The Civil War and the Blockade of Gaza (a Response to Posner)

by Kevin Jon Heller

In addition to saying kind things about me, which I appreciate, Julian noted in his earlier post that Eric Posner has an editorial in today’s Wall Street Journal that uses Lincoln’s blockade of the Confederate States of America (CSA) to defend the legality of Israel’s blockade of Gaza.  I find the editorial very unconvincing, for two reasons.  First, it provides an unacceptably selective account of Lincoln’s blockade, one that simply ignores the European reaction.  Second, the editorial misconstrues The Prize Cases.  Those are important problems, because the European reaction to the blockade and the Supreme Court’s treatment of it provide a critical qualification to Posner’s thesis that there is “a certain latitude for countries to use blockades against internal as well as external enemies.”  In particular, they indicate that an “internal” blockade of a highly-organized non-state actor like the CSA or Hamas is only permissible if the blockading state is willing to recognize that the non-state actor thereby becomes a belligerent who is entitled to the same privileges as the blockading state itself.

Background: “Insurgent” vs. “Belligerent”

First, some background.  It is important to understand why it matters, for purposes of international law, whether a non-state actor is considered an “insurgent” or a “belligerent.”  The classic discussion of the difference in terms of the Civil War remains Constitutional Problems Under Lincoln, written in 1926 by James Randall, a law professor at the University of Illinois.  Here is how Randall lays out the importance of the distinction (pp. 59-60):

Having noted the controversy concerning the executive measures taken at the outset of the war, we are now led to inquire into the legal character of the conflict itself. Was it a domestic uprising by mere insurgents who owed allegiance to the sovereign power whose authority they were endeavoring to overthrow, or was it a public war between recognized belligerents? In other words, was the struggle a clash between governments, or was it a conflict waged by a combination of individuals against their government?

The legal bearings of this problem were far-reaching. Upon its solution depended the Government’s official attitude toward the Confederate States. The decision as to whether belligerent powers should be accorded to the Southern Government was involved, and this would inevitably engender foreign difficulties in case other nations should adopt a theory of the war at variance with the theory of the Washington Government. The propriety of various acts of the President would be involved also, for the President’s powers and duties in case of insurrection are different from those which obtain in time of recognized war. Many other questions would be involved: the treatment of captured “insurgents” as criminals instead of prisoners of war; the possible punishment of such “insurgents” as traitors, and the confiscation of their property; the use of the municipal power over the territory claimed by the insurgents when such territory should be captured; the legality of Confederate captures at sea, and the disposition to be made of the crews of Confederate warships and privateers. The decision of these and other important issues depended upon the fundamental principle that should be adopted as to what the existing conflict was in its legal character.

Insurrection, it will be readily recognized, is not the same as war. There are varying degrees of disturbances with which a government may be confronted: riot, insurrection; rebellion; civil war. A riot is a minor disturbance of the peace which is perpetrated by a mob. An insurrection is an organized armed uprising which seriously threatens the stability of government and endangers social order. An insurgent has been defined as “one who in combination with others takes part in active and forcible opposition to the constituted authorities, where there has been no recognition of belligerency.” Insurrection is distinguished from rebellion in that it is less extensive and its political and military organization is less highly developed. The term insurrection would be appropriate for a movement directed against the enforcement of particular laws, while the word rebellion denotes an attempt to overthrow the government itself, at least in a particular part of the country. War is a conflict conducted between recognized belligerents. It has been defined as ”that state in which a nation prosecutes its right by force.” The essential fact is that war is not, legally, a coercion of individuals. It is a condition in which individuals are relieved from responsibility for acts that would otherwise be criminal — a condition in which force is exerted either between established nations or between organized groups whose character as belligerent powers is conceded. A nation does not claim the municipal power over its enemies in a public war, but it does assert that claim in the case of insurrection or rebellion.

Randall highlights the importance of whether CSA soldiers were insurgents or belligerents.  Insurgents are nothing more than common criminals.  They have no right to participate in hostilities, they can be prosecuted for murder if they kill a member of the enemy’s armed forces, and they are not entitled to POW status upon capture.  Belligerents, by contrast, are privileged combatants.  They are allowed to participate in hostilities, they cannot be prosecuted for murder if they kill members of the enemy’s armed forces, and they are entitled to be treated as POWs upon capture.  They are, in other words, functionally equivalent to the armed forces of an actual state, even though they fight for an authority that is a non-state actor.

The Issue

We can now turn to the issue of whether the CSA was an insurgent or a belligerent.  Here is what the editorial says: “During the U.S. Civil War, the Union claimed to blockade the Confederacy while at the same time maintaining that the Confederacy was not a sovereign state but an agent of insurrection.” Posner believes, in other words, that the Union treated the CSA as an insurgency, not as a belligerency.  That is correct as far as it goes — but it is incomplete in in two critical respects.

The Blockade and Europe

First, it completely ignores the European reaction to the blockade.  The Union wanted the best of both worlds: to limit the CSA’s military capabilities by instituting a blockade, a traditional weapon of war, while continuing to treat the CSA as an insurgent, not as a belligerent.  The Union wanted, in other words, all of the advantages of the blockade while none of the disadvantages of having to treat CSA soldiers as privileged combatants.  Europe, however, categorically rejected the Union’s position.  Instead, it immediately and formally recognized the conflict between the Union and the CSA as a state of belligerency — as a war, not as an insurrection — and declared itself neutral in the conflict.  Here is a quote from the British Law Officers, the highest-ranking legal advisors to the Crown, that is indicative of the European response to the blockade:

This recognition was in accordance with principle and practice — that it was within the scope of the undoubted privilege of the Neutral State — and lastly that the course pursued by the declaration of Blockade on the part of the Government of the United States, had rendered this recognition both necessary and inevitable. The right of blockade which pressed so severely upon the interests of Neutral States, was a right incident, and incident only, to a state of war in which two or more belligerents were engaged, and never before, in the history of States, was the recognition of so extensive a blockade required by a Neutral State …

… For the United States to demand the exercise of these belligerent rights, and at the same time to refuse a belligerent status to the enemy, was plainly contradictory.

In truth the position is as novel and unsound in International Law and clearly propounded for the first time for the obvious purpose of giving the United States the advantage of being exclusively recognized by the Neutral State as Belligerent.

In other words, the European powers took the position that, by instituting a blockade, the Union was tacitly conceding that the conflict between the Union and the CSA had to be understood as a “war” in Randall’s sense, not simply as an insurrection.  The Union was thus required, in Europe’s view, to treat the CSA as a belligerent with the same rights and obligations under the laws of war that the Union itself enjoyed.

The Blockade and The Prize Cases

That was the European response.  What about the Union’s own response?  Despite the blockade, Lincoln insisted that the CSA was an insurgent, not a belligerent.  But did its actions support that description?  And did the Supreme Court agree with that description?

The answer to both questions is “no.”  With regard to the first, Randall points out the following (p. 65); emphasis in the original):

To leave the discussion here.. would give a misleading idea as to the actual treatment given to the Confederacy. It was not contemplated that the full consequences of the insurrectionary theory should be carried out, and side by side with this theory one finds a more reasonable attitude which allowed belligerent rights to the Southern Government.

[snip]

The refusal of the Union Government formally to acknowledge Confederate belligerency thus appears to be hardly more than a stickling for theory. In matters relating to the conduct of armies in accordance with the laws of war, the American struggle was not distinguish able from a conflict between independent, civilized nations, for the formalities of war were observed on both sides. The Union Government treated the Confederate forces as belligerents even though it did not intentionally recognize their belligerency in any direct, formal manner.

