02 Jun Why Is Israel’s Blockade of Gaza Legal? (Updated)
I know that will sound like a provocative question, but it’s not meant to be. According to the Jerusalem Post, Israel justifies its interdiction of the “Freedom Flotilla” by reference to Article 67(a) of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, which permits the attack of neutral merchant vessels that “are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture.” The interdiction thus depends on the legality of the blockade of Gaza — and I am genuinely confused as to why that blockade is legal. The Jerusalem Post says the Israeli government is arguing that “Israel was in a state of armed conflict with Gaza and therefore entitled by international law to blockade Gaza.” But that defense ignores a critical question: what kind of armed conflict?
If the conflict between Israel and Hamas is an international armed conflict (IAC), there is no question that Israel has the right to blockade Gaza. (Which is not to say that the manner in which Israel is blockading Gaza is legal. That’s a different question.) The 1909 Declaration Concerning the Laws of Naval War (the London Declaration), the first international instrument to acknowledge the legality of blockades, specifically recognized the right of belligerents to blockade their enemy during time of war. Article 97 of the San Remo Manual does likewise. And there is certainly no shortage of state practice supporting the legitimacy of blockades during IAC (the US blockade of Cuba, for example).
But what justifies a blockade in non-international armed conflict (NIAC)? The London Declaration does not justify such a blockade, because it only applies to “war”– war being understood at the time as armed conflict between two states. Does the San Remo Manual justify it? The Manual is not a picture of clarity concerning when its rules apply, but it does not seem to contemplate non-international sea conflicts. Article 1 speaks of “the parties to an armed conflict at sea,” which does not seem to include NIAC, unless perhaps a rebel group has a navy. (Do any?) Article 2 parallels the Martens Clause in the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, which only applies to IAC. Article 3 acknowledges the right of self-defense under Article 51 of the UN Charter, but — as Marko Milanovic has pointed out — that right is an exception to the prohibition on the use of force in Article 2(4), which only operates between states. And numerous articles in the Manual refer specifically to “belligerent States” (see, for example, 10, 20, 34).
There also appears to be little, if any, state practice to support the idea that a blockade is legally permissible in NIAC. According to the Jerusalem Post, the Israeli government is defending the blockade by citing Yoram Dinstein’s statement that “there are several instances of contemporary (post-UN Charter of the Law of the Seas) practices of blockades, e.g. in the Vietnam and in the Gulf War.” But those were all blockades in IAC. I can’t think of any blockades in NIAC other than Israel’s blockade of Gaza — though readers should feel free, of course, to correct me.
The seeming absence of support for blockades in NIAC is obviously important, because it is difficult to argue that Israel is involved in an IAC with Hamas. First, it is obviously not in a traditional IAC, because Gaza is not a state. Second, not even Israel claims that the conflict has been internationalized by the involvement of another state. And third, although the Israeli Supreme Court held — controversially — in the Targeted Killings case that armed conflict between an occupying power and a rebel group is international, Israel’s official position is that it not currently occupying Gaza.
Israel’s defense of the blockade thus appears to create a serious dilemma for it. Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC with Hamas. And if it is not currently involved in an IAC with Hamas, it is difficult to see how it can legally justify the blockade of Gaza. Its blockade of Gaza, therefore, seems to depend on its willingness to concede that it is occupying Gaza and is thus in an IAC with Hamas. But Israel does not want to do that, because it would then be bound by the very restrictive rules of belligerent occupation in the Fourth Geneva Convention. (For a discussion of the difference between the humanitarian obligations imposed by belligerent occupation and by blockades, see Dapo Akande’s post at EJIL: Talk! here.)
