOAC during war because of operation of these treaties' "other rules of international law" clauses.2 Because these clauses, at least for high seas areas and perhaps other parts of the ocean, restate customary law,3 LOS customary rules are also subject to the LOAC for countries not party to the LOS conventions. This Chapter tries to give content to those other rules ofinternationallaw, the LOAC, to which the law of the sea is subject. Law of treaties principles declaring suspension or termination of treaties' operation during war may also apply.4 This Chapter also attempts to place LOS principles in the LOAC context, e.g., by analyzing how the LOS rules for the territorial sea interact with LOAC principles governing war at sea. While many international agreements governing land, sea and air warfareS remain primarily subject to customary norms, general principles of law, com­ mentators' research including military manuals,6 occasional judicial decisions, 350 The Tanker War resolutions of international organizations, e.g., the UN General Assembly and Se­ curity Council/ and perhapsjus cogens-based norms.8 Council "decision" compli­ ance is mandatory for UN Members,9 but other international organizations' resolutions can restate or help crystallize rules ofinternationallaw,10 and this was the Tanker War experience. As in the case of LOS analysis, law of treaties principles may apply to agree­ ments governing the LOAC, e.g., impossibility,l1 fundamental change of circum­ stances,12 desuetude,13 or material breach.14 Some LONW treaties have "escape clauses," e.g., "do their utmost" and the like, IS and these treaties' force majeure and distress clauses mayor may not amount to a restated form ofimpossibility or fun­ damental change, 16 but the possibility remains for these kinds ofclaimsP Armed conflict does not vitiate treaties governing humanitarian law,18 e.g., the 1949 Geneva Conventions,19 or agreements governing the law ofwarfare, including the law ofneutrality. Law oftreaties principles cannot operate to suspend or terminate custom, including custom derived from or restated in international agreements, e.g., those governing armed conflict. Thus claims of impossibility, fundamental change ofcircumstances or desuetude cannot be applied to customary law derived from treaties. If a treaty has an exception clause, e.g., for entry in distress,20 and if that exception is also a customary rule, that exception must be applied to the basic rule in the treaty that has become custom. If treaty-based custom has lapsed into disuse, a new custom or treaty norm may have taken its place. There is always the possibility ofapplication of other sources, e.g., general principles oflaw including humanity and chivalry, and rules laid down by courts and commentators. Part A. Basic Principles: Necessity and Proportionality; ROE; the Spatial Dimension The principles of necessity and proportionality apply when the inherent right of individual or collective self-defense is invoked.21 However, the law of armed conflict also requires application of necessity and proportionality; it has its own standards for these principles,22 now firmly embedded in CUl>tom. Necessity is, of course, not the same as military necessity or kriegsraison, a defense rejected by the Nuremberg trials.23 NWP 9A Annotated, published at the end'of the Tanker War, ably recites the customary rules of necessity, proportionality and the rule against perfidious conduct during armed conflict: The law of armed conflict seeks to prevent unnecessary suffering and destruc­ tion by controlling and mitigating the harmful effects of hostilities through minimum standards of protection ... accorded to "combatants" and "noncomba­ tants." ... [T]he law of armed conflict provides that: 1. Only that degree and kind offorce, not otherwise prohibited by the law of armed conflict, required for the partial or complete submission of the Law of Armed Conflict 351 enemy, with a minimum expenditure of time, life, and physical resources may be applied. 2. The employment of any kind or degree offorce not required for ... partial or complete submission of the enemy with a minimum expenditure of time, life, and physical resources, is prohibited. 3. Dishonorable (treacherous) means, ... expedients, and ... conduct dur­ ing armed conflict are forbidden.24 However, the LOAC is not intended to impede waging war: Its purpose is to ensure that the violence of hostilities is directed toward the enemy's forces and is not used to cause purposeless, unnecessary human misery and physical destruction .... [T]he law of armed conflict complements and supports the principles ofwarfare ... in the concepts ofobjective, mass, economy offorce, surprise, and security. The LOAC and principles ofwarfare underscore the importance ofconcentrating forces against critical military targets while avoiding expending personnel and re­ sources against militarily unimportant persons, places and things.25 NWP 9A Annotated also explains policies behind the customary rules of neces­ sity and proportionality: As long as war is not abolished, the law of armed conflict remains essential. During such conflicts the law of armed conflict provides common ground of rationality between enemies. This body oflaw corresponds to their mutual interests during conflict and constitutes a bridge for a new understanding after the end of the conflict. The law of armed conflict is intended to preclude purposeless, unnecessary destruction oflife and property and to ensure that violence is used only to defeat the enemy's military forces. If followed by all participants, the law of armed conflict will inhibit warfare from needlessly affecting persons or things oflittle military value. By preventing needless cruelty, the bitterness and hatred arising from armed conflict is lessened, and thus it is easier to restore an enduring peace. The legal and military experts who attempted to codify the laws of war more than a hundred years ago reflected this when they declared that the final object of armed conflict is the "reestablishment of good relations and a more solid and lasting peace between the belligerent States.,,26 The return of Tanker War prisoners of war illustrates the point of a potential for "bitterness and hatred" long after the shooting stops. Humanitarian law requires that prisoners ofwar be repatriated promptly after hostilities end, if they have not been returned previously because ofwounds or illnessP Nevertheless, a decade af­ ter the war ended, most prisoners of war had not been repatriated, and this was a central issue in protracted final settlement negotiations.28 This might be con­ trasted with rapid US turnover of surviving Iran Ajr crew after that incident.29 352 The Tanker War Beyond the broad sweep of the customary rules of necessity, proportionality and prohibition against perfidy, problems in law and practice remain. 1. Necessity and Proportionality in Self-Defense and in the Conflict Context The same terms, necessity and proportionality, are employed in thejus ad bello context of the inherent right of self-defense, and particularly anticipatory self-de­ fense,30 as injus in bello situations. What passes muster as a necessary and propor­ tionate response in self-defense may not necessarily pass muster as a necessary and proportionate response against the same object once armed conflict has begun, and vice versa. Comparing the definition of anticipatory self-defense and the LOAC principles demonstrates this. NWP I-14M Annotated, differing slightly from its predecessor, says: "Anticipatory self-defense involves the use offorce where attack is imminent and no reasonable choice ofpeaceful means is available. " Under either . this view or Caroline Case principles,31 it is clear that necessity in combat need not await the enemy's attack or threat of attack. LOAC necessity principles apply in that context, to be sure, but also when a belligerent attacks orifit is necessary to de­ fend against a belligerent's attack. The same can be said about proportionality dur­ ing combat; the principle applies for attack or defense during war as well as in self-defense situations, but what is proportional for LOAC situations mayor may not be proportional in a self-defense scenario. Moreover, the law of self-defense says little, if anything, about the third LOAC principle, prohibition against per­ fidy, although it should.
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