Guilfoyle on the Mavi Marmara (Updated!)

by Kevin Jon Heller

I want to call readers’ attention to Douglas Guilfoyle’s article “The Mavi Marmara Incident and Blockade in Armed Conflict,” which is forthcoming in the British Year Book of International Law.  (Subscription required.)  It’s absolutely superb — comprehensive, analytic, and above all fair.  Indeed, its conclusions differ in important ways from those of the UN HRC report, the Turkel Commission inquiry and the Turkish government’s internal report.  Here is the abstract:

This article examines Israel’s enforcement of a maritime blockade against the Gaza Strip implemented in the course of an ‘armed conflict’ with Hamas. The first question is the legal characterisation of this conflict and whether it is one to which the laws of naval warfare apply. The conclusion of this article is that, irrespective of the status of the Gaza Strip as an occupied territory, at the relevant time Israel was at best involved in a non-international armed conflict (NIAC) with Hamas. There is only limited support for the proposition that blockade is available in NIACs, and then only in conflicts reaching a high level of intensity. On this basis, Israel had no applicable right of blockade.

In the alternative, the article considers the requirements of lawful blockade and concludes they were not met in the present case. The central issue is proportionality. The maritime blockade was part of a comprehensive closure regime that had disproportionate effects on the civilian population of Gaza. A maritime blockade in support of other measures causing disproportionate damage must itself be disproportionate. In the further alternative, the article assesses whether Israel could have justified its actions on the basis of other belligerent rights.

Finally, the article considers the law governing the use of force during maritime interdiction operations under the laws of naval warfare. It concludes that a ‘policing’ paradigm of force is applicable. The law of individual self-defence and war crimes is also considered.

It is also worth noting that Doug’s is the first article in BYBIL — which is now in its ninth decade of life — to which Oxford University Press has ever offered advance on-line access.  That’s a great development.

Now if someone would just change “Year Book” to the more modern “Yearbook”…

VERY COOL UPDATE: OUP’s Rhrodri Jackson informs me that, as of last April, the press has officially changed the name to the British Yearbook of International Law.  Even though this post appeared in July, I credit my efforts as being responsible for the change.  Now if only the various on-line databases will accept the new spelling — I type “British Yearbook” into the Melbourne library e-journal system and nothing comes up…

http://opiniojuris.org/2011/07/29/guilfoyle-on-the-mavi-marmara/

19 Responses

  1. ==Now if someone would just change “Year Book” to the more modern “Yearbook”…==
    Indeed. At least for consistency. They don’t call it the “Wimble Don” either.
     
     

  2. “There is only limited support for the proposition that blockade is available in NIACs” Does this make Abe a war criminal for blockading the Southern states during the Civil War, and why did Britain acknowledge the blockade if such a thing was impossible ? For that matter, why did Britain formally issued a blockade of South Africa during the Boer Wars if British legal opinion is that you can’t do that? It would appear that academics ignore what governments do while building their theories, and governments ignore what academics think while defending themselves and developing policy. Perhaps: “Those who cannot remember the past are condemned to write law journal articles.”
    “and then only in conflicts reaching a high level of intensity” which is why Kennedy did not call the Cuban Missile blockade a “blockade” (unless of course you think that almost triggering a nuclear war is of sufficient intensity). Certainly it appears that when an enemy fires thousands of non nuclear missiles across a border that is not of sufficiently high intensity.

  3. Of course there was the NIAC blockade of the colonies during the Revolutionary War.
    For blockade activity by both sides during the Spanish Civil War, consider http://www.clashofarms.com/files/Naval_Aspects_Spanish_Civil_War.pdf.
    President Wilson ordered a blockade of Russia during the civil war between the Bolsheviks and the White Russians prior to the Archangel invasion.
    The French maintained a naval blockade of sections of Indochina during the conflict with the Viet Minh.
    The Italians have currently proposed a blockade of Libya during the current “kinetic military activity” and the Libyan NIAC civil war.
    1902 Britain, Germany, and Italy blockade Venezuela to demand compensation for damages in the recent NIAC civil war fought there. Technically the NIAC that triggered it was over, but the blockade never rose to the level of an actual IAC and the issues were mostly monetary rather than military
    The most curious example was the mining (a kind of blockade) of Hyphong harbor during the NIAC in South Vietnam to block the flow of supplies from North Vietnam even though technically the North was not officially part of the NIAC.
    So with examples of blockades by the US, Britain, France, Germany, and Italy in North American, South America, Europe, Africa, and Southeast Asia in the 18th, 19th, 20th, and a proposed 21st Century NIAC, where precisely does one assert that there is only “limited support” for the concept of a blockade during an NIAC? Would it not be more accurate to say that although there are many examples throughout history involving the practice of many countries, the limited support exists only in certain academic circles, and that you have to be careful not to listen to what any of those European governments are currently proposing about the Libyan civil war to believe it?
     

  4. Re: Civil War.  Thanks for making Douglas’ point, Howard.  Once Abe imposed the blockade, Britain and other states immediately recognized the Confederacy as a belligerent and declared neutrality.  So no, the Civil War provides no support for the idea that you can have a blockade in NIAC; the very act of blockading is an act of war that converts a NIAC into an IAC.

