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War and Armed Conflict[1]

Table of Contents

QUESTION BANK

What do you mean by Intervention? What are the grounds of Intervention?
Explain the role of UNO in prevention of war and promotion of peace.
Distinguish between war and armed conflict. Comment on the role of UN charter in prevention of War.
Define and distinguish War and Armed conflicts. What are the legal effects of war?
Elaborate the concept of ‘War’. ‘Aggression’ and ‘Intervention’.
Explain the ‘War and Aggression’. What are the effects of outbreak of war?

Short Notes

Aggression.
War Crime.
UN charter.

I. Definition of war:-

‘War’ is defined by ‘Oppenheim’ as follows-

‘War’ is a contention between two or more states, through their armed forces, to overpower each other and impose such conditions of peace as the victor pleases.’[2].

Thus, we may say that ‘war’ is a contest by armed forces between two or more states. The ultimate purpose of each contestant or contestant group is to conquer the other state and impose its own terms of peace. However, states resort to war when their disputes are not settled peacefully.

II. ‘War’ and ‘Armed conflicts[3]’:-

There are two concepts regarding hostilities between states: ‘war’ and ‘armed conflict’. However, we take both concepts as war generally.

‘War’ in the strict sense is different from non-war armed conflicts. In international law, both these concepts are taken differently. The differences between the two are as follows-

1. Legality:-

The Briand-Kellogg Pact of 1928 declared war illegal. Therefore, no state would violate the Pact to attract International wrath. However, ‘armed conflict’ is not declared illegal. Thus, the hostilities between Korea from 1950 to 1953, the Indo-China conflict in 1962, the India -Pakistan conflict in present days, etc., are not wars but conflicts in the strict sense of International Law.

2. To Localise conflict[4] –

The difference helps localise the conflict and prevent it from taking the form of general war.

3. Apply Neutrality Regulations[5] –

The difference is necessary to apply neutrality regulations.

4. Justification[6]–

Though ‘war’ is not legal, ‘Armed conflict’ or ‘use of force’ is justified on some grounds like self-defence, a matter within the domestic jurisdiction of the State (like the removal of 370 Article from Kashmir), to get independence from the colony of any other country, recovery of lost territory etc.

III. Effects of the outbreak of war

War has the following effects-

1. Diplomatic relations are repudiated[7]–

Diplomatic relations between the belligerent states are repudiated due to war. Diplomatic agents were called back before the war.

2. Consular relations are also ruptured[8] –

Like diplomatic relations, consular relations also cease between belligerent states.

3. Some treaties are suspended –

The International Tribunal in North Atlantic Fisheries Arbitration case in 1910 has held that ‘a great number of treaties are not annulled by the outbreak of war but are suspended’. However, treaties are affected due to war. Certain treaties are terminated, some are suspended, and others remain unaffected. Thus, the bilateral treaties of a political nature, specifically of mutual assistance, are annulled. Treaties creating permanent rights, such as treaties recognising boundaries, recognition of independence, etc., are not annulled; however, some multilateral treaties are suspended during an outbreak of war. But they get revived on the cession of war.

4. Enemy Property –

Earlier, belligerent states could confiscate all public or private properties found on another’s territory. However, since the 19th Century, confiscation of private property is not justified in international law except in necessity.

5. Contract –

An outbreak of war affects executory contracts, but not executed if not against national interest. The executory contracts are those entered into by the belligerent states before the outbreak of war but have not been performed at all. In contrast, executed contracts entered into before the war and performed to a great extent, if not against national interest, get suspended till the cession of war.

6. Subjects of enemy state –

The outbreak of war affects the subjects of an enemy state who are on the territory of another belligerent state. At the outbreak of war, belligerent states get control of subjects of the enemy state on its soil, so they should not help their state in war by providing sensitive information, etc. The outbreak of war affects different kinds of subjects differently. Generally, non-combat subjects are allowed to withdraw from the state. However, combatants or likely combatants are not allowed to withdraw.

IV. Legal Regulation on War-

Earlier, war was waged to settle disputes between states. However, in the present day, international law disfavours waging war. No state is allowed to wage war, even for a just purpose.

Earlier conventions like the Hague Convention of 1907 and the ‘Brayan Treaties’ lay limitations on waging war.

1. Role of League of Nations-

By the League of Nations covenant, it was agreed that if a dispute arises between the League’s member States, they will submit the dispute to Arbitration, judicial Settlement, or Inquiry by the Council, and they will not resort to war at least three months after the award by the Arbitrator, judicial decision, or report of the Council.