There is, however, another possibility: that Israel’s blockade of Gaza is not a “belligerent blockade” at all, but is instead something akin to a “pacific blockade,” defined by the Dictionary of International Law as “a form of coercive measure short of war, whereby a state (or group of states) bars access to the coast of a state or part of it in order to prevent entry and exit of ships of the state under blockade.” I say “akin to” a pacific blockade, because — as the definition indicates — such blockades assume that the blockaded entity is a state, not a non-state actor. Even if Israel’s blockade of Gaza would analogically qualify as a pacific blockade, however, it would still be of questionable legality: pacific blockades are only legal with the approval of the Security Council, according to the Dictionary of International Law, and the Security Council has never approved the blockade of Gaza.
It seems to me, in short, that it is difficult to argue Israel has the legal right to blockade Gaza. But let me be clear — I am not certain that I am correct. I am not an expert regarding the law of blockades. I am not an expert regarding the law of the sea. I am not an expert regarding the San Remo Manual. So I am genuinely open to being convinced that my argument is wrong.
Readers? Your thoughts? (And be warned that I will delete nasty or irrelevant comments. I’m trying to encourage genuine academic debate over the legality of the blockade; I have no interest, at least in this post, in debating the normative or political merits of Israel’s actions.)
UPDATE: As a number of commenters have pointed out, Lincoln’s blockade of the Confederate States of America (CSA) during the Civil War is a relevant historical precedent. But I think that the Civil War blockade actually supports the argument I’ve made above. As noted in the Lincoln section of the University of Virginia’s Miller Center of Public Affairs, the international community viewed the blockade as an act of war that required the CSA to be formally recognized as a belligerent, thus effectively transforming what was previously a NIAC into an IAC:
The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law… to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the Confederacy, and to formally debate in Parliament the merits of active intervention.
L.C. Green, one of the great IHL scholars, agrees with this analysis. If this is still the state of the law — and I don’t know whether it is — it would be possible to argue that Israel’s conflict with Hamas is an IAC and Israel is thus entitled to blockade Gaza.
But there’s a catch — and a big one. If the “cost” of the blockade is formally recognizing Hamas as a belligerent, maintaining the blockade would mean recognizing Hamas fighters as privileged combatants. (Just as the armed forces of any state are privileged combatants.) That would be fundamentally unacceptable to Israel, because Hamas fighters would then be entitled to attack Israeli combatants and would have to be treated as POWs upon capture.
Thanks for this post.
No idea either, but since Israel is citing the provisions of San Remo Manual and 1909 London Declaration perhaps they could explain why these documents would be applicable in the first place. Unless these provisions constitute customary international law (and blockade practice seems to be scarce in that regard), what is their relevance in this situation?
The idea behind Sam Remo seems to “consolidate customary international law”, but again, is there enough state practice to support particular rules, as these on Gaza blockade?
I have no idea, but quite an interesting analysis. Now, I’d be quite interested in whether paintball guns(the first few soldiers had them apparently, and if you know anything about paintball guns, being shot by one is less than a bee sting) affect the belligerence, at least at the outset, of the israeli raid.
I must say that I’m no expert here but the following is surely significant:
Given how much second-guessing is going on about what Israel can and cannot do according to international law, the IDF performance in a competition with 44 other groups should give pause to anyone making glib condemnations.
It is great that kids are studying IHL, but how is that relevant to the present discussion about the blockade? Does it mean that Israel has a final say on any IHL interpretation?
Unfortunately, my knowledge of customary international law is derived from study of the American Civil War, not more recent conflicts, but the law at that time was that a country engaged in a non-international conflict (i.e., against rebel forces) could close the ports which it did not control. At that point, despite the slight nomenclatural difference (“closing” versus “blockading” a port), the customary laws of war applicable to blockades (e.g., laws regulating when neutral ships may be boarded, attacked, captured etc.) would apply. I believe that is Israel’s current situation.
No of course Israel has no final say. Who does have a final say? I live in the US and feel I should have some say in in IHL since it will have an effect on me. But I have no such say as with proposed US law. Why am I to be ruled by international law professors and jurists?
OK Prof Heller, go ahead and delete that.
As a non legal wonk, I headed to my university library to pick up a few books on the issue, and they all talk about IAC, so I’ve been similarly scratching my head.
