02 Sep Blockade, International Armed Conflict, and the Palmer Report
As Julian noted earlier today, the UN’s Palmer Committee has released its report on the Mavi Marmara incident, concluding that Israel’s actions regarding the ship were were excessive and unreasonable, but that the blockade of Gaza itself is legal. I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation. In fact, the opposite is true. Here is the operative paragraph of the report (para. 73; emphasis added):
The Panel now turns to consider whether the other components of a lawful blockade under international law are met. Traditionally, naval blockades have most commonly been imposed in situations where there is an international armed conflict. While it is uncontested that there has been protracted violence taking the form of an armed conflict between Israel and armed groups in Hamas-controlled Gaza, the characterization of this conflict as international is disputed. The conclusion of the Panel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamas is is the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles into Israel or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside its territory. In this context, the debate on Gaza’s status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuum, and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict. This conclusion goes no further than is necessary for the Panel to carry out its mandate. What other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others.
My previous posts on the subject (see here and here) criticized the claim, made most notably by Eric Posner in the Wall Street Journal, that it is permissible for a state to impose a blockade in non-international armed conflict (NIAC). As I pointed out, because imposing a blockade on the high seas is an act of war, the traditional rule — accepted by the Supreme Court in The Prize Cases — has always been that imposing a blockade against insurgents requires states that want to remain neutral to recognize the insurgents as a legitimate belligerent, thus “upgrading” the NIAC to an international armed conflict (IAC). The Palmer Committee’s report in no way contradicts my analysis; indeed, by emphasizing that it considers the conflict between Israel and Hamas to be an IAC, it agrees with me and rejects the position taken by Posner and others.
Unfortunately, as Marko notes today in an insightful post at EJIL: Talk!, the report raises as many questions as it answers. Most importantly, the report seems to deliberately avoid explaining why it considers the conflict between Israel and Hamas an IAC instead of a NIAC. Marko reads paragraph 73 to mean that the Palmer Committee has “implicitly taken the recognition of belligerency route,” but that is certainly not the only interpretation. Israel itself argued that the conflict was an IAC based on, inter alia, “decisions of the Israeli Supreme Court” (para. 47). The most important decision, of course, is Public Committee v. Government of Israel (the Targeted Killing case), in which the Israeli Supreme Court held that “the international law regarding international armed conflict… applies in any case of an armed conflict of international character – in other words, one that crosses the borders of the state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation.” It is thus possible that the Palmer Committee agrees with the Israeli Supreme Court on that point.
That said, I think Marko’s interpretation is the better one. But as he points out, the idea that the IAC between Israel and Hamas is based on recognition of belligerency would have consequences that Israel cannot like:
From the Israeli perspective, the problem here would be that the principle of equal application of IHL would grant Hamas the equal right to blockade Israel, if it had the factual ability to do so, not to mention that from a political standpoint its legitimacy may be perceived as having been accepted by Israel, which is at least one of the reasons why Israel argues that it is engaged in an ‘armed conflict’ with Hamas while studiously avoiding to qualify this conflict
If anything, Marko understates the point. If Hamas is a legitimate belligerent, as it must be for the conflict between it and Israel to qualify as an IAC, soldiers in Hamas’s military wing, the Izz ad-Din al-Qassam Brigades, are no less entitled to the combatant’s privilege and POW status upon capture than soldiers in the IDF. It would also mean that Hamas is entitled to hold Gilad Shalit as a POW until the end of its conflict with Israel. (Although the conditions of Shalit’s confinement are in blatant violation of the Third Geneva Convention and clearly a war crime.) Indeed, I think the Palmer Report acknowledges the implications of its holding when it says, rather cryptically, that “[w]hat other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others.”
Readers interested in the law of blockade should check out Douglas Guilfoyle’s excellent essay “The Mavi Marmara Incident and Blockade in Armed Conflict,” recently published in the British Yearbook of International Law.