«TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 Drones and the Boundaries of the Battlefield MICHAEL W. LEWIS SUMMARY INTRODUCTION I. DRONE USE ...»
48. Christopher Greenwood, Scope of Application of Humanitarian Law, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 39, 53 (Dieter Fleck ed., 1st ed. 1995).
50. Christopher Greenwood, Self-Defence and the Conduct of International Armed Conflict, in
INTERNATIONAL LAW AT A TIME OF PERPLEXITY: ESSAYS IN HONOUR OF SHABTAI ROSENNE 273, 277(Yoram Dinstein & Mala Tabory eds., 1989) [hereinafter Greenwood, Self-Defence]. While the Royal Navy voluntarily created a naval exclusionary zone outside of which Argentine warships would not be subject to attack, IHL did not require them to do so.
51. Mary Ellen O’Connell, The Choice of Law Against Terrorism, 4 J. NAT’L SECURITY L. & POL’Y 343, 361 (2010).
52. Hanson W. Baldwin, M’Arthur Success in Korea Analyzed, N.Y. TIMES, Oct. 30, 1950, at L3;
Michael Hickey, The Korean War: An Overview, BBC NEWS, http://www.bbc.co.uk/history/worldwars/ coldwar/korea_hickey_01.shtml (last updated Mar. 21, 2011).
53. See Michael W. Lewis, The Law of Aerial Bombardment in the 1991 Gulf War, 97 AM. J. INT’L L.
481, 481–96 (2003) (discussing the Coalition air campaign against Iraq).
54. See DEP’T OF DEFENSE, CONDUCT OF THE PERSIAN GULF WAR: FINAL REPORT TO CONGRESS 133–34 (Apr. 1992) (describing attacks in northern Iraq during the Persian Gulf War, including airstrikes in Mosul against nuclear facilities); Map of Troop Movements from Desert Storm, U.S. ARMY CENTER OF MILITARY HISTORY, http://www.history.army.mil/reference/DS.jpg (depicting the location of forces and geography of the region).
55. See Map of Troop Movements from Desert Storm, supra note 54 (depicting location of attacks).
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facilities near Tripoli, more than 400 miles from the fighting that was occurring between the Libyan Army and rebel forces near Benghazi.56 These examples of state practice during U.N.-authorized military operations make it clear that the use of combat force far from the location of the fighting is not only considered to be legal, but is also regarded as a routine part of any international armed conflict. Any claim that shooting down a military aircraft flown by military pilots carrying a senior military officer would be considered illegal under international law today because the fighter aircraft involved in the mission had to fly approximately 450 miles from its base to complete the mission is wholly without support.57
C. Neutrality Law: The Graf Spee Incident
This is not to say that there are no geographic limitations on the scope of international armed conflicts. The law of neutrality clearly prohibits the use of armed force by participants in an armed conflict on the territory of neutral states.58 Neutrality law applies to both land and naval warfare,59 and the AMW Manual includes several articles applying neutrality law to aircraft.60 Neutrality law imposes restrictions on both belligerents and neutrals.
Belligerents are enjoined from sending their armed forces across neutral territory, from recruiting combatants on the territory of a neutral, or from setting up communications stations or military installations on neutral territory.61 Belligerent warships are not permitted to stay in neutral ports for more than twenty-four hours and may only prolong their stay because of damage or bad weather.62 Belligerents are also “prohibited in neutral territory... [from using] such territory as a sanctuary.”63 Conversely, a neutral power is prohibited from allowing any of these acts by a belligerent on its territory and is required to intern any members of a belligerent armed force found on its territory.64
56. See Devin Dwyer & Luis Martinez, U.S. Tomahawk Cruise Missiles Hit Targets in Libya, ABC NEWS (Mar. 19, 2011), http://abcnews.go.com/International/libya-international-military-coalition-launchassault-gadhafi-forces/story?id=13174246#.TzYKsbHeAz5 (describing the initial coalition attacks on the Qaddafi regime, which focused primarily on Tripoli and other targets in the west of the country, far from the “rebel stronghold of Benghazi”).
57. See supra note 51 and accompanying text. Bougainville was approximately 450 miles from the U.S. base at Henderson Field, where the fighters that shot down Yamamoto’s plane were launched.
Daniel Lagan, Operation Vengeance, MILITARYHISTORY.ORG (July 2, 2009), http://www.militaryhistory.
58. See Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land arts. 1–5, Oct. 18, 1907, 36 Stat. 2310 [hereinafter Hague V] (establishing the inviolate nature of neutral territory for belligerents).
59. See generally id. (detailing neutrality rights and duties in land war); Hague Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 Stat. 2415 [hereinafter Hague XIII] (detailing neutrality rights and duties in naval war).
60. AMW MANUAL, supra note 1, § X (Neutrality).
61. Hague V, supra note 58, arts. 2–4.
62. Hague XIII, supra note 59, arts. 12, 14.
63. AMW MANUAL, supra note 1, r. 167(a).
64. Hague V, supra note 58, arts. 5, 11; Hague XIII, supra note 59, art. 24; AMW MANUAL, supra note 1, r. 168(a), 170(c).