I have a related question. Can a belligerent state act upon a ship regardless of the distance from a blockaded zone, or does the ship need to be inside a zone before being intercepted?
If so, did Israel give clear notification of this zone? Their MFA briefing doesn’t mention it. In their favour, they stopped the ships at the same distance the stopped others last year – 67 nautical miles from the Israeli coast.
The Civil War is an interesting case, but I don’t think it affects the analysis. As LC Green, one of the great IHL scholars, has pointed out, the customary law of war only applied at that time to international conflicts. The reason the customary law of war applied to the Civil War was that foreign governments formally recognized the Confederacy as a belligerent, effectively transforming the Civil War into an international conflict. Indeed, as the State Department’s Office of the Historian has noted, foreign governments only accepted the blockade as legal because the Confederacy was recognized as a belligerent. The Civil War thus supports the idea that Israel’s blockade is unjustified in the absence of IAC.
In 1948 many Arab states declared war on Israel, and while some of them (Egypt, Jordan) have made peace, others (Syria, Lebanon) are still formally at war with Israel. Palestine was to be partitioned into two countries, but Gaza was seized by the Egyptians. Gaza is now unoccupied territory not part of any recognized country, but run by Hamas an ally of Syria and Hezbollah who are part of a formal international armed conflict.
There are, therefore, several different competing legal theories about why Israel is entitled to blockade Gaza. It could be occupied territory, a militia allied to enemy countries in an international war, a secessionist territory recognized by various countries like the CSA, part of an actual country engaged in an armed conflict.
What has not been proposed is any legal theory in which Gaza occupies the status of being part of a recognized country that is at peace with Israel, which is the only theory that would make the blockade illegal. Is it important at this time to determine precisely which justification is strongest. Given over sixty years of conflict during which none of these legal theories has been resolved, is there any framework to make this determination.
I actually think the argument comparing the situation to the US Civil War is pretty pertinent. In many respects, the situation of the Palenstinians in Gaza/Hamas is pretty similar to the Confederacy, of course in more modern terms. They are not a state, but de facto exercise state-like functions on their territory; moreover, the UN GA routinely acknowledges their right to self-determination, apparently making them a subject of international law for the purpose of their struggle. This is one of the closest things to recognition of belligerency you get in contemporary world affairs…
I am not sure if there were serious protests against the blockade before this incident happened, so I cannot gage the opinio juris 😉 of the international community appears in this respect, but if nobody acted as an objector to the blockade before yesterday, then arguably a rule could have been formed that in such situations a blockade is warranted.
Dear Kevin, I do not wish to take a firm stand in the discussion on the legality of the blockade (as I am not an expert on this issue either since I – unfortunately – do not belong to the very small group of experts on naval warfare) or with regards to the conflict in general. However, I do have an observation in relation to the influence of the nature of the conflict on the matter. (see your paras 4-6) Based on CA 2 of the GCs, the government position of Israel as to the existence of a situation of occupation does not impact on the legal nature of the situation. Hence, if one is to except that Gaza is occupied, irrespective of Israel’s view on the matter, the conflict would be an IAC. Be that as it may, I agree with your “you can’t have the cake and eat it” argument insofar that Israel cannot on the one hand claim not be bound by the rules of LoIAC (to use Dinstein’s abbreviation) in its conflict with Hamas, yet at the same time rely on the LoIAC in order to argue that the blockade is legitimate. I do not agree, however,… Read more »
I certainly agree with you about the question of occupation — it’s one of fact, not one determined by the ostensible occupier. My point, as you recognize, is that Israel is not about to take the position that it is occupying Gaza in order to justify the blockade.
I also agree with your final point about implied recognition of belligerency — but Israel would certainly never accept that justification for the blockade, either, because it would mean that Hamas fighters would be privileged belligerents who could lawfully attack Israeli soldiers and who would be entitled to POW status if captured.
There is quite interresting argument, that Gaza blockade is illegal because of it’s impact on civilian population.
