{"id":943,"date":"2022-04-29T10:08:52","date_gmt":"2022-04-29T08:08:52","guid":{"rendered":"https:\/\/site.uit.no\/nclos\/?p=943"},"modified":"2023-02-14T09:47:21","modified_gmt":"2023-02-14T08:47:21","slug":"guidelines-for-grey-zone-naval-incidents-distinguishing-between-the-rules-of-armed-conflict-and-law-enforcement","status":"publish","type":"post","link":"https:\/\/site.uit.no\/nclos\/2022\/04\/29\/guidelines-for-grey-zone-naval-incidents-distinguishing-between-the-rules-of-armed-conflict-and-law-enforcement\/","title":{"rendered":"Guidelines for Grey Zone Naval Incidents: Distinguishing between the Rules of Armed Conflict and Law Enforcement"},"content":{"rendered":"\n

By: <\/strong>Alexander Lott<\/a><\/p>\n\n\n\n

PDF Version:<\/strong> Alexander Lott_Guidelines for Grey Zone Naval Incidents_NCLOSblog_290422<\/a><\/p>\n\n\n\n

Matter commented on<\/strong>: Hybrid naval warfare; Distinction between naval warfare and maritime law enforcement<\/p>\n\n\n\n

1. Introduction<\/strong><\/p>\n\n\n\n

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. The guidelines are based on the relevant case law and systemized into three scenarios: first, a commercial ship vs. government ship\/warship (State vessel) scenario; second, a State vessel vs. commercial ship scenario; third, a State vs. State scenario. The analysis focuses on the use of force against ships, but the rules apply mutatis mutandis <\/em>also in relation to aircraft and installations and structures at sea.<\/p>\n\n\n\n\n\n\n\n

<\/a>2. Use of Force by State Vessels against Attacks Launched from Commercial Ships<\/strong><\/a><\/p>\n\n\n\n

Force may be used to defend a government ship or warship <\/a>against an attack that has been launched by private persons on-board a commercial ship or structure (e.g., a platform). For example, <\/a>the use of force <\/a>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, <\/a>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<\/a> the UN Charter<\/a> (1986 Judgment of the ICJ<\/a> in Military and Paramilitary Activities in and against Nicaragua, <\/em>para. 195; 2005 Judgment of the ICJ<\/a> in Armed Activities on the Territory of the Congo<\/em>, <\/em>para. 146; Definition of Aggression<\/a>, Art 3(g)).<\/p>\n\n\n\n

The ICJ has found that: \u201cArticle 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.\u201d (<\/a>2004 Advisory Opinion of the ICJ<\/a> in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory<\/em>, para. 139). The ICJ has not recognised that Article 51 would encompass actions by non-State actors which are not attributable to any State. Notably, t<\/a>he ICJ\u2019s strict position on that issue has been criticized in the relevant legal literature (see, e.g., Ruys and Verhoeven<\/a> at p. 305), since Article 51 of the UN Charter does not expressis verbis<\/em> limit the scope of perpetrators of an \u2018armed attack\u2019 to States. The ICJ\u2019s high threshold of an armed attack that triggers the right of self-defence under Article 51 raises questions of the range of available measures for a conflicting side against whom force has been unlawfully used.<\/p>\n\n\n\n

If a private person uses force against government ship or warship, then its crew has the right to employ defensive measures to the degree necessary for deterring the attack. Depending on the situation, this may involve counterfire and deliberate sinking or destruction of the commercial ship or structure even if it means, in extreme circumstances, a potential loss of human life. Recourse to administrative law-based framework of law enforcement measures and criminal law-based concept of self-defence is available for the crew of the targeted government ship or warship. The criminal law-based concept of self-defence also applies in cases where a commercial vessel uses force against another commercial vessel, e.g. in a context where there is an armed security team onboard (for example, for counterpiracy purposes).<\/a><\/p>\n\n\n\n

Under its case law, the ICJ has introduced an innovative concept of countermeasures (<\/a>1980 Judgment of the ICJ<\/a> in the United States Diplomatic and Consular Staff in Tehran<\/em>, para. 53; 1986 Judgment of the ICJ<\/a> in Military and Paramilitary Activities in and against Nicaragua, <\/em>para. 248; 1997 Judgment of the ICJ<\/a> in Gab\u010dikovo-Nagymaros Project<\/em>, para. 82). Ruys and Verhoeven<\/a> have characterised it as a \u201cvery controversial and contested concept\u201d (at p. 309). It is unclear if States may employ proportionate countermeasures involving force (as suggested, for example, by <\/a>Klein<\/a>, at pp. 267, 270). The ICJ has not addressed the question if States are allowed to use firearms under the concept of countermeasures for deterring unlawful use of force. Yet it is doubtful that the use of force falls within the scope of the legal concept of countermeasures. Rather, the victim State cannot make use of the law of countermeasures as a legal basis for its use of force against an attack launched from commercial ships<\/a>. The Annex VII Arbitral Tribunal has found that: \u201cIt is a well established principle of international law that countermeasures may not involve the use of force\u201d (2007 Award of the Arbitral Tribunal<\/a> in Guyana vs. Suriname Arbitration<\/em>, para. 446; see also Article 50(1)(a) of the ILC Articles on State Responsibility<\/a>).<\/p>\n\n\n\n

The victim State needs to comply with Article 2(4) of the UN Charter when employing law enforcement or criminal law-based measures to counter such attacks of non-State actors that fall below the \u2018gravity threshold\u2019 of an armed attack, as set by the ICJ. Consequently, the victim State\u2019s 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. Hence, the measures employed by the victim State in response to an unlawful attack against a ship flying its flag may give rise to potential breaches of human rights law if it cannot rely on the derogation clauses of human rights law that apply in emergency situations or international humanitarian law as lex specialis <\/em>(see, e.g. ECtHR\u2019s <\/a>Guide on Art 15 of the ECHR<\/a>, ICRC\u2019s guide<\/a> on derogations).<\/p>\n\n\n\n

Nonetheless, the victim State may invoke the right of self-defence under Article 51 of the UN Charter if it can prove another State\u2019s substantial involvement in the attack that was carried out by non-State actors. For this, the victim State needs to show that:<\/p>\n\n\n\n