A three-month period is called a “cooling period’ to avoid the war.

If any state resorted to war against any other state without following the procedure mentioned above, the war would be deemed to have been waged against the League of Nations member state, and the League would take necessary action against that state.

Similarly, many treaties, such as the Treaty of Mutual Assistance of 1923, the Geneva Protocol of 1924, The Locarno Treaty of 1925, the Sixth Pan-American Conference in 1928, General Treaty for Renunciation of War in 1928 is, also called ‘The Pact of Paris’ or the ‘Kellogg-Briand Pact’, Anti-War Treaty of Non-aggression and Conciliation (Rio-de-Janeiro), 1930, The Declaration of American Principles in 1938 etc. are entered into to prevent war amongst nations.

2. Role of United Nations–

Since its constitution, the United Nations Organization has tried to prevent wars. After World War I and II, the world realised the devastation and futility of war. In its preamble, the United Nations has prohibited the use of force by its member states against other member states. Articles 2, 39, 41 and 42 prohibit waging war by one state against the other.

Article – 2 Provides that ‘all member states shall refrain from the threat or use of force against any state’s territorial integrity or political independence. It further provides that if any dispute arises between member states, they shall settle it peacefully so that international peace, security and justice are not endangered.

Article 39 empowers the Security Council to decide whether there is a threat to peace, etc., and to suggest appropriate actions.

Articles 41 and 42 – Empower the Council to act appropriately for aggression, etc.

Short Notes-

1. WAR CRIMES[9]

I. Introduction –

‘War Crimes’ are the violations of certain rules of warfare. ‘Soldiers’ and ‘individuals’ who have committed ‘war crimes’ are punished by the victorious states from time to time.

The Charter of the International Military Tribunal, 1945,[10] enumerates the list of various war crimes. Such as-

Murder, ill-treatment or deportation as slave labour of a civilian population from occupied territory.
Murder, ill-treatment of prisoners of war or persons on seas.

The killing of hostages.

Plunder of public or private property.
Deliberate destruction of cities, towns and villages.
Causing devastation not justified by military necessity.

However, the list is not exhaustive. It may include any crime which is treated as brutal and inhuman. Brutal acts such as the use of poisonous gas, killing of wounded or surrendered enemy soldiers, disgraceful treatment of dead bodies, killing of hostages, ill-treatment of prisoners of war, destruction of public and private property, museums, hospitals, churches and schools, etc.

II. Who is Responsible for War Crimes?

Any person, soldier or individual who has committed a war crime is liable for punishment. Such an individual soldier is treated as a war criminal. Thus, to be punished as a war criminal, a person need not be a soldier.

As per Article 8 of the above-mentioned Charter, it is not a defence for a war Criminal that he has committed it in pursuance of an order of the Government or of the superior officer. However, though not in defence, the plea may be helpful in reducing the rigours of punishment.

III. Cases on War Crimes-

Unprecedented war Crimes took place after World War II from Germany and its allied forces. Common among them were atrocities, massacres, executions, killings of hostages, etc. These Crimes led Allied Governments[11] to establish a number of Tribunals to punish war Criminals. We will discuss some of them as follows –

1. Nuremberg Trial[12] –

The Victorious states of World War II, i.e. USA, France, USSR. UK (Who were popularly known as the Allies) established a Tribunal to try war Criminals of Germany and Japan by joint agreement in 1945. The Tribunal was to sit at Nuremberg in Germany. The Tribunal was also empowered with a Charter to try the war Criminals.

The Tribunal was to prosecute offenders for the following offences –

Crime against peace.
War in violation of International Treaties and agreements.

iii. Violations of the laws of the customs of war, such as Murder, ill-treatment of civilians, prisoners of war, etc.

Killing of hostages, plunder of public or private properties, destruction of cities, etc.

The Charter in Art. 7 and 8 laid down that the following cannot be the defences available for war crimes–

The accused was the Head of State or responsible official in the Government Department.
The defendant acted pursuant to the order of his government or a Superior. However, though these grounds do not free him from punishment, they may be considered to reduce the punishment.

Trial –

Twenty-two accused from Germany and Japan were tried in the trial, which ended in 1946. Judgment was passed on 1 October 1946.

The Defenses of the accused persons were

i) No international Criminal Law existed to punish these Crimes before the war.
ii) The acts were done with the superior’s orders.