Associate Professor Ben Saul is Co-Director of the Sydney Centre for International Law at The University of Sydney. He argues:
What Israel conveniently omits to mention is that the San Remo Manual also contains rules governing the lawfulness of the blockade itself, and there can be no authority under international law to enforce a blockade which is unlawful. Paragraph 102 of the Manual prohibits a blockade if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade”
Intersting article. it seems as if there is a legal loophole for hamas and its supporters to act as it pleases, while Israel’s hands are tied. In this situation, what rules would be applicable?
In between reading the initial post (without any comments) and sending my comment, I was typing the said typing and having a coffee. I now see that others have also pointed to the American Civil War. I agree with these others.
I suppose this has to do with the recent discussion on EJIL: Talk! about line drawing between NIAC and IAC. There are certainly some elements present here that make this conflict international, including the fact that Israel does not interfere with the way Hamas governs the people of the Gaza strip. Even though Gaza is not a state, it would certainly qualify for recognition as a belligerent if states still did such a thing. Personally, I don’t think the argument of the original post holds, because absence of proof is not proof of absence: a blockade doesn’t come up very often in the context of a NIAC, which is why there isn’t a lot of law or practice on it. But that doesn’t mean that states have ever viewed a blockade as less legitimate or less lawful in a NIAC than in an IAC. For the purposes of this problem, I don’t see why one should make the distinction. Given that, the only part that I am wondering about is whether Israel is entitled to carry out its blockade on the High Seas. AFAIK, it is certainly allowed to search for weapons, etc. on the high seas – again on a… Read more »
I don’t think either that Israel would accept the “belligerency-justification” of the blockade, but that brings us back to your (correct) “you can’t have the cake and eat it”-argument.
[…] at Opinio Juris, Kevin Jon Heller has an excellent post in which he suggests that the legality of the blockade depends on the type of armed conflict is […]
I found this on the website of the University of Virginia’s Miller Center for Public Affairs. It clearly supports the idea that a blockade can only lawfully be conducted against a state or against a rebel group recognized as a belligerent: The first crisis occurred when England issued a proclamation of neutrality, which rested upon the logic of the Union’s declared blockade. According to English reasoning, although Lincoln proclaimed the rebels to be insurrectionists and thus not recognizable under international law as a belligerent power engaged in war, his declared blockade was an act of war, which would have to be conducted against a sovereign state. Thus Lincoln had actually granted belligerency status to the Confederacy and thereby forced foreign powers to do the same. By proclaiming neutrality, England afforded the Confederacy the status of a belligerent power. Other European nations followed England’s lead. Belligerency status gave the Confederacy the right, according to international law (signed by European nations after the Crimean War in 1856), to contract loans and to purchase arms from neutral nations. It also allowed England to provide safe harbors for both Union and Confederate warships and merchant vessels, to build blockade runners and warships for the… Read more »
Kevin, In The Prize Cases, I believe the Supreme Court found that the laws of war, particularly those of blockade and prize, applied to civil wars. It relied to some extent on declarations of neutrality by foreign governments. It did not, if memory serves, thereby convert the conflict into an international armed conflict. It only concluded that it was a conflict subject to the laws of war. Whether that view ever reflected customary international law, or if so whether that customary law survives to the modern day, is certainly questionable. It is possible to see the Additional Protocols to the Geneva Conventions as only adding express agreement to apply certain protections in non-international armed conflict while leaving untouched any customary international law that preceded them. The first protocol also expanded the scope of conflicts subject to the rules of international armed conflict to include certain types or forms of non-international armed conflict — those against colonialism, alien occupation and racist regimes. One could debate whether the Israel-Gaza conflict falls somewhere in there. Certainly there are some non-international armed conflicts that do not meet the requirements of Article 1 of the second protocol but are still governed by international humanitarian law. Some… Read more »
@KJH: That precedent assumes that the practice of recognising belligerent exists. Given that it doesn’t, I don’t see how that fact makes a blockade of Gaza unlawful.
