5.2 WAR versus the unlawful use of ARMED FORCE

5.2.1   What is ‘war’?

“In any case, it is universally recognised that war is a contention, i.e. a violent struggle through the application of armed force by one state against another. Unilateral acts of force performed by one State against another without a previous declaration of war may be a cause of the outbreak of war, but are not war in themselves, so long as they are not answered by similar hostile acts by the other side, or at least by a declaration of the other side that it considers them to be acts of war. ... even acts of force illegally perpetrated by one State against another - for instance, occupation of a part of its territory - are not acts of war so long as they are not met by acts of force from the other side, or at least by a declaration that it considers them to be acts of war.”

“International Law : A Treatise” Oppenheim (Ed. Hersch Lauterpacht)

p.202 Para 54

(43)     Whilst the term ‘war’ in pre-1945 international law was not always interpreted restrictively, in the sense that it could and did incorporate all manner of armed hostile contentions, occurring between opposing States, whether limited to only a relatively minor area of disputed territory, or as respects only minor and transient skirmishes or as regards conflicts generally limited to naval engagement on the high seas etc.; nevertheless, there were several factors which would have the effect of denying a conflict, no manner how violent or extensive, of its legal character of a ‘war’. These were not limited to, but included:

(i) Where the conflict was not joined or carried on, by more than at least two parties thereto, with the active concurrence and involvement of the government of each state, even though the whole of a nation’s population may support it (4 Co. Inst.152; 1 Bl Com (14th Edn.) 252@257). So that rebellions, civil revolt and mercenary uprisings were excluded, as not being international in character.

(ii) Equally, where the territory, occupied by an act of armed state force, was under the effective control of a legally subservient government, such as in the cases of a colony, dominion territory, federal or overseas possession, etc. of the occupying State, even though the occupation was opposed by all or many of the population and even though opposed by the suzerain power itself.

(iii) Where an act of aggression by the forces of one state against the territory of another none the less did not provoke or result in either a hostile armed reaction by the state attacked or even a declaration of war by the state whose territory it is. Accordingly, in the Judgement of the Nuremberg Tribunal, having considered the detailed nature of the cases, and in particular the language and terminology expressed by the prosecutors in the indictment, it concluded that the forcible occupation of the territories of the states of Austria (der Anschluss) and the Sudetenland (in Czechoslovakia), by the armed forces of the Third Reich, nevertheless did not amount to the waging of an “aggressive war” for the purposes of the allegation of a crime against peace, although they accepted that in the case of some of the Defendants it was evidence of an “aggressive act” going to the establishing of a common plan to, and preparation of, subsequent aggressive wars (ie against Poland, Belgium, France etc.)

(47)     It is not necessary, however, in the circumstances of the present issue, to explore these exceptions to the pre-1945 customary rule further. Since, even as regards the question of the definition of ‘war’ at customary law in that era, as opposed to the more contemporary concept of the expression ‘the use of force’ (as to which see sectiopn 5.2.2. immediately below), then where the military forces of one sovereign State power, by use of armed force, occupies the territory of another sovereign State power, which occupation was then opposed and resisted by the armed forces of that other power, as was beyond dispute the circumstance of the instant case ; then that has always amounted to and been recognised as comprising ‘de jure’ in a state of ‘war’ existing as between those two sovereign states, whether or not either or both of them, has chosen to declare such a state of war to the other and to the World.

(48)     That is to say evidence of ‘the actual commencement of hostilities' has always been accepted, subject to the above mentioned exceptions, as sufficient to establish a state of war existing between states, irrespective of whether or not such a state of war was formally ‘declared’ by either or both parties prior thereto.

    see Halsbury’s Laws of England Vol.49(1) pp.428 @ para 506 & p.430 @ para.508

(49)     In particular, the Court has even previously stated, its willingness to take ‘judicial notice’ of the existence of a state of war between this country and another, where ‘hostilities have actually commenced’, without requiring any formal proof of the fact to be admitted.

     see In re A Petition of Right [1915] 3 KB (CA) 649@ p.658 per Lord Cozens-Hardy MR and R. v. De Berenger (1814) 3 M&S p.67, and Alcinous v. Nigreu (1854) 4 E&B p.217.