Randall provides numerous examples of how the Union treated the CSA as a belligerent, not as an insurgent.  The clearest example, however, is that the Union quickly backtracked from its earlier insistence that CSA naval forces could be executed as pirates (pp. 65-66; emphasis mine):

An attempt was made early in the war, before the policy of the Government had matured, to treat Confederate naval officers and seamen as pirates, and this of course involved the death penalty. President Lincoln’s proclamation of April 19, 1861, declared the crews and officers of Confederate naval vessels, and of vessels operating under letters of marque issued by the Confederacy, to be guilty of piracy; and, in protesting against the British proclamation of neutrality, one of the points strongly urged by Secretary Seward was that the recognition of belligerency would preclude attaching the piratical character to Confederate ships. But from every standpoint it was found impolitic and indeed impossible to carry out this policy of punishing for piracy those who were in the Confederate service. It is thoroughly recognized in international law that those who operate at sea under the authority of an organized responsible government observing the rules of war may not be treated as pirates.– Internationally, the Confederacy was a recognized belligerent, and to have its ships deemed piratical under the jus gentium was entirely out of the question. To treat them as pirates under the municipal law was practically equivalent to treating them as traitors, and, as we shall see when we come to discuss the subject of treason, the Union Government never carried its treason theory into actual practice as against those acting under the official authority of the Confederacy. Besides, when it became known that Southern privateersmen were being held for piracy, retaliation was at once threatened, and certain Union captives were selected as hostages, on whom the Richmond Government intended to retaliate in case the Federals should actually prosecute the piracy charge. There was but one thing to do with the captured crews—to treat them as prisoners of war—and this course was adopted. In this matter, therefore, the belligerency of the South was virtually conceded, and this concession of belligerent rights was naturally extended to other matters connected with the prosecution of the war.

It is still relevant, of course, that the Union did not formallyrecognize that a state of belligerency existed between it and the CSA.  So what about the Supreme Court?  Here is what Posner’s editorial says about The Prize Cases:

When the Union navy seized ships trying to run the blockade, their owners argued that a country cannot interfere with shipping on the high seas except during war, and one cannot be at war except with another sovereign state. The U.S. Supreme Court approved the captures in an ambiguous opinion that held that an armed conflict existed, even though one side was not a sovereign state.

That summary misconstrues the case, whose majority opinion is not ambiguous at all.  The ship owners wanted the Supreme Court to classify the Civil War as an insurrection, because the Union could only lawfully seize the ships if there was a state of war between the Union and the CSA.  Their argument was based on the fact that the Union had not formally declared war on the CSA — which it did not want to do, because it would officially recognize the CSA as a belligerent.  The Supreme Court rejected the ship owners’ argument, holding (1) that whether a state of war existed, as opposed to a state of insurrection, was determined by the magnitude of the conflict, not by formal declarations, and (2) that Lincoln’s decision to institute the blockade was “conclusive evidence” that the Civil War was a war between belligerents, not an insurgency between a government and a rebel group (p. 670; emphasis added):

The law of nations is also called the law of nature; it is founded on the common consent, as well as the common sense, of the world. It contains no such anomalous doctrine as that which this Court are now for the first time desired to pronounce, to-wit, that insurgents who have risen in rebellion against their sovereign, expelled her Courts, established a revolutionary government, organized armies, and commenced hostilities are not enemies because they are traitors, and a war levied on the Government by traitors, in order to dismember and destroy it, is not a war because it is an “insurrection.”

Whether the President, in fulfilling his duties as Commander-in-chief in suppressing an insurrection, has met with such armed hostile resistance and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted. “He must determine what degree of force the crisis demands.” The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and authorized a recourse to such a measure under the circumstances peculiar to the case.

In other words, although Lincoln had the right to determine whether to recognize a state of belligerency existed between the Union and the CSA, Lincoln decided in favor of belligerency, de facto if not de jure, by instituting the blockade.

This was, of course, no different than the European position, which treated the blockade as evidence that the Civil War was a war between belligerents, not an insurgency, despite the “official” Union characterization.  Indeed, the Supreme Court itself recognized that its position was the same as Europe’s (p. 669):

It is not the less a civil war, with belligerent parties in hostile array, because it may be called an “insurrection” by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independence of the revolted province or State be acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of the Santissima Trinidad, 7 Wheaton 337, this Court said:

“The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war.”

See also 3 Binn. 252.

As soon as the news of the attack on Fort Sumter, and the organization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, to-wit, on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality,

“recognizing hostilities as existing between the Government of the United States of American and certain States styling themselves the Confederate States of America.”

This was immediately followed by similar declarations or silent acquiescence by other nations.

Conclusion

In short, the evidence does not support Posner’s claim that the Civil War indicates there is “a certain latitude for countries to use blockades against internal as well as external enemies.”  On the contrary, the reaction of both Europe and the Supreme Court to the blockade indicates a very different customary rule: namely, that the institution of a blockade is itself evidence that a conflict with a non-state actor is sufficiently serious that the blockading party must treat the non-state actor as a belligerent, not as an insurgent.

The importance of this rule for Israel’s blockade of Gaza is clear.  It does not indicate that Israel does not have the right to blockade Gaza.  What it indicates is that, for the blockade to be legal, Israel must recognize that a state of belligerency exists between it and Hamas.  Which means, in turn, that Hamas soldiers, as the armed forces of the non-state actor that is Gaza, are entitled to engage in hostilities with Israel’s armed forces, cannot be prosecuted for acts of violence against those armed forces that comply with the laws of war, and must be treated as POWs upon capture.

http://opiniojuris.org/2010/06/04/eric-posners-incomplete-editorial-on-the-blockade-of-gaza/

46 Responses

  1. Very nice post, Kevin – thanks this is really useful. On a similar position as regards the belligerent status of the CSA (thus making them a true subject of international law), see G. Acquaviva, Subjects of International Law: a Power-based Analysis, in Vanderbilt Journal of International Law, vol. 38 (2005), at 345.

  2. Kevin,

    This analysis is absolutely spot on. Let me repeat a bit my comment in the earlier ginormous comment thread:

    On the lawfulness, or not, of a blockade during a NIAC – states certainly have the ability to prevent the transport of weapons to a rebel group in their territory. However, unless there is sufficient evidence of state practice to support the right to blockade in a NIAC (and I don’t think there is) they can do so ONLY within the limits of their territorial sea, to which their sovereignty extends.

    The point of a blockade in IACs (and, pre-WWII, in ‘wars’) is precisely that it allows belligerent states to do something that they otherwise wouldn’t be able to do – to interdict ships belonging to third states on the high seas.

    The obvious problem with Israel and Hamas is of course that Israel is not the sovereign of Gaza, and therefore wouldn’t even have the right that would normally apply in NIACs to interdict ships entering the territorial sea, because the territorial sea of Gaza is not Israel’s to rule.

    At any rate, please note the implication of saying that parties to a NIAC have the right in international law to impose a blockade: that would mean that not only states, but also the rebels, would have such a right, as the law of armed conflict is based on equality between the parties. In other words, if Israel would have the right to impose a blockade against Gaza on the high seas, then so would Hamas have the (theoretical) right to blockade Israel, and stop and search American vessels, or what have you.

    Likewise, as you well note, if we consider Israel to have recognized the belligerency of Hamas by imposing the blockade, or if we would require Israel to do so in order for the blockade to be lawful, then Hamas fighters would at least in principle have a claim to combatant and POW status.

    And it is precisely because it recognizes the implications that the belligerent status of Hamas would have that the Israeli government maintains a deliberately ambiguous attitude on qualifying its conflict with Hamas, by saying that it is ‘in a state of armed conflict’ with it, without saying what kind of conflict it is. See, e.g., at http://www.mfa.gov.il/MFA/Government/Law/Legal+Issues+and+Rulings/Gaza_flotilla_maritime_blockade_Gaza-Legal_background_31-May-2010.htm.