(Even if Hamas fighters aren’t “privileged belligerents” because they don’t wear uniforms, etc., the territory of Gaza, the people in it and the Hamas-government that governs it are surely a party to an armed conflict, albeit not exactly an international one.)
[…] it seems reasonable to look at the legality of all this. See Opinio Juris for a few thoughts on the Gaza blockade. And EJIL: Talk! for thoughts on proportionality. Here’s a Q and A, also on the legality of […]
I don’t know anything about international law (except what I read here!), but, pragmatically, why would nations have less power to control access to their own territory than they do to control access to other nations’ territory? This result seems especially unintuitive because the maritime law treaties do not seem especially concerned with regulating nations’ treatment of their own populace.
Obviously, Hamas fighters could still be prosecuted for war crimes if they violated the laws of war. But I don’t see how, if a state of belligerency formally existed between Israel and Hamas, they could be deprived of POW status. Article 4(1) of GCIII refers to “members of the armed forces of a Party to the conflict,” not to members of the armed forces of a State, and it does not require such combatants to satisfy the requirements of Article 4(2). If Hamas was a belligerent, it would be a Party to the conflict. So its fighters would be entitled to POW status.
Art. 4(1) applies to the armed forces, and Art. 4(2) applies to militias. As you note, only 4(2) contains the “4 requirements.”
I have always understood the requirements in 4(2) to govern whether an individual was a privilege combatant. In other words, the requirements of 4(2) were understood to be the basic requirements for a soldier/etc. to be recognized as a privileged combatant. To put it another way, how is “a member of the armed forces” to be determined if not by references to the “4 requirements” in 4(2).
I think Prof. Heller gives the recognition of “belligerent” status in the 19th century much more significance than it had. Great Britain and France most certainly did not recognize the Confederate government, exchange ambassadors with it, make treaties with it, or otherwise treat it as a nation-state. Their recognition of its “belligerent” status did not convert the Civil War into an “international” conflict.
As I understand, “belligerent” status meant that a group was acknowledged to be conducting war according to the norms of the time, i.e., members of the group fought in uniform, under command, bore arms openly, etc. (A group which doesn’t do those things is considered merely bandits or pirates.) The idea that a group which didn’t do those things somehow has more rights than one that does, which seems to be Prof. Heller’s position, surely would have struck Palmerston and Disraeli, or Judah Benjamin for that matter, as ridiculous.
I think the general consensus — including the longstanding US position — is that regular combatants do not have to comply with the article 4(2) requirements to maintain their POW status. See pages 8-10 of this ASIL article. (I can’t copy the text.)
I did not say that foreign governments treated the CSA as a state. I said — following the Miller Center and LC Green, whom you have not attempted to rebut — that the foreign governments treated the CSA as a belligerent instead of as an insurgent, thereby entitling the CSA, as the Miller Center points out, to the same rights and privileges as a state for purposes of the armed conflict. The very idea of belligerency implies armed conflict between sovereign equals (though not necessarily conflict between states).
The key appears to be “belligerent.” I’m not really sure what that is supposed to me in this context.
I will note that neither the UK nor France formally recognized the Confederacy. Allowing safe harbor and building their ships doesn’t change that analysis. So, either this “belligerent” designation doesn’t get you very far or it probably isn’t being used accurately.
Thanks, I’ll check out that article.
Another non-expert question here. Does it make a difference what goods are being interdicted by the blockade? Article 102 (b) of the San Remo Manual suggests that even for an international armed conflict, a blockade with a disproportionate impact on the civilian population is illegal. Given that Israel prevents not only weapons, but a wide variety of goods with no conceivable military use from reaching Gaza (see http://gisha.org/UserFiles/File/HiddenMessages/ItemsGazaStrip060510.pdf for a list), does that not suggest that the blockade is illegal, regardless of the status of the conflict in question?