The tribunal rejected these arguments and observed that-

i) Killing, maiming, torturing and humiliating innocent people are condemned and punished by the value judgments of all civilised societies. Therefore, even though the rules applied were not previously rules of positive international law, they were at least rules of positive ethics, accepted by civilised societies everywhere, to which the accused could properly be held guilty in the form of ethics.
ii) The Tribunal further annulled the second defence by observing that the orders of the government or superior officials do not relieve them of international responsibility.

Judgment of the Court: Out of twenty-two accused, twelve were given a death sentence, three were given life imprisonment, and four were given imprisonment for various terms. Three were acquitted of offences.

Criticism of the Judgment –

The Judgment of the Tribunal was criticized on many grounds, such as-

i) The Tribunal Sentenced the accused relying on law (Pact of Paris), which did not provide punishment.
ii) The tribunal was partial since it was constituted by victorious states.

iii) No war Criminals of victorious states were tried despite the use of Nuclear Bombs by the USA.

2. Tokyo Trial –

About the Trial – The Tokyo Tribunal was established to try war Criminals of Japan. The Tribunal was established in 1945 to try war Criminals of Japan on the same legal principles of the Nuremberg Trial. The Charter empowering Tribunal was passed in 1946. The Trial commenced on June 4, 1946, in Tokyo. Eleven Judges Tribunal headed by Sir. William Web of Australia was constituted. One of the judges, Dr Radha Binod Pal, was from India.

About Accused – The Trial was conducted against 28 accused. Two of them died during the trial, and one was discharged due to mental incompetency.

Charges against the accused –The charges against the accused were crimes against peace, Murder, crimes against humanity and committing conventional war Crimes.

Judgment –The Tribunal pronounced its judgment in November 1948. It awarded the death penalty to all except the two accused, and the two accused were awarded imprisonment for different offences.

3. Other War Crime Tribunals –

America and France had also established Municipal Tribunals to conduct trials against war criminals of the Second World War. Those were called ‘National War Crime Tribunals.

IV. United Nations on War Crimes –

General Assembly of the UN recognised the Charter of the Nuremberg Tribunal as a Principle of International Law by adopting a resolution, namely ‘Principles of International Co-operation in the Detention, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, on 11 December 1946.

As per the direction of the General Assembly, the International Law Commission drafted Principles on war criminals. However, the draft could not be affirmed and implemented. The applicability of the Code was left largely to National Courts to be applied in appropriate cases.

The Assembly formulated certain principles relating to persons guilty of war crimes in 1967 and 1973. The principles were adopted by the General Assembly through a resolution. However, the resolution had no binding force, so the implementation of the resolution was not binding on the states.

Thus, unless the binding resolution is adopted by a multilateral treaty, and the International Court is entrusted with Criminal Jurisdiction to try war criminals, the matter cannot be called to have truly internationalised.

2. Aggression-

1. Definition and Meaning of Aggression –

‘Aggression’ is a great threat to international peace and security. However, the term ‘Aggression’ has not long been defended. Finally, the General Assembly of the United Nations in 1974 adopted the definition of ‘Aggression’ suggested by the Special Committee specifically constituted to define ‘aggression’. As per Article 1 of the resolution –

‘Aggression’ is –

i) The use of armed force,
ii) By a State,

iii) Against the sovereignty, territorial integrity or political independence of another state or

iv) In any other manner inconsistent with the charter of the United Nations.

Art. 2 of the Charter of the United Nations prohibits aggression by any state. It provides that all states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purpose of the United Nations.

Thus, from the above provisions of the charter, it seems that the charter prohibits any State’s first use of armed force. The state that first uses armed force is treated as the aggressor. However, in controversy as to who first used armed force, the Security Council of the UN decides the matter.

2. Acts to be called ‘Aggression[13]’-

The definition of ‘aggression’ has generally laid down the circumstances which amount to aggression. However, Art. 3 further lays down some specific circumstances which amount to aggression, such as invasion or attack by armed forces on another state, bombardment and the use of weapons against the territory of another state, blockade, attack by armed forces on land, sea, air force or marine or Air fleets of another state, preparing for an act of aggression, sending of Armed bands, groups, irregulars etc. to carry on grave attacks in that state etc.

However, the list of the above-mentioned acts is not exhaustive. The charter under Art. 4 empowered the Security Council to determine any ‘other act’ of the State as aggression to maintain international peace and Security.

3. Consequences of Aggression –

Art. 5 recognises ‘Aggression’ as a crime against International peace. The Security Council determines the responsibility of such states. No territorial acquisition made by aggression is recognised as lawful by the International Community.