    Finally, for the possible continuing relevance of the recognition of belligerency doctrine in modern international law, see e.g., Yair M. Lootsteen, The Concept of Belligerency in International Law, 166 Mil. L. Rev. 109 (2000).

  3. As was raised in the other thread, how do you explain the French blockade in the 1950s and the more recent maintained by Sri Lanka.  There were both NIACs and, so far as I understand, the insurgencies were not given belligerent status.

    This appears to blow a huge hole in the analysis, and provides evidence of state practice that an IAC is not required.  So please explain.

  4. EricD,

    Not to purport to answer for Kevin, but as I’ve said in my comment above, states are absolutely permitted to interdict foreign ships smuggling weapons to rebels in their own territorial sea, over which they have sovereignty, or to stop ships flying their own flag or flying no flag at all.

    As far as I am aware of the facts of the Algerian and Sri Lankan examples, neither France nor Sri Lanka intercepted ships of third states on the high seas – which is what you are legally entitled to do once you set up a blockade in an IAC. Please do provide us with any authority to the contrary.

  5. You have indeed answered my question from your previous post. Nevertheless, I cannot easily accept that Hamas terrorists should be granted a POW status just because Gaza is subjected to a naval blockade. If I understand correctly, your conclusions imply that the armed forces of a terrorist organization (Taliban??) controlling a territory, will be considered insurgents if they do not have access to a port. If they do, like Hamas, then all of a sudden they become legitimate combat forces.

    Perhaps the way out of that is what Randall himself writes: “It is thoroughly recognized in international law that those who operate at sea under the authority of an organized responsible government observing the rules of war may not be treated as pirates”.
    Do you really think that Hamas deserves that definition (responsible, etc.) just because it has access to a port? It looks to me like other factors should also be accounted for.

    Finally, there is another naval blockade that, I believe, merits you consideration. It is the Saudi naval blockade on Houthi controlled coasts in late 2009. Do you think that, consequently, the rebels army in Yemen should be granted a belligerent status ?

  6. Sure. I’ll be looking forward to Hamas “soldiers” wearing uniforms then.

  7. Marko,

    You are asking me to prove a negative.  I have no idea what vessels the French may have stopped in the 1950s.  Can you provide anything that they did not stop neutral vessels on the high seas?  Perhaps they did not have to because the blockade was respected.  If so, then what would be its status?

    Are you saying there was not a blockade in those cases, or that it was extra-legal?  As I understand, once a blockade announced and become effective, it is recognized as valid.  It comes down to the situation on the ground, not technical definitions of “war” from times where NIACs were not on the radar screen.  Armed conflict creates the possibility for a state to act in its sovereign capacity whether the other is an insurgent or belligerent.

  8. Kevin, I don’t think Israel denies that Gaza is a belligerent and NOT a participant in a civil war. Israel has disengaged from Gaza, no Israeli citizens live in Gaza, they have their own (terrorist) government and Israel has no intention of reclaiming the territory and incorporating it into Israel. This is not a Civil War, so the detailed analysis of the status of the Confederacy is interesting but useless.

    The relevancy of the Civil War cases is that a blockade is considered valid when the territory subject to the blockade never quite joins the full membership of nations—just like Gaza, which falls somewhere between insurgent territory and de facto independent State.

  9. It MUST be the case that Gaza exists as a quasi-State that qualifies as a belligerent in an international conflict, or else Israel’s ability to defend itself as any other nation would is unduly restricted until some pro forma recognition of Gaza as a State takes place. Even though there is no formal and universally recognized method for achieving such status.

    International law is not this irrational to allow the most violent and dangerous territories—those governed by terrorists and largely irresponsible as full members of the international community—get MORE impunity to act without consequences than full States would otherwise.

  10. Finally, for the possible continuing relevance of the recognition of belligerency doctrine in modern international law, see e.g., Yair M. Lootsteen, The Concept of Belligerency in International Law, 166 Mil. L. Rev. 109 (2000).


    Admittedly, I have not yet looked up that source, but I continue to think that that is the weakness of the argument: Do people still recognise people as belligerents? It is my understanding that no such recognition has taken place for decades, that the doctrine has essentially fallen into desuetude. It would have been nice if the OP had spent a few sentences refuting that idea.

  11. Is the declaration of intent of the blockade runners of import here?  Surely, not every ship intercepted during previous naval blockades (the American Civil War, for example) was done within territorial waters.

    This isn’t a case of Israel intercepting a ship with a presumption of innocence on the high seas.  There was no secret where they were headed or for what purpose.

  12. This is not a Civil War, so the detailed analysis of the status of the Confederacy is interesting but useless.

    This is a valid point, but what the European response to the Union blockade does suggest is that Israel cannot have its cake and eat it by imposing a blockade but not according Hamas belligerent rights.

  13. Kevin and Marko,

    I am unaware of any source of international law that grants absolute equality or “quasi-State” status to a non-state actor in non-international armed conflict.  Since Westphalia, non-state actors, as such, have no right to engage in war.  Politically, of course, states will sometimes “recognize” a non-state belligerent party and muddy the waters, as Russia did with South Ossetia and Abkhazia.  What is the legal support for your position?  What law, customary or conventional, supports it?  To my knowledge, customarily, leaders of a non-state belligerent party always remain subject to prosecution for treason or other loyalty offenses, though their fighters commonly are not. 

    Further, I believe your binary belligerent-insurgent thesis is inaccurate.  Insurgents are not always “common criminals.”  It depends upon their level of organization and the intensity of hostilities.  If a stark belligerent-insurgent dichotomy existed, one in which the former entitles fighters to POW status and the latter just to prosecution for a domestic crime, there would be no need for the second protocol to the Geneva Conventions governing armed conflicts with or between sufficiently organized non-state groups.  That protocol does not discuss the concept of a POW, does not limit the use of blockades (or, more accurately, port closures), and creates certain minimal international legal obligations on all parties to a conflict within its terms.  Related to this event, it does, however, provide that:

    Art 18. Relief societies and relief actions

    1. Relief societies located in the territory of the High Contracting Party, such as Red Cross (Red Crescent, Red Lion and Sun) organizations may offer their services for the performance of their traditional functions in relation to the victims of the armed conflict. The civilian population may, even on its own initiative, offer to collect and care for the wounded, sick and shipwrecked.

    2. If the civilian population is suffering undue hardship owing to a lack of the supplies essential for its survival, such as food-stuffs and medical supplies, relief actions for the civilian population which are of an exclusively humanitarian and impartial nature and which are conducted without any adverse distinction shall be undertaken subject to the consent of the High Contracting Party concerned. (emphasis added)

    In other words, states have been careful to protect their sovereignty in non-international armed conflict.

    I agree that there is support for the “belligerency” concept historically, as cited by Kevin, and in the first 1977 Additional Protocol, which extends the rules on international armed conflict to wars against colonialism, alien occupation, and racist regimes.  Articles 41-44 then grant POW status more liberally than the third Geneva Convention, though some major military powers have made various reservations or declarations in this area and the U.S. won’t ratify the treaty in part because of this provision.  To my knowledge, in practice, states rarely admit that this protocol has been triggered in a particular internal or other non-international armed conflict, though some will apply certain of the rules anyway.

    Do you contend that the first protocol defines the conventional or customary scope of what you call “belligerency?”  Does the FARC in Colombia have “belligerent” status under your understanding of the concept?  