Having thought about this on the treadmill at lunch, I think the designation of the Confederacy as a “belligerent” is a red herring. First of all, that designation was not accorded by the Union, but by foreign powers. If Germany and France want to designate Hamas as a “belligerent,” they can do so. It is not up to Israel. Second, the belligerency designation was intended and perceived as a boon to the Confederacy. Most saliently, it meant that Confederate commerce raiders were not pirates, the common enemies of mankind, but warships. Certainly I am not aware of anyone at the time suggesting that this designation was boon to the Union, legitimating what would otherwise have been an illegal blockade. If the blockade had been illegal, that would presumably mean that the Union warships enforcing it were pirates or at best war criminals, which I certainly don’t think anyone claimed at the time. At most, the designation of belligerency was a consequence of the blockade. As I said, if other nations want to designate Hamas as a belligerent, no one can stop them.
<i> Article 1 speaks of “the parties to an armed conflict at sea,” which does not seem to include NIAC, unless perhaps a rebel group has a navy. (Do any?) </i>
The Tamil Tigers did. This point is lost on me though–is the idea that there needs to be a recognizable conflict taking place specifically <i>at sea</i> for the law to apply? Wouldn’t the smuggling of weapons by sea be relevant there?
BTW, I was poking around Google to find examples of naval blockades against insurgencies. It not unprecedented, even in the modern era: The French used a naval blockade against Algeria in the 1950s, when they certainly regarded Algeria as part of France. More recently, as “a” notes, the Sri Lankans deployed a naval blockade against the Tigers.
Associate Professor Ben Saul is Co-Director of the Sydney Centre for International Law at The University of Sydney, a barrister, and a leading international authority on terrorism in international law. Dr Saul teaches the law of armed conflict and has been involved in such cases in The Hague, the Israeli Supreme Court, and in the Balibo coronial inquest: What Israel conveniently omits to mention is that the San Remo Manual also contains rules governing the lawfulness of the blockade itself, and there can be no authority under international law to enforce a blockade which is unlawful. Paragraph 102 of the Manual prohibits a blockade if “the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade”. The background to that ‘proportionality’ rule is the experience of past world wars where naval blockades had devastating effects on civilian populations.There is little question that Israel’s blockade of Gaza is disproportionate in legal terms. The proportionality rule requires an assessment of the military advantage against the harmful effects on civilians. Israel claims that the blockade is necessary to prevent Hamas from mounting indiscriminate rocket attacks on Israeli civilians. The… Read more »
Hamas/Gaza is ineligible for “belligerent” status according to the theory that declares/recognizes them as a “terrorist organization” see: http://www.npr.org/templates/story/story.php?storyId=6583080
Apparently, slapping a “terrorist” label on anything (even a state?) is a way to circumvent obligations states might otherwise have regarding normative notions of human rights or justice.
While it doesn’t help answer the question of legality of Israeli actions, it may be of note that the British violated the naval rules of war by blockading Germany of non-military materials and by arming merchant ships. Those who win the war write the history.
I’m no specialist either, and you seem to all succesfully show that the fact of knowing whether it’s an IAC or an NIAC is relevant for the legality of the blockade, at least as the law stands.
But I’m bit puzzled at the distinction in the first place. a NIAC being defined when an armed group is occupying part of a territory of the State, it would make sense that you would allow the State to prevent help military help to this part of the territory by sea (Rogier pointed that out). That’s the whole idea of a blockade and if you’re going to allow it for an IAC, I don’t see what justifies, in theory, not allowing it for an NIAC…
Whether we’re in presence of either of the two with Gaza is a different issue of course, but do you have any thoughts on the rationale for the distinction in the first place?
I, too, am no specialist, but how was the Cuban Missile Crisis an IAC (particularly the “A” part)?
Here is some info about IHL in occupied areas
Also ICJ case ( Corfu channel case )
Sorry to break into the intellectual part of this argument, but all principles of law recognize the right to defend oneself (or one’s nation) against deadly force and aggression.
UNSC Resolution 1860, passed in January of 2009 calls for opening unimpeded access to humanitarian assistance to Gaza,which several sources are claiming supersedes the San Remo Agreement.
