written report war

8/13/2019 Written Report War

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CHAPTER 18

INTRODUCTION

The art of war is of vital importance to the state. It is a matter of life and

death, a road either to safety or to ruin. Hence under no circumstances can

it be neglected. (Sun Tzu, The Art of War)

WAR

War is an armed contest between states. (Grotius)

CONCEPTS OF WAR ACCORDING TO WRITERS OF

INTERNATIONAL LAW

(1) It is a specific action.

War is an armed contention between the public forces of states or other

belligerent communities, implying the employment of violence among the

parties as a means of enforcing their respective demands upon each other.

(2) It is a specific status.

War may exist even without the use of force, as when one state formally

refuses to be governed by the laws of peace in its relations with another

state even if actual hostilities have not taken place between them.

THE PURPOSE OF WAR

The purpose is to overpower the opponent and to impose upon him the

conditions of peace. (Kelsen)

INTERNATIONAL ATTEMPTS TO OUTLAWRY WAR

(1) The Covenant of the League of Nations

Restricted the right to wage war by laying down procedural checks.

(2) The Kellog-Briand Pact(The Pact of Paris or The General Treaty for

the Renunciation of War, 1928)

Forbade war as an instrumentality of national policy, but it did not abolish

it as such. War was thus implicitly allowed for the following purposes:

(a) self-defense;

(b) the enforcement of international (not national) obligations;


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(c) settlement of conflict between non-members of the Pact; and

between members on the one hand and non members of the

Pact on the other hand;

(d) the castigation of a Member of the Pact which violates its

provisions.

(3) The Charter of the UN prohibits war under Art. 2, par.4,

without however, using the word war.

All members 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.

THE STATE OF WAR DISTINGUISHED FROM ACT OF WAR

(1) State of War

(a) Express- when war has been declared.

(b) Implicit- by commission of forcible acts with animo belligerendi.

(2) Act of War

The mere employment of force, for the purpose of reprisal, without

the intent to create a war, may be deemed an act of war. An act of war

may generally cause a state of war.

CLASSIFICATIONS OF WARS

(1) According to who are the contending belligerents:

(a) international war (between states of the same civilization);

(b) imperial war (between states of different civilizations);

(c) civil war ( between factions in the same state).

(2) According to object:

(a) absolute war (the purpose is the extermination or the

unconditional surrender of the enemy);

(b) limited war (fought to gain reparation of a particular injury; to

gain recognition of a particular claim or to acquire a particular

territory or advantage).

(3) According to where the initiative began:

(a) war of aggression;

(b) war of self-defense.


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(4)According to the number of combatants or nations involved:

(a) individual war (between two states);

(b) regional war ( confined to a geographical region)

(c) world war (where almost all countries are ranged on either of two

sides).

(5) According to the nature and composition of the combatants:

(a) guerilla war or unconventional war (irregular armed forces);

(b) regular war (regular armed forces);

(c) total war (embraces everybody including women and children).

(6) According to the area of operations:

(a) land warfare;

(b) maritime or fluvial warfare;

(c) aerial warfare.

LAWS OF WAR

(1) Declaration of Paris of 1856, concerning warfare at sea.

(2) The Hague Convention of 1899, concerning the use of expanding bullets

and asphyxiating gases.

(3) The Hague Convention of 1907, concerning among others, the opening

of hostilities; the laws and customs of warfare on land and the conversion

of merchant ships into warships.(4) The Geneva Convention of 1925, concerning the use of asphyxiating ,

poisonous and other gases and of bacteriological methods of warfare.

(5) The Geneva Convention of 1929, concerning the treatment of the sick

and wounded and prisoners of war.

(6) The Declaration of London of 1936, concerning the use of submarines

against merchant vessels.

(7) The Geneva Convention of 1949, concerning the amelioration of the sick

and wounded on land; the amelioration of the sick and wounded and of

shipwrecked members of the armed forces at sea; the treatment of

prisoners of war; and the protection of civilian persons in war.

(8) The Nuclear Non Proliferation Treaty


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COMMON ACCEPTED SANCTIONS OF THE LAWS OF WAR

(1) Protest lodged by one belligerent, usually accompanied or followed by

an appeal to world opinion against the unlawful acts of warfare committed

by the other belligerent;

(2) Reparation for damages caused by the defeated belligerent; and

(3) Punishment of war criminals.