    My point is simply that the spectrum of armed conflict is broader than the insurgency/belligerency thesis you offer.  Israel might attempt to justify its actions as simply a port closure in a common article 3 and potentially second additional protocol armed conflict.  Doing so does not recognize or admit the existence of a first additional protocol armed conflict.

    It seems to me that there is room for debate as to whether this should be considered a first or second additional protocol armed conflict.  In either, though, Israel is not prohibited from blockading or closing ports, or from upping the inspection regime in them or in surrounding territorial waters. 

    Again, I am not asserting a position or taking sides in the debate. I am just trying to make sure the boundaries of proper argument are established.  Respectfully, I do not think you are presenting an accurate picture of them.

  14. I think Prof. Posner’s characterization of the Supreme Court opinion as “ambiguous” is pretty fair.  The Court shifts back and forth between characterizing the Confederates as “insurgents” versus “belligerents” and basically refuses to recognize the sharp dichotomy which Prof. Heller postulates.  Note that, although there were no treason prosecutions (much less murder prosecutions for ordinary combat operations) after the War, the United States government did not to the best of my knowledge formally renounce the right to bring such prosecutions, nor did any court rule against such prosecutions.  (The United States government, after some hemming and hawing, did respect the terms of the surrender at Appotomax, which exempted Lee and everyone under his command from prosecution.)  So I think it would be fair to say, as Posner does, that the United States has never accepted the Heller analysis on this topic.
    It would be more persuasive if the British government, after the War, had taken the position that any trial of Jefferson Davis would require the Union to restore all British prizes captured under the blockade.  Did they?  If not, it suggests that the American position has been accepted, and any British position to the contrary adopted during the War was abandoned.

  15. I share John’s concerns above.  I don’t have any special view on the use of “belligerent” or “belligerent rights” or “belligerency” in the Civil War, but insofar as the discussion is seeking to draw a distinction today between “insurgents” and “belligerents,” I don’t think belligerent has a fixed meaning in the law these days.

    I view it – and think it is generally viewed today – as a holdover term from an earlier period in which jus ad bellum concepts such as belligerency, the law of neutrality, etc., were mingled without a lot of the modern distinctions with jus in bello.  That does not make it no longer useful as a term, in part because discussions of terrorism and the status of terrorist organizations indeed cross lines between jus ad bellum and jus in bello.  I use the word – it still has currency, if only because it is part of the language of the period of the Hague Regulations, but I don’t think it has a precise meaning.  Sometimes it refers to jus ad bellum, sometimes to jus in bello; sometimes it is really only meaningful as describing a side, other times an individual; and it has a special role in the historical maritime law of neutrality, which differs in important ways from the law of land warfare.

    In any case,  contemporary law, terminology aside, says that insurgency is a domestic law issue, on which international takes no position, one way of the other.  It can and is criminalized by domestic law, and insurgents have no protection as such in international law (leaving aside specially contested questions such as AP1, art. 4) against prosecution by the domestic sovereign.  Recognition of a belligerency by other sovereigns has no impact on the domestic law status of insurgents in a domestic law setting, and confers no legal rights on them.
    I don’t have any expert view on the Civil War, but I agree pretty much with John’s comment above.  Insurgent is not a legal term; belligerent is a legal term with many meanings, some historical and some not.  They are useful terms, but not as some fixed legal distinction.
  16. EricD,

    I am most emphatically not asking you to prove a negative, but rather to prove an affirmative assertion. The argument goes like this:

    (1) Classical, pre WW-II international law allowed states to impose a blockade outside their territorial waters and thus limit the freedom of the high seas, but it did so in case of war, defined as purely inter-state conflict;

    (2) Likewise, classical international law did not regulate internal conflicts AT ALL, save in the cases where the state fighting an insurgent and/or third states recognized the belligerency of the insurgent. The recognition essentially rested on purely political considerations, and therefore the regulation of internal conflict was entirely arbitrary. Thus, as Kevin well argues, the belligerency of the Confederacy during the American Civil War was explicitly recognized by third states, who proclaimed their neutrality, and implicitly by the Union. However, belligerency was not recognized for example in the Spanish Civil War – a conflict at least as brutal as the American one, but which went entirely unregulated. This was indeed one of the primary reasons why CA3 was adopted in Geneva.

    (3) Kevin’s basic point is that the lawfulness of the blockade during the American Civil War cannot be taken as authority for the general proposition that states can impose blockades in non-international armed conflicts, since belligerency was recognized in that particular case. Of course, the concept of NIAC was itself not defined until 1949.

    (4) Thus, it is for those who argue that blockades – which were once permitted only in war, a concept today replaced by IAC – are allowed in NIACs to affirmatively show their case.  This is what you have to do, and my further point was that if you actually manage to prove that such an authority exists, then this authority would also be enjoyed by the rebels, and not just by states. As a matter of policy, this is not something that I – not to mention states – would find desirable.

    John,

    I’m not sure whether we actually disagree. Neither Kevin nor I argue that non-state actors are equal to states. Rather, in NIACs they are equal in the rights that IHL grants to them. Historically, the concept of  the recognition of belligerency has been used to extend the scope of these rights to those which existed in ‘war’, now IAC. (Mind you, this is NOT a recognition of statehood, as in Abkhazia or South Ossetia, just of belligerent status. The UK etc did not recognize the statehood of the Confederacy, but they did recognize its belligerency.)

    Belligerency is entirely a customary concept. It is not at all enshrined in modern IHL treaties, and its continuing existence is questionable. The article I cited above argues that it has not fallen into desuetude, but this is of course something that reasonable people can disagree on. The closest modern equivalent is the CA3 possibility to apply other parts of the Geneva Conventions by a special agreement between the parties.

    As for your specific question regarding FARC, to my knowledge neither Colombia nor third states have recognized its belligerency, though that possibility was entertained.

  17. Marko,

    I think Kevin makes a stronger point than you do immdeiately above.  My point was that existence of belligerency or armed conflict does not confer complete “rights” on a non-state belligerent or fighter.  The leaders of the Confederacy in the U.S. Civil War were ultimately pardoned, but could have been prosecuted.  That belligerent parties have equal duties to observe constraints on war does not necessarily confer absolutely equal rights to conduct it.  (It might matter if they win or lose!)

    In the Geneva Coventions and their additional protocols, states party undertake to respect these treaties “in all circumstances.”  Thus, I believe states are always free to observe rules of international armed conflict in non-international armed conflict, either by agreement or unilateral declaration.  In second additional protocol conflicts, for example, they may, but are not required by international law to, grant POW status to the fighters of a non-state party.

    I included you in my salutation because you stated Kevin’s analysis was “spot on.”  Kevin’s dichotomous view of belliegerency-insurgency was key to his analysis of the legality of the “blockade.”  My point was simply that a “blockade” is not the only way to view what Israel is doing, and that closing the ports in this way does not eliminate the possible existence of a form of non-international armed conflict short of “belligerency” as described by Kevin — such as those the second additional protocol describes.

  18. John,

    Oh, but so sorry, there is no way to avoid the blockade issue here. It is Israel itself which says that its interdiction of ships is based on a naval blockade, as a legal institution. And thee would be no other way to do it, because Israel is NOT closing the ports in Gaza, or searching ships in its territorial sea (which it arguably could do if it was still the occupying power, which it claims it is not, and probably is not). Rather, it is stopping and searching ships of third states on the high seas.

    Let me articulate more precisely what I mean by the initial lawfulness, vel non, of the blockade – how it relates to the sovereignty of other states. It is precisely the law of neutrality that is the raison d’etre behind the whole concept of a blockade. It is Turkey’s sovereignty that Israel may have violated by seizing a Turkish flagged ship on the high seas and killing Turkish nationals in the process, contrary inter alia to Art. 110 UNCLOS. Under the circumstances, it is only a blockade, as a legal institution, that can provide Israel with the right to do what it did.