  5. And I love the idea that the Cuban missile crisis was a NIAC.  Good stuff!

  6. I’d also query whether the Boer War would qualify.  The Orange Free State and the Transvaal were independent.  You’d have to blockade British and foreign holdings (like Portugal’s colony) as that’s what faced the sea, but the countries were at a state of war.

    Of course, the war also featured concentration camps, so it might not be the best example of modern state practice. . .

  7. In the Civil War, the US could have closed its ports. That is an operation that can be enforced within the 12 mile limit of national waters, and it would not have had any legal effect overseas. By declaring a Blockade, however, the US was able to move its enforcement operation more than 12 miles off the coast and intercept ships bound for Southern ports in international waters. However, that allowed the Europeans to recognize the CSA as a “belligerent party”.
    A Belligerent Party is not another country. It doesn’t even assert that the CSA is a legitimate recognized government. It can simply mean that the CSA is a military force that has achieved a certain level of territorial control. Technically it doesn’t matter if the belligerent party is trying to break away from your country or is a rival force seeking to take over your entire country.
    Once the enemy reaches a level of recognized belligerency, this triggers certain rights to foreign governments. They can, for example, sell weapons to a belligerent party under international law where they would not have been allowed to sell those weapons to a criminal organization or low level rebellion [OK, lets all get the Gunwalker, ATF, Mexico comments off the table for a moment.] So Britain could sell ships like the Alabama to the CSA thanks to the Blockade. While a Belligerent Power has some of the rights of a government, it is not a recognized government and this does not transform the Civil War from an NIAC to an IAC. In particular, when the Belligerent Party is another force trying to control the same country, then you have trouble explaining how two forces fighting to control the same single country can trigger an “International” conflict.
    The Cuban Missile crisis was neither an IAC or an NIAC. Except for shooting down a U2 spy plane, there was no meaningful combat. It was a Blockade. While a Blockade is an “act of war”, this does not mean that it actually has to start a war (or an armed conflict) if the two sides decide not to make it one. That is why I split the comment into two pieces. One dealt with the idea that Blockade was limited to International rather than Non-International conflicts. The other was the claim that if a blockade was legal in a NIAC, it was “only in conflicts reaching a high level of intensity.” The Cuban Missile Crisis reminds us that the purpose of a blockade is often to avoid or reduce combat and therefore lower the level of intensity.
    A successful blockade may accomplish its function without a shot being fired, but if it isn’t legal by some theory until after there is intense combat then there is something wrong.
    A blockade of Gaza means that Hamas can be recognized as a Belligerent Party. If the Chinese (for example) sell them a missile, and they fire that missile into Israel and blow something up, Israel has no claim in any international court for compensation from China for the damage. Without a blockade or other recognition of belligerency, such a claim would be possible, just as it is possible that the US is going to get sued by Mexicans. A country can sell weapons to a belligerent party, but not to a drug cartel. However, if you recognize Palestine as a country next month, and Hamas continues to fire missiles from Gaza into Israel, then it becomes an IAC with or without the blockade.

  8. Professor Heller,

    You said that “the very act of blockading is an act of war that converts a NIAC into an IAC.”

    So if the California State Police blockade Alcatrez during a prison riot, that turns the riot into a IAC and the rioters into belligerants?  Really?  Are you serious?

  9. NSD,

    If you don’t understand that a prison riot doesn’t create a NIAC, there’s not much point in trying to explain more complicated IHL issues to you. But you might try reading Guilfoyle’s essay; he explains (as I have in the past) why in a real NIAC a blockade is an act of war that permits states to declare neutrality and requires granting the insurgents the status of belligerents.

    AP II, art. 1(2): “This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”

  10. Is there a serious case to make that there is NIAC in Mexico between the State and the various large drug gangs*?

    Sure, it’s internal, and no specific territory is specifically claimed, but on all other counts…

    I’d be really interested in why/why not!

    *not for a second endorsing the ‘war on drugs’!

  11. The argument that Israel had no right to blockade borders on the frivolous.  The proponents’ basis is the level of intensity was not sufficient?  What?  Rockets fired from an entity controlled by a terrorist organization (see US State Dep’t listing of Hamas as a terrorist org) into civilian Israeli areas is not “sufficient?”  Sorry but purposely targeting Israeli school children and playgrounds even one time is for Israelis “high intensity” i.e., exigent circumstances, and justify doing what needs ti be done to protect and defend civilians.