(50)    Although it must be further noted, for the sake of completeness, that contrariwise, where a state of war has been formally ‘declared’ to exist by the Crown, then a subsequent certificate by the appropriate official of the executive that such a state of war continues to exist, shall be conclusive of the fact, and the Court will accept it as such, even though there is evidence that the government of the enemy state has surrendered, so that at international law the situation might be different (as to the conclusive nature of an executive certificate see below @ [7.4] ).

      see R. v. Botterill, ex p. Kuechenmeister [1947] 1 KB (CA) 41@ p.50 per Scott LJ

5.2.2 ‘War’ vis-a-vis the ‘the use of force’ and ‘Armed Conflict’

(51)     Since 1945, it has been the firmly established rule in international law, both customary and conventional, to define breaches of humanitarian law committed in the course of an armed conflict and in such circumstances as previously gave rise, at the time of Nuremberg, to the sobriquet “war crimes”, by reference instead to the unlawful use of ‘armed force’. This is deliberate in order to make the point that these laws on humanitarian conduct will now be held to apply today in all circumstances of international armed conflict, as between sovereign states, whatever the view they may take, politically or diplomatically, as to whether or not they are, or were at the relevant time, at “war” stricto sensu.

(52)     There is a manifest logic to the effect that the law describing the circumstances in which a crime can be committed during the course of a war or other international armed conflict (the 'ius in bello'), should also be consistent and compatable witht the law relevant to the circumstances in which it is criminal to resort to war, or the use of armed force, in the first instance (the 'ius ad bellum'). This is especially important in relation to the third category of crime covered by the Nuremburg principles, namely the commission of a 'Crime Against Humanity', which in the contemporary context is capable of being committed whether as a part of the 'jus in bello' or not.

(53)     Examples of such a modern terminology are now to be found in Art 2(4) of the UN Charter 1945 (see below), the Art.2 of each of the four Geneva Conventions (1949), Art.2(b) 1st Additoinal Protocol (1977), Art.1 UN Convention on Excessively Harmful Conventional Weapons (1981) and many other places besides. These widely accepted and adopted conventional treaty provisions, including most particularly in this country adopted by the Crown, are highly declaratory of the now well recognised and established advance in customary international humanitarian law, whereby such international legal principles are held to apply to all cases of the international use of armed force, irrespective of the technicalities of whether or not in any given circumstances, such a use of force also amounts legally to a recognised state of ‘war’.

(54)     Accordingly, it is submitted that in order to be consistent with this acknowledged development in the character of the conflicts to which the principles of humanitarian customary international law will now apply, the definition of a “crime against peace” must now been interpreted as applying to any case where “an individual who, as leader or organiser, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a State shall be responsible for a crime of aggression”, whether or not such an act (if it were to be carried out) would also constitute an “act of war” or “war of aggression” stricto sensu.

(55)     Indeed, this is precisely the formulation which has now been adopted by the International Law Commission for the definition of the “Crime of Aggression” under its “Draft Code on Offences Against the Peace and Security of Mankind” (1996) Part II Art.16 (see Background Document RLM 002). This in turn is consistent with the language of the Commission in its accompanying commentary on the modern utility of the international offence of committing “war crimes” (stricto sensu), which it finds to comprise today in the "violations of humanitarian law applicable in armed conflict". Again, in its turn, this has informed the formulation of the text of the Rome Statute on the International Criminal Court (1998) regarding “war crimes” (Art.8.2) and of course thereafter, in this country, the provisions of the International Criminal Court Act (2001) s.50(1).

(56)     Therefore, it is submitted that under contemporary customary humanitarian law a ‘crime against peace’ is committed, wherever someone takes an active part in the planning, preparation, initiation or waging of an act of international aggression, whether or not such an act would be independently recognised as comprising in an “act of war” or “war of aggression” stricto sensu, and furthermore, it is this formulation which it transpires is entirely consistent with the "definition of aggression" as was declared and adopted by the General Assembly of the United Nations in 1974, and which received the specific affirmation of the Crown on the vote (as to which see below @ s.5.3.2 ).

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