  19. Kevin, your postings on this subject — and the excellent responses — are in substance and tone an exemplar of legal blogging, kind of like Marty Lederman’s prior efforts.  I’m a bit skeptical of the Civil War’s import for present circumstances, but I gather the question was fairly presented by Eric’s editorial (to the extent I can see it, anyway), and these exchanges have been *very* constructive.  Thanks.

  20. Marko,
    Interesting comments. I’m carrying over some (slightly edited) comments from the other thread.
    First, here’s another example of a non-international blockade: the American Revolutionary War (Britain blockaded the colonies).
    Second: Yes, the Civil War case suggests that the price of expecting international cooperation with a state of blocakade is recognition of a status of belligerence. That means that Hamas would have the rights and duties of a belligerent by virtue of Israel’s declaration of a maritime blockade. But for reasons stated above, I am no longer certain this is true. The law focuses these days, I think, on the fact of armed conflict rather than the status of belligerence (and I echo Ken’s observations about the fluidity of the meaning of belligerence).

    Even if Israel is recognizing Hamas’s status as a belligerent, it’s far from clear that it means what you and Kevin take it to mean. For instance, the Third Geneva convention speaks about the “armed forces of a Party to the conflict” not of belligerents.  I don’t see why recognizing Hamas as a belligerent makes all Hamas terrorists “armed forces” of a “Party to the conflict” with the meaning of GCIII.

    Incidentally, even if Hamas were to declare a maritime blockade, and it were a belligerent, it would be unable to meet the legal requirement of “effectiveness” and thus Hamas would not be legally entitled to stop and search etc. So even if Israel is recognizing Hamas’ belligerent status, it’s not clear there’s much danger there. (Of course, additionally, under the rules of armed conflict, Israel has the right to sink Hamas ships on sight.)
    Third: There is a recognized right of blockade in armed conflict. There is no custom suggesting this right is limited to IAC. Such as they are, the documents, limited practice, etc. appear to show the opposite. Yes, the rules of blockade emerge from a time when there was no terminology of IAC or NIAC: there was only war. But this, I think, cuts against you. The terminology of AC was meant to expand rather than contract the cases where the rules of war applied, and even in the old days, it was apparently possible to have a NIAC that had belligerents. Thus, while, It is true that if we begin with the assumption that blockade is limited to IAC, it may wrongful to stop ships on the high seas in the absence of IAC, there is no reason to begin with that assumption. Rather, once there is a blockade, the right to stop and board ships in international waters is explicitly preserved by article 9 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation as well as the customs of war.
    One last point regarding the question of interdicting ships in Gaza’s territorial waters: those who (incorrectly) claim that Israel occupies Gaza would have to accept an Israeli right to interdict ships in those waters on the basis of Israeli control.

  21. Marko, you’re right, this is hectic. I’m double-posting in order to move this to the new thread:

    I don’t think you are right about IAC replacing war. I think the crux of the Civil War discussion above is that a civil war could become a “war” as long as the state was willing to accept the “belligerent” status of the rebels. The point then, is that IAC was the usual but not exclusive case of war. War is broader, not narrower, than IAC.

    Additionally, modern law of war has become somewhat modular, with some arguing for mixed status conflicts, where some but not all IAC rules apply to some conflicts. Regardless of whether you accept this legal conclusion, I think this reinforces my point. Not only is war broader than IAC, AC is broader than war. To the degree we have any evidence, blockade is a law of AC, not IAC.

  22. The Prize Cases quite explicitly regard belligerency and insurgency as over-lapping categories.  If the President needs law-of-nations war powers to put down an insurrection, he can use them.  But there’s no law-of-nations gotcha! here.  An insurrection might be so large that the insurgents are belligerents, but they are still insurgents.

    The clearest statement of this comes when the Court rejects the claim that property belonging to loyal citizens in rebel territory could only be seized in accord with ordinary constitutional requirements.  The Court ridiculed the idea that “the party belligerent claiming to be sovereign cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may.”  Instead, the Court wrote, “the belligerent party who claims to be sovereign may exercise both belligerent and sovereign rights”—”sovereign rights,” here, being the right to treat the insurgents as criminals.

  23. Avi,

    But would you then accept, in theory at least, that if Hamas could somehow manage to build a navy and effectively blockade some Israeli ports, that it would be lawful for Hamas to stop and search the shipping of third states for contraband? To my mind it is unlikely in the extreme that states would be willing to accept the authority of non-state actors to set up blockades in NIACs – and if they can’t do it, then so can’t the states fighting the insurgents.

  24. Marko,

    What about the French, Sri Lankan and Saudi blockades?

    Also, the San Remo Manual says it applies to parties to an armed conflict, without distinction.  Article 5 says:

    How far a State is justified in its military actions against the enemy will depend upon the intensity and scale of the armed attack for which the enemy is responsible and the gravity of the threat posed.

    An armed conflict requires only one state and an enemy.  It need not be another state as I read this.  The focus on IAC/NIAC is illusory and misses the reality.

    The apparent fact that there have been blockades in NIACs, which you tried to explain away by requiring proof from me, requires, to me, that you negate the legitimacy implied by their very existence.  In other words, we may assume they were effective and legal and you have not met your burden to show otherwise.

  25. But does Israel really care any more? Especially now that it seems Hamas is even refusing to allow Israel to hand over the items that were on the ships as aid?

    The debate is interesting, but, cards on the table, why should Israel care about trying to comply with international law. Someone commented in the Wall St Journal earlier this week that Israeli officials commented to him that the level of effort people internally seek to exert to make the world happy is significantly diminished.

    Hamas is dedicated to the destruction of Israel-not just wiping the state off the map, but the Jews who live there. When you’ve survived annihilation once at the hands of the Nazis, you neither forget the fact that your survived nor that while the level of persecution by the Nazis steadily increased the nations of the world talked and talked and failed to act.

  26. Eric,

    (1) As for the French, Saudi, and Sri Lankan blockades, could you please give us some more facts about them other than their mere existence? Were they declared? What were their remits? Did they involve the interdiction of the ships of third states outside the interdicting state’s territorial waters? As I tried to explain several times, there was absolutely nothing preventing, say, Sri Lanka from stopping ships carrying arms to the Tamil Tigers, so long as it did so within its own territorial waters. This is not necessarily a blockade in the classical legal sense, and this is not what Israel has been doing.

    (2) As for Art. 5 of the San Remo Manual, I fail to see its relevance. It deals with the jus ad bellum concepts of self-defense and ‘armed attack’, not the jus in bello concept of ‘armed conflict’, or more precisely IAC and NIAC.

    (3) As for the (of course non-binding) San Remo Manual generally, its scope of application is limited to an ‘armed conflict at sea.’ This formulation was deliberately chosen by the authors to potentially encompass both IACs and NIACs, but in fact the rules in the Manual were developed almost exclusively from practice pertaining to IACs. If I may quote from the Explanation, the commentary accompanying the Manual:

    “[In] the naval context, any clash between the naval forces of two or more States may be said to be an armed conflict within this definition. However, it should be noted that although the provisions of this Manual are primarily meant to apply to international armed conflicts at sea, this has intentionally not been expressly indicated in paragraph 1 in order not to dissuade the implementation of these rules in non-international armed conflicts involving naval operations.”