COMMENCEMENT OF WAR

(1) A reasoned declaration of war;

(2) A rejection of an ultimatum; or

(3) A commission of an act of force regarded by at least one of the

belligerents as an act of war.

EFFECTS OF THE OUTBREAK OF WAR

(1) The laws of peace cease to regulate the relations of the belligerents and

are superseded by the laws of war. Third states are governed by the laws of

neutrality in their dealings with the belligerents.

(2) Diplomatic and consular relations between the belligerents are

terminated.

(3) Treaties of political nature are automatically cancelled, but those

precisely intended to operate during war are activated.

(4) Individuals are impressed with enemy character.(a) Nationality Test

If they are nationals of the other belligerent, wherever they may be.

(b) Domiciliary Test

If they are domiciled aliens in the territory of the other belligerent, on

the assumption that they contribute to its economic resources.

(c)Activities Test

If, being foreigners, they nevertheless participate in the hostilities on

favor of the other belligerent.

Corporations and other juridical persons are regarded as enemies if a

majority or a substantial portion of their capital stock is in the hands

of enemy nationals or if they have incorporated in the territory or

under the laws of the belligerent.


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(5) Enemy public property found in the territory of the other belligerent at

the outbreak of hostilities is, with certain exceptions, subject to

confiscation. Enemy private property may be sequestered, subject to return,

reimbursement or other disposition after the war in accordance with the

treaty of peace.

PARTICIPANTS IN THE WAR

The Combatants

(a) Non-privileged combatants (i.e., spies)

(b) Privileged combatants

(b.1) the regular armed forces

(b.2) the irregular forces such as francs tireurs or the guerillas

provided, that:

First, they are under a responsible commander;

Second, they wear a fixed, distinctive emblem; recognizable at a

distance;

Third, they carry their arms openly;

Fourth, they conduct their operations in accordance with laws

and customs of war.

(b.3) levees en masse (spontaneous uprising of the populace)

(b.4) the officers and crew of merchant vessels who forcibly

resist attack.

SOME RIGHTS AND PRIVILEGES OF PRISONERS OF WAR

(1)They must be treated humanely.

(2) They may not be forced to reveal military data except the name, rank,

serial number, army and regimental number and date of birth; they may

not be compelled to work for military services.

(3) All personal belongings except arms, horses, and military papers remain

their property; they are entitled in certain cases to be compensated for work

done.

(4)They may be interned in a town, fortress, camp, or any other locality.

(5) After the conclusion of peace, their speedy repatriation must be

accomplished as soon as practicable.


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THE RULES OF WARFARE: THREE BASIC PRINCIPLES

(1) The Principle of Military Necessity

The belligerents may, subject to the other two principles, employ any

amount and kind of force to compel the complete submission of the enemywith the least possible loss of lives, time and money.

(2) The Principle of Humanity

This principle prohibits the use of any measure that is not absolutely

necessary for the purposes of the war, such as the poisoning of wells and

weapons. It includes the rule that a combatant who surrenders may not be

killed and the agreements relating to the treatment of prisoners of war.

(3) The Principle of Chivalry

In general, ruses and stratagem of any kind are permitted, except for the

following:

(a) To use treacherous methods.

(b) To make improper use of a flag of truce.

(c) To bombard undefended places.

(d) To bomb undefended or open cities.

(e) To employ espionage.

KINDS OF WARFARE

(1) Land warfare

(2) Naval warfare

(3) Aerial warfare

BELLIGERENT OCCUPATION AS DISTINGUISHED FROM

MILITARY OCCUPATION

(1) Belligerent Occupation

The temporary military occupation of the enemys territory DURING the

war; the rights and obligations of the belligerent occupants are governed

by the principles of international law.

(2) Military Occupation

Takes place when the victor takes over the enemy territory AFTER the

conclusion of the war; the rights and obligations of the military occupants

are generally premised on the matter.


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OBJECTIVES OF BELLIGERENT OCCUPATION

The Law of Nations acknowledges that the belligerent occupant has for its

objective the security, support, efficiency, and success of its own forces in a

hostile land inhabited by the nationals of the enemy.

