Wolff Heintschel von Heinegg

When Is a Cyberattack a Use of Force or an Armed Attack

A cyberattack involving military or intelligence operations might not rise to the level of a “use of force” under international law. Legal experts generally agree that to qualify as an armed attack, a cyberattack must result in death or a significant degree of injury to persons or physical damage to property.

The International Law of Mine Warfare at Sea

The extensive use of mines during the Russo-Japanese War and the damage caused to innocent shipping, even after the end of hostilities, induced the delegates to the Second Hague Peace Conference to include the subject of naval mines in the agenda. Hague Convention VIII has thus acquired the status of customary international law governing the use of automatic contact mines. The laying of mines is permissible in the territorial sea, in the internal waters and the archipelagic waters of the mine-laying State. The question arises as to whether and to what extent these rules are compatible with the international law of the sea, where the territorial sea is concerned. The customary rules of the maritime jus in bello are an appropriate means for restricting the employment of mines in naval armed conflicts. The only promising means of achieving this aim is an international codification of the laws of naval warfare. Keywords:archipelagic waters; Hague Convention; internal waters; international law; mine warfare; naval armed conflicts; naval mines; territorial sea; territorial waters

The Protection of Navigation in Case of Armed Conflict

This presentation gives a reassessment of the rules on naval warfare on the background of the fact that most armed conflicts in the post-World War II period have been internal or mixed armed conflicts. In this context the questions concerning the applicability of the traditional rules on naval warfare and the potential area for naval warfare are raised. The paper deals predominantly with the protection of navigation of neutrals.

The Tallinn Manual and International Cyber Security Law

The Tallinn Manual is a consensus academic work identifying the lex lata applicable to cyber warfare. It focuses on the jus ad bellum and on the jus in bello applicable to State conduct in and through cyberspace and, thus, constitutes a rather selective or sectorial approach to cyber security. Although cyber security is highly dependent upon a public-private cooperation and although it is predominantly challenged by cybercrime, the Tallinn Manual’s approach is justified by the fact that there is a genuinely military dimension of cyberspace. The Tallinn Manual is not an obstacle to a coherent approach to cyber security but rather an important first step in the development of international cyber security law as a distinct branch of international law.

The Development of the Law of Naval Warfare from the Nineteenth to the Twenty-First Century—Some Select Issues

This chapter highlights some developments of the law of naval warfare that have resulted either in the continuing validity of traditional concepts, principles and rules or in a modification of the ‘old rules’. Those modifications were not necessarily agreed upon because of the evolution of weapons technology but rather with a view to enhance the legal protection of victims at sea. The overall assessment of the development of the law of naval warfare is positive because it has indeed produced a higher degree of legal clarity. This certainly holds true for the categories of lawful targets and for methods and means of naval warfare. Nevertheless, there are some issues that are in need of further clarification. While the traditional rule, according to which only warships are entitled to exercise belligerent rights, has survived, the emergence of unmanned maritime systems has created new problems insofar as their legal status is far from clear. Similar questions relate to submarine communications cables, which, despite their overall importance, have so far been neglected. Another aspect that deserves some attention relates to protected vessels, in particular hospital ships, and to protected persons. The latter is of high importance because the status of neutral nationals in times of naval war is not yet fully settled.

The Difficulties of Conflict Classification at Sea: Distinguishing Incidents at Sea from Hostilities

Incidents at sea between warships and military aircraft often involve more than provocative actions – they may be aggressive and can sometimes result in death and destruction. In view of the low threshold of a resort to armed force by one State against another that would bring an international armed conflict into existence, it is rather difficult to determine whether incidents at sea remain below that threshold. Similar, albeit less difficult problems arise with regard to forceful measures taken by States against foreign merchant vessels. Here it is important to clearly distinguish between law enforcement at sea and the exercise of belligerent rights.

Minelaying and the Impediment of Passage Rights

Naval mines are considered to pose a serious threat to international shipping. This certainly holds true for free-floating submarine contact mines but not necessarily for modern naval mines that are highly discriminating weapons. Be that as it may, the mere fact that naval mines have been laid in a given sea area will impede upon freedom of navigation. The only international treaty dealing with naval mines is the 1907 Hague Convention VIII, whose scope is limited to automatic submarine contact mines and which was concluded at a time when the breadth of the territorial sea did not exceed 3 nautical miles and other concepts, such as the EEZ, were unknown. The first part of the present chapter deals with the question whether and to what extent belligerents are entitled to lay mines in international straits overlapped by their territorial sea, their archipelagic waters, or in the high seas. The second part deals with the legality of naval minelaying in times of peace, which is to be determined in the light of the Corfu Channel judgment, the international law of the sea, and the positions taken by States in military manuals.

Der Einsatz der Deutschen Marine im Rahmen der Operation ,,Enduring Freedom"

Die Terroranschlage am 11. September 2001 in New York, Washington, D.C. und Pennsylvania, bei denen nach letzten Angaben ca. 3000 Menschen den Tod fanden, losten weltweite Betroffenheit und eine bisher nicht bekannte Bereitschaft der Staaten zum Kampf gegen den internationalen Terrorismus aus. Eine Vielzahl von Staaten nahm die Anschlage zum Anlas, ihre nationalen Sicherheitsund Abwehrmasnahmen zu uberprufen und zu verscharfen. Daruber hinaus formierte sich unter der Fuhrung der Vereinigten Staaten die sogenannte Anti-Terror-Allianz Enduring Freedom, deren erklartes Ziel die vollstandige Zerschlagung der Strukturen des internationalen Terrorismus ist.