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