The Theory of Suspended Sovereignty

American courts hold that during the occupation, the sovereignty of the de

jure government or the government exile is suspended.

However, the Philippine Supreme Court, in the case of Laurel v. Misa stated

that it was not the sovereignty of the legitimate government that was

suspended but merely the ability to exercise that sovereignty.

RIGHTS OF THE BELLIGERENT OCCUPANT

(1) To re-establish or continue the process of orderly government.

(2) To take measures for the protection of the inhabitants.

(3) To requisition goods and services in non-military projects.

(4) To demand taxes and contributions to finance military and local

administration needs.

(5) To issue legal currency.

(6) To use enemy property whether public or private.

POSTLIMINIUM

The right of postliminy, or postliminium is that in which persons or

things taken by the enemy are restored to the former state on coming

actually into the power of the nation to which they belong. (Vattel).

Upon the end of a belligerent occupation, the laws of the re-established

government are revived and all acts taken by the belligerent occupant,

which it could not legally do under the law of nations, as well as acts of a

political complexion, are invalidated.

NONHOSTILE INTERCOURSE BETWEEN BELLIGERENTS

(1) Passport or passis a general permission by the competent authorities

which enables a person to travel within belligerent authority.

(2) Safe-conduct or permitis a pass given to an enemy subject or to an

enemy vessel allowing passage between defined points.


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(3) Safeguardis a kind of protection afforded to travelling persons or to

property by the commander of a place, within the region of his command.

(4) License to tradeis a permission given by the competent authority to

individuals to carry on trade even though there is a state of war.

(5) Cartels are agreements between belligerents for the purpose of

regulating intercourse not otherwise permitted in time of war; usually, the

subject matter deals with the exchange or repatriation of prisoners of war.

(6) A flag of truce is a white flag carried by an individual authorized by

one belligerent to enter into communications with the other.

SUSPENSION OF HOSTILITIES

(1) A suspension of arms is agreement between local commanders for a

brief suspension of hostilities.

(2) An armistice is the suspension of all military operations in a certain area

(local) or in the entire region of the war (general).

Armistice and suspension of arms distinguished.

(a) The purpose of armistice is political while that of suspension of arms is

military.

(b) The former may be concluded only by the commanders-in-chief of the

belligerent governments while the latter may be agreed upon by the local

commanders.

(c) The former is usually in writing while the latter may be oral.

(3) A ceasefire is an unconditional stoppage of hostilities by order of an

international body.

(4) A truce is a conditional cease-fire for political purposes.

(5) A capitulation is the surrender of military forces, places or districts in

accordance with the rules of military honor.

TERMINATION OF WAR

(1) Cessation of hostilities without any formal treaty.

(2) By a formal treaty of peace.

(3) By the complete submission and subjugation of the belligerents

followed almost immediately by annexation.

(4) By unilateral declaration or proclamation.


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AFTERMATH OF WAR

(1) The implied judgment, right or wrong, that the vanquished belligerent is

the guilty party in the dispute that caused the hostilities.

(2) The treaty of peace imposed by the victor upon the defeated state isregarded as a punishment.

(3) The sentence rendered will impute responsibility upon the defeated

state and compel it to pay reparations for injuries and losses suffered by the

victorious state.

PRINCIPLES OF THE NUREMBURG CHARTER AND

JUDGMENT

The following are set out as crimes under international law:

(a) Crimes against peace

(i) Planning, preparation, initiation or waging of a war of aggression

or a war in violation of international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the

accomplishment of any of the acts mentioned under (i).

(b) War crimes

Violations of the law or customs of war which include, but are not

limited to, murder, ill-treatment or deportation to slave-labour or for any

other purpose of civilian population of or in occupied territory, murder of

or ill-treatment of prisoners of war, of persons on the seas, killing of

hostages, plunder of public or private property, wanton destruction of

cities, towns or villages, or devastation not justified by military necessity.

(c) Crimes against humanity

Murder, extermination, enslavement, deportation and other inhuman

acts done against any civilian population, or persecution on political, racial

or religious grounds, when such acts are done or in connection with any

crime against peace or any war crime.

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