    L. Doswald-Beck (ed.), San Remo Manual, CUP 1995, at 73.

    The Manual is not, and does not purport to be, an authoritative statement of the law as it pertains to NIACs. All it does with regard to NIACs is to encourage the application in such conflicts of the more extensive rules developed in IACs. Please read the Explanation’s discussion of blockades (at 176 ff) and tell me if there’s anything there even remotely referring to NIACs.

  27. In the case of Hamas, how can a non-recognized armed group in a stateless land be granted the equivalant status of a government military simply because Hamas attacks Israel?

    So, all any terrorist group has to do is attack a Nation State and if said Nation State dares to fight back, the terrorist group is elevated, automatically by the Nation States’ defense of itself, to equal status under the law.

    I think I have come to the conclusion that international law, particularly that which deals with the rules of war, was written by the insane.

  28. When used with regard to individuals, “combatant” and “belligerent” today are interchangeable though combatant is more widely used. Before 1949, combatant had a different meaning.

    There are three distinct issues:
    Who is a “privileged belligerent” and may not be criminally charged for engaging in combat.
    Who is protected by the Third Geneva Convention as a POW.
    Who is subject to targeting with lethal military force.

    Since the Hague Regulations, it has been clear that combatant/belligerent privilege is given to members of the regular armed forces, militia incorporated into the army, unincorporated militia meeting the “four part test”, and levee en masse. Article 4 of GC III includes these privileged belligerents and adds certain classes of civilians accompanying the army as those given protection as POWs.

    Those who may be targeted with lethal military force include privileged belligerents plus members of armed units of non-state parties to a conflict who engaged in continuous combat function, and civilians directly participating in combat. These latter two categories are explicitly not entitled to combatant privilege or to Geneva protection and may be prosecuted as criminals.

    There are then special cases, like spies and saboteurs who are unlawful belligerents who may be prosecuted in both criminal and military courts. That is, belligerent has other special meanings to particular cases.

    When you assert that a blockade assigns “belligerent” status to the enemy party being blockaded, this certainly does not imply that anyone fighting on their behalf automatically gets combatant privilege or Geneva protection. Each status is governed by the Hague Regulations or Geneva Conventions (which have no reference to blockades in the relevant articles). Even when a party meets the criteria, the individuals and units engaged in combat or captured have to meet the additional criteria previously mentioned.

    The example of the Civil War makes it clear that to the European powers, the assignment of “belligerent” status to the CSA triggered a group of legal options (declaring neutrality to the conflict, engaging in peaceful trade with both sides, building ships of war paid for by the CSA, …) that had nothing to do with either privilege or POW status. That is, the belligerent status of a party to a NIAC does not confer belligerent privilege on their armed forces.

    If the blockade officially grants the Hamas government in Gaza belligerent party status in international law, then Israel would no longer have recourse in international law against Iran, Syria, and Lebanon for smuggling rockets and weapons into Gaza. That is the sort of thing a third party can do when there is a state of belligerency. In contrast, the US can and does try to recover money damages against countries like Libya when they support civilian criminal acts, as we did with the Lockerbie bombing. Absent a state of belligerency, anything belligerent act Hamas engages in would be a criminal act.

    Nobody imagines that Israel would have ever recovered damages from Iran or Syria anyway. So admitting that Gaza is a belligerent is meaningless. Individuals captured during this NIAC can still be prosecuted as criminals unless they could make some credible claim that they met the criteria of Article 4 GC III and only after they overcome that hurdle do we have to worry about whether the conflict is IAC or NIAC and meets the Article 2 criteria.

  29. By the way, to add to my own comment of:
    So, all any terrorist group has to do is attack a Nation State and if said Nation State dares to fight back, the terrorist group is elevated, automatically by the Nation States’ defense of itself, to equal status under the law.

    I’m speaking in regards to the US armed conflict against the Taliban and Al Qaeda which has been determined to be a NIAC by the Supreme Court I believe (it may have been a lower court but I’m not sure).
    By the logic presented in this article about Israel’s blockade, it would seem that in order to fight back against a group like Al Qaeda, that Al Qaeda would have to be accorded the same status as the US Military.
    It seems these laws have the unfortunate side effect of hampering those who follow it to the benefit of those who don’t, hence my insane comment.
    And if an Insurgent is a criminal and not any type of combatant (even a non-privileged one, if there is such a thing) how then can a Military fight against them?

    This ties into the current CIA Drone policy and the Obama Policy to arrest possible Al Qaeda operatives when captured on US soil.

    How can they be a valid military target but only be a criminal upon capture?

    And the GCs don’t state that a captured prisoner is only a POW.  There is certainly non-POW status for detained combatants.

    Though, once again, the GCs fail to clarify what that is to the same level they do for POW status.

    Frustrating overall, I must say.

    Thanks for this article and these discussions.  More knowledge is always a great thing.

  30. I have another question: suppose that an Iz a-Din al-Qasam member lands on Australian/US/UK/etc. soil and the authorities attempt to prosecute him. What do you think of the following line of defense?

    1. Israel imposes a naval blockade on Gazan coasts
    2. Therefore I should be considered as a member of a legitimate armed force
    3. If I am caught in Israel, they should confer upon me the status of a POW.
    4. It thus does not make any sense that you would file charges against me for being a member in a terrorist organization.

  31. Marko,

    We agree completely about the significance of a blockade to the rights of third parties (or neutrals).  There are other circumstances under which a state may board the vessels of third parties.  See e.g., Art. 111 of the UNCLOS.  It depends a great deal upon the legal status of the waters in which it takes place.  I have seen references to “international waters” for the location of this incident but have no firm details on its precise location and do not trust the media to know the difference between the high seas and a contiguous zone. 

    You and I appear to continue to disagree about the ultimate legal significance of the language a state uses to describe its actions to the legal analysis of those actions. That Israel has called its actions a blockade does not mean that its actions cannot be otherwise legally classified or justified.   It is not bound by what it intially claims as a legal description or justification.  The 2003 U.S. invasion of Iraq provides but one example of a state changing its legal analysis or justification when confronted with international criticism.

    It may be most proper, under the circumstances, to classify Israel’s action here a blockade.  I have not stated otherwise.  I merely took issue with the way the debate was being framed by Kevin.  Perhaps he assumed facts I am unwilling to assume in terms of the incident, the status of Gaza — most certainly of Hamas.  That might explain a bit.  You appear to assume some sort of independent status of Gaza after IDF withdrawal, but I am not sure what exactly, or of its relationship to the Palestinian Authority.

    Whether this purported “blockade” could be properly classified as something else would depend on Gaza’s international status (either in conjunction with or spearate from that of the Palestinian Authority), the proper status and classification of the Hamas organization and its fighters and their relationship to the Palestinian Authority (I do not see any discussion of Hamas on the Palestinian U.N. Observer Mission website), and the proper classification of the waters in which this incident occurred.  Again, I do not possess sufficient details and have been unable to locate them in a quick internet searches.  Many still say that Israel occupies all Palestinian territory in spite of its withdrawal from Gaza.

    The bottom line is that this is no easy analysis.  We do no justice to the situation by oversimplifying any aspect of it, legal or factual. 

    Again, I make no assertions of the proper result, but merely wish the legal framework for the debate and any implicit assumptions to be clearer and more accurate.

  32. The boundary between IAC and NIAC is not as clear as has been asserted. In reverse chronological order:

    On 9/10/01 the Taliban were the leading group in the government in control of 90% of the land and all the major cities of Afghanistan, a recognized country, member of the UN, and signatory to the Geneva convention. This governement was not recognized by the US, but Article 4  of the Third Geneva Convention applies protection to “(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” Thus while the Taliban are a non-state party (as the Republicans were and the Democrats are non-state parties in the leadership of a different party to the conflict), the government they led was a state party and the Geneva Conventions make it clear that recognition is irrelevant. Initially this was an IAC.

