On War

As the invasion of Ukraine was starting, the Russian Ambassador to the United Nationals responded to the Ukrainian Special Envoy “Don’t call this a war. This is called a ‘special military operation in Donbass.’” Other Russian Ambassadors reiterated the statement beyond the Security Council debate. Reports indicate that the media in Russia were ordered not to use certain words in their reporting. These words were “attack,” “invasion,” and “war.” At the same time some warned that negative commentary in Russia would be seen as treason, and it has been suggested that some government officials fear that their resignation would be considered treason. Whether or not the Russian Government considers itself to be at war, wartime thinking is omnipresent.

The use of the word war can have significant effects. Not only might it embolden some to think that they are entitled to do anything necessary to win the war, but the word war also rightly strikes terror in the minds of those who know they will be the victims of bombardment, shooting, and unconscionable violence. This brief post asks whether there are any legal implications behind the designation “war” in this conflict and beyond. A fuller answer can be found elsewhere.

Of immediate significance is the question of whether the obligations of neutrality can only be triggered by a formal Declaration of War. As explained in another post in this series the law is uncertain. Those States that are supplying weapons to the Ukrainian Government have not necessarily explained how their actions can be considered to be in conformity with the law of neutrality in time of war. One explanation could be that in the absence of a Declaration of War or a Declaration of Neutrality, the international law obligations of neutrality do not apply. It was often suggested that the absence of a State of War between China and Japan in the 1930s meant the United States could send arms to China without violating the law on neutrality.

A second explanation could be that sending arms is justified as a reprisal to the act of aggression. This was the argument of the United States to justify its arming of the United Kingdom at the start of the Second World War before the United States entered the War. Today such arming of a belligerent might be seen as “collective countermeasures” in response to “severe violations of collective obligations.”

A third explanation would be that States now consider they have an obligation to “cooperate to bring to an end through lawful means any serious breach” of a peremptory norm such as the prohibition of aggression. This is coupled with their obligation not to “render aid or assistance in maintaining that situation.” If international law demands that States cooperate to bring to an end a war of aggression and deny help to the aggressor then it cannot at the same time demand respect for the older laws on neutrality in wartime.

Lastly, the argument could be made that the apparent breach of obligations concerning neutrality are covered by collective self-defence as suggested by Article 21 of the International Law Commission’s Articles on State Responsibility.

A connected issue relates to the seizure and confiscation of contraband of war and the operation of prize law. If the law of neutrality applies then contraband on neutral vessels is subject to seizure. Under the traditional law of war, explained in manuals such as the U.S. Law of War Manual, a belligerent State may capture neutral merchant vessels and civil aircraft if they are carrying contraband (goods susceptible to use in armed conflict). In addition, it is said that “Enemy merchant vessels may be captured wherever located beyond neutral territory. §13.5.1. Applied to the present conflict such rules would mean that Russia could capture all neutral vessels carrying arms to Ukraine, and all Ukrainian merchant vessels outside neutral territory. Russia could then have a Russian prize court adjudicate them as good prize and acquire property rights in rem over these vessels. But it seems incongruous that the new international law that outlaws aggression would yield to an older rule which rewards a party that has chosen to go to war.

I would suggest that it is time to agree that, even if in the past it was accepted that States could keep what they win in war, including territory and booty of war, we should no longer accept that there are international law rules that authorize a belligerent State to acquire neutral or enemy property (public and private). It is not enough to point out that this is customary or that this is simply how wars were fought in the past. There is no justifiable reason to cling to ideas from the era of naval economic warfare. It seems unconscionable that either Russia or Ukraine would have the right to keep whatever they can seize from the other side and claim that they are entitled to it under the laws of war.

Do these laws of war concerning the seizure of ships on the high seas apply today? For some these antiquated laws of war are applicable only in time of a formally Declared War, for others they would also apply to an inter-State conflict of a certain duration and intensity. I have suggested elsewhere an alternative approach. I would argue that these rules should no longer apply in an era in which going to war is illegal and considered both an act of aggression and as constituting the crime of aggression. It makes no sense that, where a State has embarked on a war of aggression, it can seize enemy merchant ships, along with the enemy goods they are carrying, and keep that property once the war is over (whether War is Declared or not).

A word on the “necessities of war.” The phrase is still sometimes invoked as if it excuses all kinds of crimes and abuses. It is time to completely entomb the idea of “Kriegsräson geht vor Kriegsmanier” sometimes translated as the “necessities of war take precedence over the rules of war.” It should be beyond question that military necessity is only relevant as an excuse for avoiding a humanitarian law commitment where the treaty provision includes such an explicit exception. For example Article 8 of Geneva Convention I on the wounded explicitly accepts that access by certain representatives can be denied on grounds of “imperative military necessities.” But the vast majority of international humanitarian law provisions allow for no such exception. In the absence of a specific exception one cannot appeal to military necessity or the necessities of war to get out of international obligations. International humanitarian law knows no general exception of military necessity or necessities of war.

There is obviously no such exception to the prohibition on torture either in international humanitarian law or human rights law. The Convention Against Torture reiterates that there is nothing special about wartime: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Let us continue by looking at human rights law and pick a few circumstances where war is particularly pertinent. Certain human rights treaties abolish the death penalty but allow for exceptions in time of war. The expression “time of war” in this context means a time of Declared War, or a State of War officially proclaimed.

A separate issue arises under the International Covenant on Civil and Political Rights which demands that “propaganda for war” be prohibited by law. The UN Human Rights Committee has explained that this means that promoting aggression is to be prohibited, while rallying support for sovereign self-defence in the face of an aggressive war would not be considered propaganda for war.

The same treaty protects against the arbitrary deprivation of life. If a life is lost as a result of an act of aggression, an illegal war, then all those killed have had their human rights violated and the State is responsible under international law. This rule complements the international humanitarian law rules that protect civilians and combatants who have laid down their arms. It covers all those combatants and civilians killed whatever threat they posed. This should change how we see the casualties of war. We should care about the soldiers killed by the aggressor in wartime; their human rights have been violated. We should care about the civilians killed as “proportionate collateral damage” in an attack on a military objective; these are human rights violations. The killings are arbitrary deprivations of the right to life because they are committed as part of a violation of the UN Charter in an aggressive war. The UN Human Rights Committee confirmed this in 2019 when it stated, in unambiguous terms:

States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 [on the right to life] of the Covenant. (para 70).

The idea that disputes should be settled by resorting to war is dead. The old idea that States should be entitled to acquire the territory seized in war is also finished. As stated by consensus by the General Assembly in 1970, “The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.” No territory gained by any side in the Russia-Ukraine conflict can be legally acquired by either State.

The time has come to consign a number of other customs to the legal dustbin. It should no longer be possible for States to seize anyone else’s property as prize, or booty of war. Going to war cannot confer international law rights to other peoples’ things and territory. And it is time to count everyone’s lives in war. Each victim of aggression counts, combatants, civilians and yes even civilians taking up arms to save their lives and the lives of others. An aggressive war forces us to evaluate some of our assumptions. Ideas about belligerent equality and booty of war are no longer appropriate. The laws of war may never look the same again.

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Andrew Clapham is Professor of International Law at the Graduate Institute of International and Development Studies in Geneva.