Security Law:
Guidelines for Grey Zone Naval Incidents:
Distinguishing between the Rules of Armed Conflict and Law Enforcement
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By: Alexander Lott
PDF Version: Alexander Lott_Guidelines for Grey Zone Naval Incidents_NCLOSblog_290422
Matter commented on: Hybrid naval warfare; Distinction between naval warfare and maritime law enforcement
1. Introduction...
This short blog post aims to provide guidance for parties to hybrid naval warfare for determining whether the rules of armed conflict or law enforcement are applicable to various situations where force has been used against ships.
2. Use of Force by State Vessels against Attacks Launched from Commercial Ships
Force may be used to defend a government ship or warship against an attack that has been launched by private persons on-board a commercial ship or structure (e.g., a platform).
For example, the use of force may be necessary to counter a terrorist attack launched by explosive-laden boats or in response to irregulars who use a commercial oil platform as their base. Notably, if the government ship or warship was attacked by such private persons that were not acting on behalf of a foreign State and nor was a foreign State substantially involved in such attack by non-State actors, then the victim State cannot invoke the right of self-defence under Article 51 of the UN Charter (1986 Judgment of the ICJ ...
[MRT: Note that Russia has not retaliated]
Definition of Aggression, Art 3(g)).
The ICJ has found that: “Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of armed attack by one State against another State.”
[MRT: Note that USA has tried to de-escalate before the event happened and NATO put straight message that any retaliation will be met with a joint response.]
...
Nonetheless, the victim State may invoke the right of self-defence under Article 51 of the UN Charter if it can prove another State’s substantial involvement in the attack that was carried out by non-State actors.
[MRT: Can the Russia prove the approach by a UK submarine? Of the Ukrainian involvement?]
For this, the victim State needs to show that:
- The State suspected of sponsoring non-State actors meets the characteristics of “sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state” (Definition of Aggression, Art 3(g)).
[MRT: Note that top West officials started straight from the beginning claim it was a "Sabotage" and not an "Armed attack".]
- “Such an operation [of non-State actors], because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces” (1986 Judgment of the ICJ in Military and Paramilitary Activities in and against Nicaragua, para. 195).
If the victim State is successful in claiming that it has the right of self-defence against attacks launched by non-State actors, then its use of force under jus in bello must still comply with the limitations of necessity and proportionality
Law enforcement officials, particularly Navy’s high-ranking military officers in cases where they are performing law enforcement in geopolitically sensitive situations, e.g., in disputed areas, must take caution that they issue clear orders to private persons against whom they are enforcing the coastal State’s law...
Where force is used for stopping a ship, it needs to follow the principle of proportionality. Law enforcement officials or Navy servicemen onboard State-owned ships need to exercise self-restraint when they are using force against commercial ships; use of force “must be avoided as far as possible”...
[MRT: Imagine a scenario in which Germany, France, USA learn about the active mission by the UK against the Nordstream system. Would it be possible to stop it without causing international crisis? ]
Thus, in maritime enforcement, for the use of force to be lawful, it needs to be employed as a last resort. This means that it needs to be clearly shown that other, less-intrusive options for stopping a commercial ship had been exhausted.
[MRT: This investigation opens the possibility, which vast data support, that Norway warned USA and allies against an active attempt for destruction of the Nordstream system. In this case the USA, Allies should be checked for possible contacts the week before the event.]
4. State vs. State Scenario
Determining whether the rules of armed conflict or law enforcement apply in situations where one State has used force against ships of another flag State can be difficult. On this question, there are contradictory views and considerable amount of ambiguity in the relevant case law and legal literature. The following sections are based on a differentiation between so-called tanker war scenario and clashes between warships or government ships of conflicting States...
[MRT: Is the presence of Danish and Swedish navies in the area near Bornholm the week before the event. Were they unsuccessfully trying to stop the perpetrator? The issue is, neither Danish not Swedish ship has any relationship toward the pipeline which is co-owned by Germany/Austria, Netherland, France and Russia. Were these informed about what kind of activities were happening there?]
4.1. ‘Tanker war’ Scenario
For invoking the right of self-defence under Article 51 of the UN Charter in response to attacks against commercial ships, it is necessary for a State to show, inter alia, that:
- There is persuasive evidence that the suspected State bears responsibility for carrying out such attacks
- The State responsible for the attack intentionally and systemically targeted ships flying the flag of the State that invokes the right of self-defence and that the attacks were not indiscriminate, e.g., a mine or missile was simply aimed to hit some target
- The attack caused significant damage, either to ships, their crew, or goods.
- The attacked commercial ships, whatever their ownership, were flying the flag of the State that claims the right of self-defence so that the attacks on the commercial ships can be equated with an attack on that State
4.2. Warship/Government Ship vs. Warship/Government Ship Scenario
Under the LOSC, both warships and government ships (e.g., Coast Guard vessels) are entitled to perform law enforcement operations and may use force in that capacity
[MRT: What kind of naval activities were Danish and Swedish navies executing near Bornholm the week before the event?]
5. Conclusion
The ICJ’s ‘gravity threshold’ for triggering the right of self-defence under Article 51 of the UN Charter leaves a significant room of manoeuvre for States to employ low-intensity use of force against adversaries. Legally speaking, this facilitates the ambiguous domain of hybrid naval warfare that exceeds the level of maritime law enforcement but falls below the threshold of an armed attack under Article 51 of the UN Charter. The victim State will likely be seen as falling under the de minimis threshold and needs to comply with Article 2(4) of the UN Charter when employing law enforcement or criminal law-based measures to counter such attacks that fall below the ‘gravity threshold’ of an armed attack, as set by the ICJ.
Consequently, the victim State’s use of arms needs to strictly stay within the confines of the limits of proportionality that are narrower in the law enforcement and criminal law paradigms as compared to the right of self-defence under Article 51 of the UN Charter.
In border-line cases, even international judicial bodies may be unable to definitely classify certain maritime incidents in their ex post assessments as either falling to the law enforcement or military operations category.
The different approach adopted by the ICJ in the Oil Platforms case entails that a victim State in a low-intensity hybrid naval warfare risks the possibility of being eventually dubbed as an aggressor State if it has subjectively deemed itself entitled to the right of self-defence. Whereas the objective ex post assessment (as made by, e.g., international courts and tribunals) reaches the opposite conclusion that the initial aggression did not meet the threshold of most grave form of the use of force.
Source - link
By: Alexander Lott
PDF Version: Alexander Lott_Guidelines for Grey Zone Naval Incidents_NCLOSblog_290422
Matter commented on: Hybrid naval warfare; Distinction between naval warfare and maritime law enforcement
POST: Who said it is a "Sabotage" first?
[MRT: See? I have said this exactly over a year ago!]
The whole EU leadership is COMPROMISED.
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