4. Exclusion form ‘Aggression’-

Some acts are excluded from being called aggression, viz.

i) The use of force, not with arms, such as coercion, coercive or economic measures, etc.
ii) The use of force, even if it is armed in defence, is not aggression because the first use of armed force is regarded as ‘Aggression’. However, the charter empowers the Security Council to determine the first aggressor.

3. INTERVENTION[14]

I. Definition of Intervention-

According to Oppenheim, “Intervention” is

i) A forcible or dictatorial interference,
ii) By a state,

iii) In the affairs of another state,

iv) Calculated to impose certain conduct or consequence,
v) on that other state.

Thus from the above definition, we may lay down the following elements of the intervention, viz.

i). Forcible or Dictatorial Interference[15] –

As we know, every state is sovereign; therefore, there is a corresponding duty upon other states not to interfere in the affairs of the state. However, when one state forcibly and dictatorially interferes in the affairs of another state, it is called an ‘intervention’. All types of interference are not prohibited, but forcible and dictatorial interference by one state in the affairs of another state is prohibited. Thus, granting or withholding recognition[16], cooperating in various forms, lodging protests for a wrongful act, severe diplomatic relations with another state, discontinuing trade and aid, etc., are not prohibited.

ii) In the affairs of another state[17] –

Forcible or dictatorial interference should be in the affairs of another State, which affects external independence or internal supremacy of the state. Intervention directly or indirectly affects such affairs of the state.

iii) With the object of imposing conditions[18] –

The object of intervention is to impose conditions upon another state which are conducive to imposing states.

However, intervention at the request of a state is not prohibited. It is an exception to intervene in another state at the request of that state. Thus, India Sent an Indian Peace-Keeping force to Sri Lanka in 1987, and Indian intervention in the Maldives in 1988 to protect the President, etc., on the request of those states were exceptions.

II. Kinds of Interventions–

There are follows kinds of Interventions –

1) Military Intervention –

Military intervention takes place through the use of armed forces. Such use may take the form of occupation of another state’s territory, military demonstration, naval blockade, seizure of assets of another state, arrest of its citizens, etc.

2) Subversive Intervention –

Subversive Intervention denotes instigating revolt or civil strife in another state through propaganda or other activities.

3) Diplomatic Intervention[19] –

Diplomatic Intervention may take place in the form of communication in a threatening tone, proposing to use military or other coercive measures.

III. Justifiable Intervention[20]–

Intervention can be made by individual States or by the Security Council of the United Nations. Intervention is always treated as unjustifiable; however, in the following circumstances, it is justified. In other words, we may say intervention in the following circumstances is an exception to the general rule that intervention is unlawful. Those justifications are as follows-

1. Self-Defense –

Though, as per the ‘Draft Declaration of Rights and Duties of States, non-intervention is one of the main duties of the State, it has carved some exceptions to it. Self-defence is a chief exception to it. Self-defence is the right of intervention in another state to defend oneself from actual or potential harm. Thus, if the action of one state puts another state in grave danger, that other state can intervene to avert the danger.

Traditional International law conferred on the states an unfettered right of self-preservation and protection from actual and threatened further attack. There was no International agency to check this unfettered right of self-defence.

However, after the UN charter came into force, states were prohibited from intervening in the affairs of another State. Thus, the traditional unfettered right is restricted. The state only gets the individual or collective right of self-defense if an actual armed attack occurs against it. The charter has also constituted the Security Council to take collective action against offending States.

2) To Protect its Citizens Abroad[21] –

Traditionally, one state could intervene in another state for the protection of the life and property of its citizens in that state. It was another aspect of right of self-defense. However, this right of self-defence or defence of citizens abroad is restricted by Art. 51 of U.N. Now, before the intervention; the intervening state has to prove that the necessity of intervention is ‘instant and overwhelming’. It further has to prove that, there was left no choice of means and moment of deliberation. In other words, the state has to show that the intervention was an absolute necessity and was not unreasonable or excessive.

However, such interventions are condemned at international law. We find number of examples where International community has condemned intervention, E.g. Intervention by England and France in Egypt in 1956 on Suez Canal dispute, Intervention by US in Grenada Island in 1983, Intervention by US in Panama in 1989.

3) Self – determination[22]–

If one state intervenes to protect the people of another state’s right to self-determination, the intervention is justified.

