MARITIME INTERNATIONAL LAW PART 26

THE RULES OF WAR: WAR AT SEA AND IN THE LITTORAL ZONE: PART ONE WHAT IS "WAR"

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   WAR DEFINED

For the purpose of international law war is usually defined as " a legal condition of armed hostility between states."  Armed hostility generally implies armed actions and violent acts, but a state of war may exist without such acts. A legal state of war does not end until formal peace treaties are adopted by all belligerents. For example, after the unconditional surrender of Japan in 1945, a legal state of war existed between Japan and the United States until formal treaties were adopted in 1952.

 The greatest change in the legal concept of war that occurred in the twentieth century was the use of armed force pursuant to United Nations decisions. Armed intervention pursuant to U. N. Charter articles is not legally defined as "war". When armed actions involving U.S. forces do not meet the international legal definition of "war",U.S. domestic law. U.S. Courts must decide if an "armed conflict" will trigger the application of war clauses in contracts or insurance policies. Similarly, U.S. civilian courts must determine if an armed conflict other than a congressionally declared war" is a "war" within the meaning of the certain provisions of the Uniform Code of Military Justice.

 From the viewpoint of a sailor or marine the concern with the international law of war is more practical. It consists of identifying prohibited weapons, tactics, and targets; dealing with the enemy as a prisoner; relations with civil populations in the combat area, and the rights and duties of of prisoners of war. Fortunately, all such practical applications of the law of war apply in all armed conflicts.  Today the U.S. Department of Defense issues guidance in a pamphlet form addressing the "Law of Armed Conflict" vice the "Law of War". All practical applications of the international law of war apply in in all "Armed conflicts" involving "belligerents" as defined in international law.

 The so called "drug wars" that involve interdicting inbound narcotics destined for the U.S. have their own "rules of engagement" based on U.S, criminal and customs law and international law concerning the rights of approach, hot pursuit, and other internationally recognized principles of at- sea customs law enforcement. The "use of force" policy in this "war" is articulated in the Coast Guard Commandant's "Use of Force" policy and generally follows U.S. criminal law enforcement practice.

 The so called "War on Terror" is perhaps the most complex armed conflict yet. At and within our borders so far it has largely been dealt with in accordance with standard police use of force policy.
Such police style use of force policies are quite a bit more restrictive than than typical "rules of engagement" in armed conflict. Under the international Law of Armed Conflict rules of engagement may include laying in wait for the enemy combatants and opening fire upon recognition. Armed forces are allowed to pursue and fire at the backs of fleeing enemies. Efforts to kill enemy combatants only stop once an enemy has been wounded and disabled of his use of weapons, or when the enemy drops his weapon and raises his hands in surrender. Outside of the U.S. borders our armed forces have chased and engaged in large scale operations against terrorists and some cases the duly constituted armed forces of terrorists host states. The biggest issue resulting so far is what to do with enemy "combatants" who are not part of the armed forces of any state. When we pick up people on a foreign battle field who have borne arms against the forces of the United States and they are not part of any recognized nation's duly constituted armed forces. They may certainly be treated as prisoners of war for a time if there are no criminal charges against them and it would be pretty hard to label armed resistance to an invading armed force by any citizen of any nation forcibly entered as a"crime'. The problem with the "unlawful combatant" is that by not being a member of a duly constituted national armed service there is no one to deal with relative to the ultimate release of such a prisoner of armed conflict. All real members of duly constituted national military organizations taken as prisoners of war are released shortly after the cessation of hostilities. They are repatriated to their parent military service. We are not going to release terrorists to terrorist organizations. " Unlawful combatants" are terrorist suspects captured alive outside of the jurisdiction of any state inclined to prosecute them they become a big and complex issue. They must be incarcerated and treated humanely, but they can not be tried for crimes if the only evidence we have is that they were captured while bearing arms against the forces of a legitimate nation state.  With the development of international terrorism we enter new ground where the terrorists are operating ahead of the curve of the law of armed conflict. A growing number of these unlawful combatants are going to be rotting in special prisons for a long time while the international community tries to figure this one out. Meanwhile the pressure from human rights organizations is on all nations holding such prisoners, especially the United States to do something so that their incarceration doesn't amount to a life sentence. So far experiments by the United States in "Early Release" have run afoul of recorded incidents where the released prisoner has then gone on and participated in a terrorist attack that did constitute a crime under the national law of the nation where the attack was perpetrated.

 In so far as "armed conflict" in a purely military sense is absent overtones of domestic law enforcement, the International Law of Armed Conflict applies regardless of the status of the conflict as "declared war" or other internationally recognized status of "war". The application of the International Law of War applies in all "armed conflicts". Article 2 of the Geneva Convention of 1949 on the subject applied the law of war in all cases of declared war and 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.
                                              
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