LEGALITY OF WAR OR USE OF FORCE

 

19.       Though from the times of Grotius the distinction between just war and unjust war has been accepted in international law, the one feature of the twentieth century has been that several attempts were made to regulate the use of war as a method of settling disputes between States. Use of force may still be resorted to in same very exceptional cases, which are as follows:

 

a.         Self-defense: Every State has an inherent right of self-defense to protect its person and property. Article 51 of the Charter reiterates this right of self-defense which may be exercised individually or collectively.

 

b.         Decolonisation: The UN Charter gives the right of self-determination to peoples of colonies to become independent. This right of self-determination can be exercised peacefully when by mutual consent, the metropolitan country grants independence to its colonial territory. This has happened in the case of many former British colonies like India, Pakistan, Sri Lanka, Burma and many other states of Africa.

 

c.         Recovery of lost Territory: If one State has lost some of its territory to a State which has used farce in violation of Article 2(4) of the UN Charter, the former State has a right to have recourse to use of force to recover the lost territory, in case peaceful means have failed. Thus when Egypt crossed the Suez Canal in October, 1973 in an assault of Israel, there was all round approval of the Egyptians action in the world community and no State called Egypt an aggressor because she used force to recover lost territory.

d.         Under the UN Charter: United Nations Charter envisages use of force under three conditions. Preamble of the Charter says that "armed force shall not be used, save in the common interest." Under Article 42, the Security Council is authorized to resort to use of armed forces if other means as envisaged under Article 41 have not produced the desired results. Article 51 gives the inherent right of self-defense.

 

 

THE LAWS OF LAND WARFARE

 

20.       The Hague Convention, 1907, is a landmark in respect of rules of Land warfare. Hague Convention clarified the status of belligerent States and clarified the distinction between combatants and non-combatants. According to it, the person in the regular army having specific regiment number, etc, are lawful combatants Besides this the guerrillas, volunteers, corps, etc, may also be included in the category of combatants provided they fulfill the following three conditions:

 

a.         They serve under a definite and specific authority.

b.         They have specific emblem, which may be recognized, from distance.

c.         They conduct war in accordance with the rules and customs of war.

 

21.       The next landmark in respect of laws of land warfare was the adoption of the four Geneva Conventions 1949. They were concluded at Geneva in 1949 relating to:

 

a.         The treatment of the prisoners of war.

b.         The amelioration of the condition of the wounded and sick.

c.         The amelioration of the condition of the wounded sick and shipwrecked

Members/of Armed Forces at sea, and

d.         The protection of civilian persons in time of war.

 

COMMON ARTICLE-3

 

22.       In all four of the Geneva Conventions, Article 3 sets out basic human rights for combat situations. This "Common Article 3" applies to non-international conflicts, which are not otherwise covered by the specific rules in the Geneva Conventions. It provides that those who take no active part in the hostilities, including those who are no longer able to fight, are to be treated humanely and in particular, they are to be protected against.

 

a.         Violence to life and person — in particular, murder, mutilation, cruel treatment and torture.

b.         Taking of hostages.

c.         Outrages upon personal dignity — in particular, humiliating and degrading treatment.

d.         The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

 

 

LAWS OF MARITIME WARFARE:

 

23.       The laws of maritime warfare are mainly embodied in the Declaration of Paris (1856), and the Sixth Hague Convention of 1907:

            a.         Declaration of Paris:        The Declaration of Paris (1856) formulated the

            following four principles:

 

(I)        That privatizing is to be abolished.

 

(2)        That neutral flag covers enemy goods with the exception of contraband of war.

 

(3)        That neutral goods, except the contraband of war, are not liable to be captured under the enemy flag.

 

(4)        That blockades, to be real and bindings, must be effective.

 

b.         Attack on Public and Private Vessels of the Enemy: As a General rule, public and private vessels of the enemy, may be attacked and captured in their own ports and Waters of the attacking power, and on the high seas, but not in neutral or neutralized ports and waters. The following, however, are exceptions to the general rule:

(1)        Hospital ships.

(2)        Vessels employed on religious, scientific or philanthropic missions.

(3)        Cartel ships

(4)               Fishing smacks and market boats.

(5)               Enemy ships protected by licenses.

            c.         Neutral Merchant Ships in Enemy Service. The un ratified Declaration of

London 1909 provides that "a neutral vessels will be condemned and, in a general way, receive the same treatment as would be applicable to her if she were an enemy merchant vessel.

 

d.         Bombardment of Coast Towns. The Second Hague Conference of 1907 adopted the Convention concerning bombardment by naval forces in times of war. Article 1 enacted that the bombardment of undefended posts, towns, village, dwellings or other buildings by naval forces was under all circumstances and conditions prohibited.

 

e.         Mines. Conventions VIII of the Hague Conference, 1907, prohibited the laying of unanchored contract mines within they were so constructed as to become harmless within one hour after control of them had ceased.

 

f           Submarines. Upon the outbreak of the First World War German submarines destroyed merchant vessels, battle ships and even neutral vessels, as by their very nature the submarines could not follow the traditional laws of naval warfare, submarines operate effectively by torpedoes.

 

g.         Postal Correspondence. The postal correspondence of the enemy was rendered inviolable by the XI Hague Convention of 1907, although the immunity did not extend to vessels that carried letters.

 

h.         Privateers. These are vessels belonging to private owners which in time of war are furnished with a commission from the state termed as letters of mark authorizing them to carry on war against the enemy, capture enemy vessels and property and destroy his commerce. The first Article to the Declaration of Paris, 1856, recites that "privateering is and remains abolished".

 

j.          Ruses in Sea Warfare. Ruses not amounting to perfidy are permitted in sea warfare as in land warfare. Use of o false flag by a man-of-war is considered lawful when chasing an enemy vessel or trying to escape. It is also lawful to use flag-neutral or enemy for the purpose of drawing on enemy vessel into action. But she must fly her national flag before starting an action.

k.         Geneva Convention 1949. The Geneva Convention of 1949 makes detailed provisions for the amelioration of the condition of the wounded, sick and the shipwrecked members of armed forces at sea.