However, that same UN resolution also calls for an end to violence against civilians and for member states to end ‘illicit trafficking in arms and ammunition.’
One could make the argument that since Hamas, Syria and Iran never abided by this,nor even received any consequences for blatantly violating it that Israel isn’t bound to it either…especially since the Israeli/Egyptian blockade is a direct result of Iran illegally shipping arms to Hamas and Hamas subsequently using them against Israel’s civilians.
International law when it comes to Israel appears to be a standard applied to Israel when it is convenient to her enemies, and ignored when it is not.
It seems what the author of the article does is to say that the San Remo Manual does not expressly state you can “blocade” a non-state entity, and then leap to the conclusion that if the Manual does not expressly state you can do it, them you can’t; and that because several articles expressly use the term “beligerent states”, this means that “states” are meant throughout. However, the authour should be aware that this is not how interpretation works. The authors of the Manual are presumed to be using the term “states” when they mean “states” and where they deliberately avoid using the term “states”, they mean something more inclusive. Let’s examine the provisions that the author of the article is basing his analysis on. The author claims that the Manual uses “states” in article 10, and thus only states must be included where interpreting who can be blockaded. Article 10 states as follows: 10. Subject to other applicable rules of the law of armed conflict at sea contained in this document or elsewhere, hostile actions by naval forces may be conducted in, on or over: (a) the territorial sea and internal waters, the land territories, the exclusive economic zone and… Read more »
Your point on the third Geneva Convention is well taken as a matter of treaty law between high contracting parties. All I stated is that some scholars (one with which the Israeli government is particularly familiar) argue that “armed forces” means those regular forces that satisfy four traditional characteristics of state armed forces. They take them to be requirements of privileged belligerent status. The article you cited offers a somewhat incomplete review of relevant authorities, in my humble opinion.
Putting that issue to one side, the article you linked also makes clear that belligerent or organized armed group status in non-international armed conflict does not necessarily elevate dissident forces to “sovereign equal” status for purposes of having the full rights of a belligerent state. It certainly subjects them to the same duties. No treaty of which I am aware establishes a principle of sovereign equal status. I would be shocked to find such a principle supported by state practice. What is the Miller Center’s authority for this?
“I think the general consensus — including the longstanding US position — is that regular combatants do not have to comply with the article 4(2) requirements” (Kevin) The Bush administration authored a DOJ opinion (Yoo) and a longer and more detailed State Department opinion (Bellinger) to claim that forces of the Afghan army under the Taliban were not lawful combatants and were not entitled to the status of POWs because they did not meet the “four part test” of 4(2). The paper you site is one of several sources that correct these opinions. Unincorporated militia operating independently of the main armed forces do have to meet the four part test. Militia incorporated into the regular army are automatically covered. The original text of Article 4 apparently applied the four part test to all forces, but that was changed after the Russians pointed out that, as the pages you cite in your post note, that position would contradict the Hague Agreements of 1907. However, as this applies to Hamas, it is my understanding that even if you grant the Palestinians status as belligerents, the regular armed forces fall under the control of Abbas. Hammas in Gaza could at most mount an… Read more »
I am not a lawyer – thank god – you can file away a point until it is dull. What is a layman to make of statements from the UN Human Rights council that condemned the Israeli action and has repeatedly called for the lifting of the blockade of Gaza and has characterized the entire treatment of the Gaza strip as a case of collective punishment? How do international bodies weigh in any of these calculations? In as much as the International Criminal Court in the Hague has been ignored by the Israeli government regarding the construction of that barrier between themselves and the West Bank, does any of this discussion matter at all? Also as a layman, none of the points above seem to mention the distance at which the boarding took place. I don’t understand why the Israeli boats didn’t wait until they had less dubious distances – 12 or 24 miles. Didn’t Libya also try to extend it’s territorial waters to 200 miles many decades ago. It almost suggests that Israelis may be trying to pull a similar stunt when they built the wall beyond their own borders with the West Bank. Does any suspect that they… Read more »
Response…This central issue of non-state parties negating the ability of a conflict to be anything other than NIAC seems a real failing of International Law as a whole. The way the Geneva Conventions and so many other such documents are structured they put actual Nations at serious, and in my opinion, unnecessary legal risks just to defend themselves. In looking at the US armed conflict against Al Qaeda and their related operatives, we are forced to classify the conflict as NIAC even though we are actively engaging them in multiple nations simultaneously. That seems quite an insane definition to have to submit to. Israel ends up in a similar situation. They no longer occupy Gaza but the Palestinians are not allowed (or don’t yet want) to declare Gaza sovereign territory, even if an incomplete one. This stacks the deck against Israel when it comes to how everyone can interpret international law, stacked quite deliberately against Israel (and the US in its Al Qaeda conflict). Considering there are already established paths towards getting aid into Gaza this stunt by these activists is a political and physical attempt to bring the blockade to an end. And while the validity of such a… Read more »
In as much as the International Criminal Court in the Hague has been ignored by the Israeli government regarding the construction of that barrier between themselves and the West Bank, does any of this discussion matter at all?