    At some point the government led by the Taliban lost effective control of Afghanistan and was replaced by a different government. The old government went into exile in the Tribal Areas of Pakistan. However, they remain a party to the conflict and field armed forces that engage regularly in combat with NATO forces. Arguably, the IAC transitioned to a NIAC when the conflict was no longer between the US and Afghanistan, but nobody has suggested that there are any rules that cover such a transition.

    In Vietnam, the US aided South Vietnam in a NIAC conflict against what superficially was supposed to be the Viet Cong, a non-state party. In reality, the VC were replaced by the regular armed forces of North Vietnam who infiltrated and were supplied through the Ho Chi Minn Trail in nominally neutral Laos. Thus what was actually an IAC was officially an NIAC because of an transparent pretense.

    In Korea, the government in effective control of the Northern zone under occupation by the Soviet Union invaded the Southern zone under occupation by the US. Neither the Northern nor the Southern government were internationally recognized. While the entire peninsula had recognized boundaries, Korea had been under foreign occupation for so long that no country of Korea had a plausible legal existence. After a while, the armed forces of the DPRK non-state party were defeated and were replaced by what were superficially “volunteers” but in reality were the regular army units of the PLA, from the part of China in effective control of the PRC, a unrecognized government occupying a large part of a country officially ruled by a different government that actually controlled only the island of Tiawan. This war never ended, although a cease fire was agreed. Today North Korea is a recognized country, so this is an example of an NIAC that transitioned to a IAC. However, during the active part of the Korean War, the North was treated as a belligerent no matter what its status as a state or non-state party may have been.

    After Germany conquered France, it established Vichy as the capital of a nominally neutral but actually allied French government. The US and Britain alternately recognized Vichy and/or the Free French as the government of unoccupied France. The British attacked and sank the French fleet in Oran. Later the US invaded Algeria as part of Operation Torch, and then the Germans took control of the Vichy part of France proper. Vichy was treated as a real or a not-real state by both sides depending on convenience, and the British attack on the French fleet became, depending on your point of view, a forgotten act of aggression or obvious self-defense.

    During WWI, T E Lawrence (of Arabia) was a serving British officer who became part of the leadership of a non-state party (Arab forces under the command of Emir Faisal) who were revolting against the Ottomans during a period of general IAC. So we have an IAC as regards Britain and the Ottomans, and an NIAC as regards everyone except Lawrence himself in the Arab forces. When Lawrence operated out of uniform, he was an unlawful enemy combatant (a spy and saboteur).

    So you don’t have to go all the way back to the Civil War to find examples where the supposedly bright line between IAC and NIAC becomes hopelessly fuzzy and the question of who is a state and a non-state party becomes controversial.

  33. You and I appear to continue to disagree about the ultimate legal significance of the language a state uses to describe its actions to the legal analysis of those actions. That Israel has called its actions a blockade does not mean that its actions cannot be otherwise legally classified or justified.   It is not bound by what it intially claims as a legal description or justification.  The 2003 U.S. invasion of Iraq provides but one example of a state changing its legal analysis or justification when confronted with international criticism.
     
    Without disputing the technical accuracy of that, don’t you at least find it troubling?
     
    Suppose state S takes action A, which it categorizes as a kind of action of type T. There are particular circumstances whose existence would justify T-actions (call them “T-justifications”). S asserts that a set of circumstances C exists, which amounts to T-justification, and thus justifies A.
     
    But in the face of disagreement or argument that C fails as T-justification, S says that A is actually a kind of action of type X. Call “X-justifications” those circumstances, or reasons, that would justify actions of type X. Unless X-justifications are coextensive with T-justifications, the result is that S did A even though they had at the time no justification for doing so. They had no justification at the time. I am, of course, assuming that (1) one acts on the basis of reasons purporting to justify one’s conduct, because one believes one’s conduct to be the type of action justified by those reasons; and (2) if one acts without justifying reason, one’s act is unjustified, at least in the case where one explicitly acts for reasons.
     
    To come back at a later date and try to recategorize an action one has already undertaken for specified reasons (on the understanding that those reasons justified one’s action) is essentially to behave as though one need have no justifying reasons for acting. Justification then is just shadow-play. Surely that’s not a satisfying outcome?

  34. The British during the Second Boer War instituted a blockade of their own colony in South Africa to prevent shipments of arms from reaching the Boer insurgents.  This is a conflict between the British and an separate ethnic group occupying territory that they regarded as a separate country but which was not widely recognized as such. Of course the cause and conduct of that conflict is entirely different, but blockading your own territory to choke of weapons to inhabitants of a belligerent ethnic enclave is a much closer match to Gaza than any more recent conflicts and probably better than the Civil War.

    [That said, I must admit to not knowing as much about the Boer War as I do about incidents in American history.]

  35. Two recent, or decades old, depending on your age, examples of recognition of belligerency – France and Mexico recognizing the FMLN in El Salvador on Aug 28, 1981 and Bolivia, Colombia, Ecuador, Peru and Venezuela recognizing the Sandinistas in Nicaragua in June 1979 (Von Glahn, Law among Nations, p.90-91)

  36. Marko,

    I hope you’ll excuse the delayed response.

    Answering your question about the legality of a hypothetical Hamas blockade really requires answering three others:

    1. Did the status of belligerent in the old days give non-state actors the right to declare and enforce maritime blockades? I don’t know of any case directly on point, but the general statements in the treatises would seem to say yes because belligerent status gave equal rights of naval activity to both parties.

    2. Has customary international law preserved the rule that the price of a state declaring a maritime blockade against a non-state actor is recognizing the non-state actor’s “belligerency” status? There’s no clear indication on this, but I would guess that the answer is no. The formal gradations of rebellion-insurgency-belligerency appear not to exist anymore and the formal status of belligerence similarly appears extinct (although I am aware that some have argued otherwise). Normatively, it’s not clear to me either why we would want to retain a rule of required recognition of belligerent status in a world where belligerent status has lost much if not all of its meaning.

    (Incidentally, some of the recent cases above demonstrate the fading away of the status of belligerence. If memory serves, the FMLN and Sandinista cases, like the recent Chavez-FARC case, are all cases where the parties in question did not refer to traditional belligerence law, but instead asserted rights to fund groups on the grounds of their alleged belligerent status. At least in the Nicaragua case, the ICJ seemed unimpressed, and I’m still not sure that the declarations were legal and not political.)

    3. If we answer question 2 in the affirmative, do the rights of non-state belligerents in modern law still include the right to impose maritime boycotts? Here, I confess that I have no answer. It seems clear to me that some of the rights of non-state belligerents have been chipped away. For instance, non-state belligerents had the right to receive aid for other states without the aid being considered an unlawful interference in the sovereingty of the belligerent state. Today, however, there is significant authority criminalizing aid to terrorist organizations (inter alia, the International Convention for the Suppression of the Financing of Terrorism and Security Council Resolution 1373) that would seem to forbid such aid where the non-state actor is a terrorist organization like Hamas, even if the actor is also a belligerent. But there’s no modern practice – to the best of my knowledge – of any non-state belligerent attempting to declare and enforce a blockade, so it’s difficult to say whether this prerogative survived or died.

    So, overall, given my results above (yes, no and I don’t know) I think my overall answer to your question is no (I’d need a yes to all three questions), but I’m ready to be convinced otherwise.

    Avi

  37. Avi,

    Thanks a lot for the response. I’m not sure whether you argument actually follows a logical progression. Let’s leave aside the whole issue of belligerency, and recognition thereof, which may or may not transform a NIAC into an IAC. Then the question becomes this: does the law of armed conflict recognize the right of parties to a NIAC to set up a blockade?