  12. I should again point to the Korean War. As with Israel/Palestine, Korea was at the start of the war a former single country in which two governments had effective control of two zones of occupation. It is clear that North/South Korea and Israel/Palestine were going to become two countries, but at the time (then and now) some governments did not recognize the DPRK and some did not recognize the ROK (and some do not recognize the PLA and some refuse to recognize Israel as a Jewish homeland). Failure to recognize formally the partition of a country or the governments of the two halves did not prevent what has always been historically recognized as the equivalent to an IAC, even if technically you could argue it was an NIAC civil war ending in a partition of the former single country into two countries.
    This may, however, suggest a correction to the original error in the quoted article. Blockade is clearly an act that only the naval forces of a government can perform. Blockade is also an act of war, but when conducted by a government that implies that it is an act that frequently precedes and causes a war (as the Egyptian blockade triggered the 1967 war). Obviously then the blockade cannot require that an armed conflict of sufficient intensity already exist if historically it has been the basis of starting the armed conflict in the first place. Korea, Vietnam, and other examples show that governments can become involved with NIACs in support of one party or another. The US could effectively blockade (maintain naval and Coast Guard activity) in Vietnam in support of the war against the Viet Cong. Israel is a government. There is nothing in international law or historical example to prevent it from establishing a blockade of one section of the other half of the old Palestine Mandate. That may be an act of war, but whether it is directed at the Hamas half of the Hamas-PLO NIAC or Hamas as part of a Hamas-Israel NIAC or an incipient Palestine-Israel IAC all appears to be irrelevant. Nothing in history suggests that the validity of a blockade depends on the type of war it will start if it starts a war. The only requirement is that the blockade be declared and enforced by the naval forces of a regular country. After that, whether the blockade is against insurgents in the same country (the Civil War), insurgents in another country (Vietnam), or part of a partitioned territory engaged in a IAC/NIAC ambiguous conflict (Korea, Israel/Palestine) the status of the target doesn’t matter.

  13. Professor Heller,

    I must confess that I am confused by your reasoning.  First, you argue that a blockade is an act of war that makes something a IAC.  Then I give you an example of why that is false — i.e., the example of a blockade during a prison riot not turning that conflict into a IAC.  Then you confirm that a prison riot in which a blockade occurs is not a NIAC by accurately citing AP II, but then go on to state again that somehow the blockade itself turns people into belligerants.

    First of all, that is an incorrect statement of the law.  Second, it would be a really bad rule to have.  Why would you want someone’s status be based solely on the military action being taken against them?  That would create an absurd result — a party is a belligerant so long as it is the victim of a blockade, but then loses those rights once the blockade is lifted?  

    Lastly, Guilifoyle’s essay is methodologically flawed.  It looks for a source of permission for Israel’s blockade rather than a legal prohibition.  Under Lotus, and as affirmed by the majority in the Kosovo independence case (and if you disagree with me about the case and its reliance on Lotus, then you need to explain Simma’s dissent), the blockade has to be prohibited under international law.  I don’t see such a prohibition.

  14. NSD,

    It is your argument that is methodologically flawed, not Guilfoyle’s.  Stopping another state’s ship on the high seas is an act of war that is prohibited by international law, absent some justification for the interdiction.  Israel’s stated justification is that it has legally established a blockade.  As Guilfoyle shows, Israel’s blockade is not legal, because blockades are only permissible in IAC and Israel is not engaged in an IAC with Hamas.

    Your analogy, moreover, makes no sense.  You cannot argue against the idea that a blockade is an act of war that is permissible only insofar as insurgents are recognized as belligerents (the US Supreme Court’s position in the Prize Cases) by citing a situation in which there is not even an insurgency.  You need to learn the traditional international law distinction between insurgency/belligerency/war.  Guilfoyle explains it perfectly.

  15. Professor Heller,

    I feel that we are talking past each other, so let’s try to narrow the topic with a simple question.  You claim that “Israel’s blockade is not legal, because blockades are only permissible in IAC.”  As I understand it, you claim is that no IAC, no legal blockade.

    OK, but if that is true, then why would a blockade of Alcatrez not turn a prison riot into a IAC?  The premise of your argument is that the blockade makes the situation a IAC.  I am giving you a clear example of a blockade not turning something into a IAC, unless you want to argue that APII art 2(1) is a nullity.  Why does that not defeat your argument that blockades are only allowed in IACs?  We both agree blockade in prison riot OK, and not IAC.  Then how can you then say no IAC, no legal blockade.

  16. NSD
    a riot in Alcatraz pirson and the following police blockade is just a riot, which can not trigger the application of IHL, that is KJH’s point.

  17. Guneysu, I am glad that you agree with me that blockades do not dictate whether and what type (IAC/NIAC) of IHL applies.  Professor Heller disagree with you, because he is saying that blockades are only allowed in IACs.

  18. ‘Stopping another state’s ship on the high seas is an act of war that is prohibited by international law’
    Presumably Israel is something of a victim of its circumstances here – Australia or the US, for example, would surely not have considered the Ravi Mara to be on high seas at that distance from us?

    Also, does this mean that the only problem with Israel’s action was the distance from the shore at the time of the action?

    Finally, does an act of war matter if the aggrieved party doesn’t consider it such? Turkey has not reciprocally declared war on Israel, and indeed, Israel and Turkey surely must be considered by their subsequent conduct to have waived any claim of aggression against each other?

  19. Alcatraz: Don’t ‘blockades’ under the law of naval warafe occur in international waters? Wouldn’t a ‘blockade’ of Alcatraz occur in internal waters? If so, it seems to me that the term ‘blockade’ is being used in two different legal contexts.

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