Blockade, International Armed Conflict, and the Palmer Report

by Kevin Jon Heller

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.

http://opiniojuris.org/2011/09/02/blockade-international-armed-conflict-and-the-palmer-report/

6 Responses

  1. Kevin, I will quibble with you on a few minor points.

    First, the implication of the decision is that Hamas is a belligerent party.  I would delete the word “legitimate” as irrelevant.  Recognition of a belligerent party or force does not necessarily grant it any (national or international) “legitimacy” as both you and Marko state.  It only allows it to lawfully exercise the rights of a belligerent when consistent with international humanitarian law.  That the “rebellion” creating the American Civil War rose to the level of a belligerency did not grant “legitimacy” to the Confederacy or its government.  Perhaps you are both using “legitimate” in the much narrower sense of entitlement to belligerent rights.

    Even if Hamas is a belligerent party, it must exercise its belliegerent rights in a manner consistent with international humanitarian law.  Soldiers in Hamas’s military wing are not absolutely entitled to the combatant’s privilege, but have it only if they meet customary international law requirements for that status.  Hamas cannot be a party to the Third Geneva Convention or or the first protocol to the 1949 GCs, and can thus not claim Article 4.A.(1) POW status based solely on membership unless it represents customary law – a highly debated and debatable point particularly given the relevant provisions of the first protocol.  Someone engaged in a continuous combat function can be a combatant for purposes of targeting and detention without being entitled to POW status or the combatant’s privilege for his or her acts of hostilities.

    Although Galid Shalit might be held as a POW, that has clearly not been the case.  Hamas has held him (almost entirely) incommunicado, denied Red Cross access, and made unlawful demands upon Israel for his safe return.  We might interpret those facts as merely establishing unlawful conditions of detention and a request for “exchange of prisoners,” but it seems a lot more like hostage taking prohibited by international humanitarian law.  I am uncertain whether a hostage can be converted to a POW by dropping the unlawful demands, but it’s a good question.

  2. John,

    I don’t think we disagree on the first or third points.  i use the term “legitimate” in the same way that Oppenheim and Lauterpacht occasionally do — to refer to the fact that, if recognized as belligerents, insurgents are entitled to the same rights and privileges as government soldiers.

    We probably do disagree on the second point.  The essence of recognition of belligerency is that the insurgents thereafter stand on exactly the same footing as government soldiers.  The only customary requirement that I see is recognition by the parent state or by a third state.  So I do not understand how it can be argued that government soldiers have the combatant’s privilege and POW status while insurgents-turned-belligerents do not.  The latter are obviously far more likely to commit perfidious acts, such as fighting without uniforms, but doing so would not end the combatant’s privilege or POW status.

    If you will explain what you believe the customary requirements are for a belligerent to possess combatant’s privilege, I’d be happy to respond at more length.

  3. To the extent that the PA is the government, then Hamas is no more than an unattached militia. Minimally a Hamas force must meet the “four part test” of the Hague Agreements and Article 4 of the Third Geneva Convention.
    “(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
    (a) that of being commanded by a person responsible for his subordinates;
    (b) that of having a fixed distinctive sign recognizable at a distance;
    (c) that of carrying arms openly;
    (d) that of conducting their operations in accordance with the laws and customs of war.”
    Failure to wear uniforms or other insignia would strip them of combatant privilege and Geneva protection. However, refusal of Hamas to conduct their operations in accordance with the laws and customs of war may be a blanket disqualification.

  4. In addition to what Howard said, some believe that the four requirements he listed are always (customarily) required for POW status and the combatant’s privilege/combatant immunity.  The first key question is whether membership in a belligerent party’s armed force is entirely sufficient to establish POW status and combatant immunity.  If not and these four requirements are required by custom, the second is whether the military wing of Hamas meets them.  There might be a good argument for a presumption in favor of POW status/combatant immunity for members of a recognized or de facto government’s armed forces and the opposite presumption for the fighters of an insurgency/rebeliion-turned-belligerency.

    Incidentally, fighting without a uniform is not necessarily perfidy.  If one is attacked while sleeping in skivvies they may still fight back without committing perfidy.  Wearing a recognizable insignia (or uniform) and carrying arms openly clearly negates any inference of the requisite intent to commit perfidy.  Their absence, however, does not establish that intent.

  5. Hamas is in control of Gaza, and in the scenario discussed above Hamas is the entity recognized as the belligerent.  Hamas’s military wing is thus not an “unattached militia” — and in any case, as John points out, GC III doesn’t determine the status of insurgent soldiers when the insurgency is recognized as a belligerency.  Customary international law does.

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