TEXAS INTERNATIONAL LAW JOURNAL Volume 47, Issue 2 2012] DRONES AND THE BOUNDARIES OF THE BATTLEFIELD 305 An illustration of both the use of armed force far from the “front lines” of an armed conflict and the application of neutrality law in an international armed conflict can be found in the Graf Spee incident that occurred at the beginning of the Second World War. The Admiral Graf Spee was a German Panzerschiff65 that engaged in commerce raiding throughout the South Atlantic during the autumn of 1939, more than 6,000 miles from the British and German coasts.66 On the morning of December 13, the Graf Spee encountered three British cruisers, Exeter, Ajax, and Achilles.67 After an exchange of gunfire that lasted a little more than an hour, the Graf Spee turned and headed for the neutral port of Montevideo in Uruguay.68 She reached Montevideo on the evening of December 13 and a diplomatic battle over the duties of Uruguayan neutrality ensued.69 The British and French ministers demanded that the German warship be required to leave port quickly or be interned for the balance of the war in accordance with articles 12, 14, and 24 of the Hague Convention Concerning the Rights and Duties of Neutral Powers in Naval War.70 The German captain, Langsdorff, requested that the Graf Spee be allowed to stay for fourteen days in order to complete the necessary repairs to make the ship seaworthy.71 During these intense and high-stakes negotiations the Uruguayan Minister of Foreign Affairs, Dr. Guani, insisted that Uruguay would uphold its responsibilities as a neutral nation and bridled at what he perceived to be threats from the French and British diplomats if Uruguay did not do so.72 Uruguayan technicians examined the warship and determined that it would require seventy-two hours for her to be made seaworthy and Langsdorff was informed that he would be required to depart Montevideo on December 17.73 He then received instructions from Berlin ordering him to either attempt a breakout or to scuttle the ship and stressing that internment in Uruguay be avoided at all costs.74 Langsdorff chose to scuttle the ship on the 17th and he shot himself shortly thereafter.75 His crew was interned for the balance of the war.76
65. See RICHARD WOODMAN, THE BATTLE OF THE RIVER PLATE: A GRAND DELUSION 4–7 (Christopher Summerville ed., 2008) (describing the construction of the Panzerschiffs, or “Armored Ships,” which were derisively referred to as “pocket battleships” by the Royal Navy. Constructed by the German Navy during the interwar years in order to remain in compliance with the provisions of the Treaty of Versailles, they were smaller and carried lighter armaments than the battleships of the time.).
66. Id. at 12–54.
67. Id. at 88–90.
68. Id. at 92–114.
69. Id. at 109–14.
70. See SIR EUGEN MILLINGTON-DRAKE, THE DRAMA OF THE GRAF SPEE AND THE BATTLE OFTHE PLATE: A DOCUMENTARY ANTHOLOGY 1914–1964, at 288–95 (1964) (explaining that the initial British insistence that the Graf Spee be forced to leave immediately changed when the British cruiser commander urged a delay to allow the cruiser Cumberland to join his force awaiting the Graf Spee’s departure).
71. See id. (noting that this would have allowed German submarines enough time to get to the River Plate and help the Graf Spee break out through the group of British warships gathering at the mouth of the river).
72. Id. at 288–90.
73. Id. at 305–07, 325.
74. Id. at 321–23.
75. WOODMAN, supra note 65, at 135–40.
76. Id. at 140–41.
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This is the manner in which geography limits the scope of IHL during international armed conflicts. As long as Uruguay maintained its neutrality, IHRL governed the conduct of all parties within Uruguay unless or until Uruguay ended its neutrality and chose to support one side or the other. The British Navy was not permitted to fire upon the damaged Graf Spee in Uruguayan waters, but the German warship was not permitted to use the Uruguayan port as a sanctuary. As a sovereign nation Uruguay could have chosen to permit the British Navy to sink the Graf Spee within Uruguayan waters, but that would have been considered a belligerent act against Germany, and Uruguay would have forfeited her status as a neutral. IHL would have applied on Uruguay’s territory from the time she changed her status to that of British ally and the Graf Spee could have opened fire on Uruguayan naval vessels or port facilities once Uruguay declared herself to be a British ally. Likewise, Uruguay could have chosen to offer the Graf Spee sanctuary in the port of Montevideo, but this would have been considered a belligerent act against the British, making Uruguay a German ally. Had Uruguay made this choice IHL would have applied on Uruguayan territory and the British Navy could have fired upon the Graf Spee or upon Uruguayan forces from the moment Uruguay declared herself to be a German ally. Instead, Uruguay chose to uphold her responsibilities as a neutral nation by neither forcing the Graf Spee to depart before she could be made seaworthy, nor allowing her to improperly use the neutral port of Montevideo as a sanctuary until help could arrive. It is through neutrality law that geography limits the scope of IHL during international armed conflicts.
If the absence or existence of Tadic factors within a given geography determines the scope of IHL during internal armed conflicts and neutrality law determines IHL’s scope during international armed conflicts, how should the boundaries of the battlefield be determined in transnational armed conflicts?
D. Transnational Armed Conflicts
For over half a century the choice for classifying armed conflicts has been binary. Armed conflicts were categorized either as international armed conflicts or non-international armed conflicts. International armed conflicts triggered the application of IHL through Common Article 2 of the Geneva Conventions, which applied the entire Conventions to such conflicts.77 Such conflicts were those occurring between “two or more of the High Contracting Parties.”78 Noninternational armed conflicts triggered the application of IHL through Common Article 3 of the Geneva Conventions, which itself set minimum standards of conduct for conflicts taking place on “the territory of one of the High Contracting Parties” (emphasis added).79 As these two choices were defined, however, they were not collectively exhaustive, potentially leaving room for a third choice that IHL left unaddressed.
The scope of international armed conflicts was fairly straightforward, being any
77. Geneva I-IV, supra note 46, art. 2.
78. Id. Every nation on earth is now a party to the Geneva Conventions. INT’L COMM. RED CROSS
[ICRC], ANNUAL REPORT 2010: STATES PARTY TO THE GENEVA CONVENTIONS AND THEIRADDITIONAL PROTOCOLS 547 (2010), http://www.icrc.org/eng/assets/files/annual-report/current/icrcannual-report-2010-states-party.pdf. Hence, the term “High Contracting Party” is now synonymous with “state” or “nation.”
79. Geneva I-IV, supra note 46, art. 3.