International Court of Justice.
(It’s the one next door, the one that has existed since 1945 and that speaks to the rights and duties of states, as opposed to the ICC which only concerns itself with criminal law as applied to individuals.)
Regarding POW status that would still be dependent upon meeting the requirements as spelled out in Article 4(2) of the 3rd Geneva Conventions, would it not in the case of Hamas?
Since Palestine is not a sovereign state at this point and Hamas not its recognized governing body how do they attain privilaged combatant status by simply being a belligerant party?
One of my biggest issues with the GCs is their failure to clarify things. For example, in the Additional Protocols I (which I know the US is not a party to) it states regarding a Mercenary in an :
Art 47. Mercenaries
1. A mercenary shall not have the right to be a combatant or a prisoner of war.
So my question is: What is he then?
And the above only applies to IACs. There is no Article defining a Mercenary in Protocols II dealing with NIACs.
Does that mean a Mercenary cannot be a participant in a NIAC?
And what definition would even apply to Hamas (whether in the main GCs or the Additional Protocols)?
All of this just makes it more and more difficult to define what clear course of actions a Nation State has when faced with a non-Nation State enemy.
The San Remo Manual is not law but rather is an opinion on what the law is, prepared by a group of lawyers. (“The San Remo Manual was prepared during the period 1988-1994 by a group of legal and naval experts participating in their personal capacity in a series of Round Tables convened by the International Institute of Humanitarian Law. The purpose of the Manual is to provide a contemporary restatement of international law applicable to armed conflicts at sea. The Manual includes a few provisions which might be considered progressive developments in the law but most of its provisions are considered to state the law which is currently applicable.”) But the section cited by the Israeli government, para. 67(a) seems of little aid in the situation. “67. Merchant vessels flying the flag of neutral States may not be attacked unless they: (a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture[.]” The use of the present tense “breaching” would seem to require that the Flotilla have reached the boundaries of the blockade, i.e., to have… Read more »
1. There is no indication in the San Remo Manual that its rule in 67(a) applies only to international armed conflict. On the contrary, there are sections in the Manual that specifically apply only to international armed conflict (e.g., section 118), and the clear implication is that other sections apply to all conflict, whether international or non-international. Expressio unius est exclusio alterius. 2. A state of belligerence in the 19th century required an international armed conflict. It is far from clear that that is the case today. The decisions of NATO and the Security Council after the al Qaeda attack on the US on 9/11/01 appear to recognize the right to view the US as engaged in state of belligerence with al Qaeda after those attacks notwithstanding the lack of a state actor facing the US. Hamas is similarly a terrorist organization that has repeatedly attacked Israel. Alternatively, it is possible that the aftermath of the 9/11 attacks should be seen as indicating a new rule that views armed conflict between states and international terrorist organizations like al Qaeda and Hamas as international armed conflict. In that case, the conflict between Israel and Hamas is international. 3. The citation to… Read more »