    Whether the answer is ‘yes’ or ‘no’, it simply cannot be that a state party CAN set up a blockade, but that a non-state party CANNOT. This is now a question of principle, entirely separate from the facts of Gaza, Hamas, terrorist non-state actors or not, etc. Again, to my mind, it is exceedingly unlikely that states have recognized the right of e.g. a bunch of rebels to stop and capture their shipping, whether on the high seas or not.

    Rather, it makes much more sense to me to say that a state party embroiled in a NIAC can exercise its sovereignty to the fullest within its territorial waters, including by searching ships for contraband, but that it cannot do more than that. Similarly, that state can prosecute rebels against it for the mere fact of their rebellion, but it does so by virtue of its sovereignty (and its success or failure in battle), not because IHL gives it this right, while denying it to the rebels.

  38. “a state party embroiled in a NIAC can exercise its sovereignty to the fullest within its territorial waters, including by searching ships for contraband, but that it cannot do more than that.”

    But now we are back to claiming that the Union blockade during the Civil War was illegal, which is not the law.  The whole belligerency/insurgency dichotomy was Prof. Heller’s attempt to distinguish the Civil War precedent, so we can’t leave it aside.  If belligerent status has lost its meaning, then Prof. Heller’s argument collapses–personally, I found Posner’s reading of the Prize Cases  more persuasive anyway, but never mind–and we are left with the rule that states may indeed impose blockades against non-state actors.

  39. Anon,

    If an act is legally justified, then it does not matter whether the perpetrator of the act gave the proper rationale for it for it.  Perhaps the 2003 invasion is not the best example given continuing doubt regarding its legality.  If an act is legal under a proper, objective analysis of the facts and applicable law, then the accuracy of the explanation for it does not affect its legality.  Thus, I care very little about what a state says it is doing and much more about what it has actually done ad the proper legal analysis of it.  It may not have given an accurate or thorough explanation for a variety of reasons, including a simple misunderstanding of the law.

    In prior discussions with Marko, we debated the import of a state’s claim of self-defense.  My point then was that a state may say it is exercising its right of self-defense against a non-state actor without thoroughly explaining why that justifies the breach of territorial sovereignty of the state where that actor is located.  That does not mean that self-defense rather than necessity or something other legal doctrine is what justifies that breach of sovereignty.

  40. Marko,

    I’ve been reading all of the posts on this website and all of the comments they’ve generated (to which I’ve contributed a few) and I hope you, or one of the other contributers who run this website, can answer a question that bothers me.

    Why does the status of a party in conflict with a sovereign nation have any bearing upon the legal recourse the nation has to defend itself?

    I don’t understand why, in this case Israel – though it could be the US in its war on terror – the status of the party the nation is in armed conflict with should determine how the nation is allowed to defend itself.

    Maybe my iterpretation is incorrect but it just seems from everything I’ve read here that the more outside the bounds of law the other party to the armed conflict is the more the nation’s hands are tied, the fewer legal recourses are made available.

    That just seems backwards and I would really like to understand why the law is structured in this manner.  It seems our current world is being forced into a laws of war that come from a much older age.

  41. CharlesD,

    Superimposing progressive views of international human rights law and limiting the scope of humanitarian law in armed conflict leads to the result you describe.  The law is not necessarily structured in this way.  There is much disagreement about not whether but the extent to which human rights law applies in armed conflict.

    While I do not wish to speak for him, from debating Marko in numerous contexts it appears he is one of those who believes that both human rights and humanitarian law apply equally in armed conflict unless there is a conflict.  If a conflict exists, then the more specific rule applies.  This is a common way to resolve overlapping legal rules, but it assumes that both might apply equally.

    Others, like the U.S., believe that humanitarian law is the primary law that applies in armed conflict.  While they agree certain international human rights protections continue to exist, such as protections from genocide and crimes against humanity, they do not believe that all gaps in the express protections of international humanitarian law are filled by international human rights law — particularly in extraterritorial aspects of armed conflict.

    The reason for the latter view — in full disclosure one that I share — is that modern international humanitarian law consists of conventional and customary constraints on what might otherwise be considered a proper measure to defeat an enemy.  In other words, it generally requires that the measures employed in armed conflict be directed to military objectives, but then places limits on what might fall within the scope of permissible military objectives or the means and methods of engaging them.  Parties to a conflict are left with broad discretion to fight an armed conflict, but always subject to these applicable limits.  Of course, when the enemy hides among civilians and does not where uniforms, they are always free to claim that they are not a proper military target or enemy.

    Because international humanitarian law is largely permissive, it makes little sense to superimpose much of human rights law in armed conflict, particularly between fighters/combatants/belligerents.  If one looks at international humanitarian law treaties, they find that states have agreed to fewer constraints on their conduct in non-international armed conflict, the type in which their enemies are least likely to adhere to international humanitarian law.  This is the reason for my earlier statement that they have been careful to protect their sovereignty in non-international armed conflict.  The concern is always whether the state is properly identifying an enemy as such.  How do we know (in a drone attack or anywhere else) without some form of due process whether a state has properly and reasonably identified an individual as an enemy?

    The context of what Israel has done here raises an additional concern, that being the rights of states and others not party to an armed conflict.  The form and limits of these rules do depend to an extent on the nature of the conflict.  Whether Israel has properly imposed a blockade or closed Gaza’s ports very much depends on how the situation is classified, whether occupation, internal armed conflict subject to the second protocol (because, while Gaza is self-governing, Israel might be said to maintain external sovereignty for the Palestinian territories under the various agreements, thus making the conflict purely internal), or non-international armed conflict subject to the first protocol (functionally the equivalent of international armed conflict).

    As most are probably aware, this tension in the law has always existed.  A chief complaint of the colonists in the Declaration of Independence was that the King was using military measures to suppress dissent.  Particularly with regard to internal matters and conflicts, there is always a concern that war measures might be adopted for convenience to the detriment of individual liberties.  For this reason, many seem to default to claims of excessive use or abuse of power when a state is exercising its admittedly proper function of preserving collective security.  Often they are right.  Just as often (it seems to me) they are wrong.  Certainly, insurgent forces use this tension and disagreement to their advantage.

  42. Anon,

    You need not take only my word for it.  These excerpts are from Professor Dapo Akande’s recent EJIL Talk! post on the inquiry to the legality of U.K. involvement in the 2003 Iraq invasion.

    “[The inquiry committee's] call for submissions from international lawyers is perplexing as it might suggest that the committee does intend to examine the question of the legality of the war. But it is perhaps significant that the committee says it wants analysis of the legal justifications offered by the UK alone. It does not wish to focus on the legal arguments presented by other States. If the committee does intend to reach conclusions on the legality of the war then it would make sense not just to examine the arguments put forward by the UK but also by others.”

    …and also…

    “But if one says the UK’s arguments were not correct but does not comment on other arguments, that would not itself lead to the conclusion that the war was not lawful.”

  43. “[In] the naval context, any clash between the naval forces of two or more States may be said to be an armed conflict within this definition. However, it should be noted that although the provisions of this Manual are primarily meant to apply to international armed conflicts at sea, this has intentionally not been expressly indicated in paragraph 1 in order not to dissuade the implementation of these rules in non-international armed conflicts involving naval operations.”


    this is interesting, as so many have been relying on the san remo document regarding justification for boarding ships in int’l waters. even if you intended to stretch the san remo document such that it applied to NIACs between a state and a non-state entity, i’m still not sure how israel’s conflict with hamas fits into the mold of a “NIAC involving naval operations” i.e. a clash between naval forces.

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