As per the resolution of the General Assembly (i.e., the definition of aggression), people who are forcibly deprived of the right of self-determination, freedom, and independence have the right to struggle to achieve them and to seek and receive support from other states. This right shows that people deprived of their right of self-determination can seek the help of other states, and if another state intervenes for the purpose, it would not be called intervention.

4) To enforce treaty rights[23] –

One state may intervene in the affairs of another if the other state violates the treaty rights of the former state. In other words, to protect the treaty rights, one state may intervene in the affairs of another state. However, this Traditional right is limited by the UN Charter.

5) On the Ground of Humanity[24] –

The intervention by one state into the affairs of another (Even Armed) to protect the human rights of the Nationals of that state is called ‘Humanity Intervention’. This right is given to protect the Nationals of that state from inhuman and cruel treatment by the Government of their own state and violation of International human rights.

On the same ground, India had intervened when Pakistan was killing innocent East Pakistanis, i.e. today’s Bangladeshis, in 1979.

However, this right is limited by International Law. Now, the treatment of a state’s own Nationals is a matter solely left within the domain of that state; no outside state has the right to intervene on this ground.

6) To Remove International Nuisance [25]–

If one state creates an International Nuisance, other states get the right of intervention to remove that Nuisance. Therefore, each state has the right to kill pirates found even in that state’s territory. Thus, Somali pirates are killed even by pursuit in their own State. Naxals were killed by the Indian Army following them on the borders of neighbouring states.

7. Collective Intervention under the UN Charter –

The UN Charter of 1949 makes provision for collective action against a state, which may or may not be a member of the United Nations. The Charter also provides for avoiding unwarranted intervention into the affairs of another state and taking collective action under the umbrella of the United Nations.

The Security Council and General Assembly of the U.N. are empowered to intervene into the affairs of another state if there exists a threat to peace, breach of the peace, or act of aggression by that state. After considering the above threats, the Security Council may recommend to the General Assembly to take action against that state under Art. 41 or Art. 42 of the Charter.

Under Art. 41, actions like a complete or partial interruption of economic relations and of rail, sea, air, postal, radio, telegraphic or diplomatic relations can be taken. As per Art. 41, the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions. It may call upon the members of the United Nations to apply such measures. These measures may include complete or partial interruption of economic relations and rail, sea, air, postal, radio, telegraphic and other means of communications and the severance of diplomatic relations.

As per Art. 42, if the above measures are inadequate, the Security Council may take such actions by Air, Sea or Land forces as necessary to maintain or restore international peace and security. Such actions may include demonstrations, blockades and other operations by air, sea or land forces of members of the United Nations.

*****

[1] युध्द व सषस्त्र संघर्ष

[2] ‘युध्द्’ म्हणजे दोन किंवा जास्ती राश्ट्राच्या सषस्त्र दलातील संघर्शे, कि जो एक दुस¹यावर मात करण्याच्या उद्देषाने व जिंकना¹या राश्ट्राच्या अटीवरती षांतता प्र्रस्थापीत करण्यासाठी केलेला असतो

[3] युध्द व सषस्त्र संघर्शे

[4] वादाचे स्थनिकीकरण

[5] तटस्थता नियम लागू करणे साठी

[6] कर्यवाहीचे समर्थन

[7] राजकीय संबंधांची समाप्ती

[8] दूतावासातील संबंधांची समाप्ती

[9] युध्द गुन्हेगार

[10] The Charter Annexed to the agreement for the prosecution and punishment of the major war criminals of the European Axis 1945.

[11] मित्र राष्ट्रे

[12] नुरेमबर्ग चा खटला

[13] अशा कृती की ज्यांना हमला म्हणुन स्ंाबोधले जाईल

[14] हस्तक्षेप

[15] जबरदस्तीने हस्तक्षेप

[16] राष्ट्राचा दर्जेा देने संबंधी सहमती देने अथवा राखुन ठेवने

[17] दुसरे राष्ट्राचे कामकाजात

[18] दुसरे राष्ट्रावर अटी व षर्थि लादण्याचे उद्देषाने

[19] राजनैतीक हस्तक्षेप

[20] न्याय किंवा समर्थनीय हस्तक्षेप

[21] दुस¹या देषात असना¹या आपलया नागरीकांचे संरक्षण

[22] शासन ठरवीन्याचा / स्वनिर्णयाचा अधिकार

[23] कराराचे अंम्मलबजावनीसाठी हस्तक्षेप

[24] मनुश्यत्व रक्षणासाठी हस्तक्षेप

[25] अंतरराष्ट्रीय उपद्रव दुर करण्यासाठी