Guest Post: Iran’s Relief Ship and the Blockade of Yemen 

Guest Post: Iran’s Relief Ship and the Blockade of Yemen 

[Eugene Kontorovich is Professor of Law at Northwestern University School of Law.]

Iran has announced that it will be sending a ship with humanitarian supplies to Yemen, departing the evening of May 10th. Many parts of the Yemeni conflict raise law of war questions, from the legality of the pan-Arab intervention to questions about the use of force and civilian casualties. The Iranian relief ship puts into focus the blockade maintained by Saudi Arabia and its allies, with logistical and intelligence support from the United States.

Saudi Arabia imposed a blockade of Yemen’s ports from the start of the campaign. Since then, the humanitarian situation has become dire, according to many reports, with significant shortages of medicine, food and water.  (Saudi Arabia also bombed the Sanaa airport to prevent Iranian relief planes from landing.) According to Oxfam, “there is no exit” for Yemen’s 10 million people, half of whom are already going hungry.

Blockade is an entirely valid military tactic, which necessarily puts pressure on the civilian economy and well-being. However, there is a theory, which in recent years has attracted considerable support, that international law prohibits blockades in a non-international armed conflict (NIAC). This limitation on blockade has been discussed almost exclusively in connection with Israel’s blockade of Gaza. Assuming that the Yemeni conflict is a NIAC, as most observers seem to view it (a civil war with foreign assistance to both sides), the Saudi blockade raises the same questions as the Gaza blockade, as Tehran has gleefully noted.

To be sure, considerable authority concludes that blockade is entirely permitted in NIACs. The Saudi blockade gives a good occasion to revisit the debate, which has thus far proceeded with an incomplete account of state practice.

Israel’s blockade of Gaza appears to be the first one where said to be illegal because of the nature of the conflict. In the Gaza context, the illegality argument was based largely on what was said to be scanty affirmative precedent for such actions in such contexts, though a lack of precedents does not normally create a prohibition in international law.

Though it was not mentioned in the extensive discussions of Israel’s Gaza policy, there is not only historical precedent, but also contemporary practice supporting NIAC blockades. In particular, Georgia’s blockade of the separatist Abkhazia region, which has been in effect since 2008. The details of the blockade are murky, in part because it has generated not only no international protest, but also no international interest. It is clear that the blockade has been used to interdict neutral vessels carrying non-military supplies. Indeed, the blockade is so well accepted, that the commentators on the legality of the Gaza blockade appear to have been entirely unaware of it.

Then there is Sri Lanka’s blockade of Tamil-held areas during their decades-long civil war. Douglas Guilfoyle, the author of one of the major analyses of the legality of the Gaza blockade, dismissed the relevance of the Sri Lankan precedent:

Most reported maritime interceptions appear to have occurred with Sri Lanka’s territorial sea or contiguous zone, ostensibly on suspicion the vessels were engaged in smuggling weapons or supplies… The practice certainly involved no assertion of rights against neutral vessels on the high seas.

Unfortunately, this account appears to be mistaken on all major points. The blockade certainly applied to neutral ships carrying food and relief supplies, even under Red Cross emblem. Indeed, the blockade resulted in major shortages of basic necessities. The seizure Guilfoyle points to as being within the contiguous zone was, according to all other news accounts, well outside it (and was in any case after the cessation of hostilities and defeat of the Tamils). Nonetheless, the international community does not appear to even have questioned the legality of this blockade.

In another precedent that has not factored into the NIAC-blockade discussion, Indonesia imposed a naval blockade on East Timor when it invaded the territory in 1975, according to accounts of the conflict. Despite fairly strong international condemnation of the invasion itself, I have not found specific criticism of the legality of the blockade.

Incidentally, in 1992, a  “peace ship” carrying activists, Western politicians, and a slew of journalists was turned back by the Indonesian navy after attempting to symbolically challenge that blockade. In that incident, the ship turned back of its own accord after Indonesian threats to open fire; despite the strong international focus on the incident at the time, no one suggested the illegality of such actions in a NIAC.

There may be other recent state practice that has gone unnoticed as well. The episodes discussed here generated relatively little legal controversy – ironically, permissive precedent is most likely to go unnoticed. (The discussion’s of Israel’s blockade dwelt mostly on the United States blockade of Confederate ports in the Civil War and the France’s blockade of Algeria, rather than more current ones, no doubt because they attracted more attention, and better sourced in English and French publications than the Indonesian, Georgian and Sri Lankan measures.)

The blockades discussed here, including the Saudi one, all appear to proceed without all of the formality of the a traditional international armed conflict blockade; for example, it is not clear that there were formal declarations, and the blockaded enemy does not seem to have been always been recognized as a belligerent. This suggests state practice supports a less legally restrictive blockade regime for NIACs.

Thus if Riyadh and its allies are inclined to maintain the blockade, and intercept the Iranian relief ship, it has a strong legal basis. Of course, the Saudi blockade itself becomes part of the state practice on this issue, and on other blockade issues such as proportionality.  One may have thought that, prior state practice to the contrary, Gaza suggested an interest by some states in changing the rules about blockade in NIACs. The Yemen blockade, in force since late March, has not been denounced as illegal, suggesting that no new rule is taking shape.

In regards to the conduct of the blockade, it is interesting to note that Human Rights Watch today criticized the coalitions conduct of the blockade, in particular urging for allowing in fuel. The report, which is well worth reading for more detail on the naval blockade, paints an absolutely catastrophic picture of the situation in Yemen, with much of the population facing death by hunger, water shortage and associated diseases.

Interestingly, HRW does not challenge the legality of the blockade, or its apparently very narrow list of “free goods” (those permitted to pass the blockade after being subject to inspection). In particular, HRW does not call for the US or the UN to condemn the operation, as it has for other blockades. While HRW interestingly reports that the Saudi’s contraband list is not public (generally a legal problem for blockade), it also does not protest what appear to be its fairly comprehensive scope.

Topics
Featured, Middle East
Notify of
Kevin Jon Heller

Of course, facts on the ground indicate that the Houthi now control Yemen’s government. If that is the case, this is a classic IAC between Saudi Arabia and Yemen.

Kevin Jon Heller

By the way, it’s worth noting that most scholars and NGOs consider the Indonesia-East Timor conflict to be international, not non-international. See this report published by Nautilus (which also published the report you rely on for evidence of the blockade) and this scholarly work.

Kevin Jon Heller

“In the Gaza context, the illegality argument was based largely on what was said to be scanty affirmative precedent for such actions in such contexts, though a lack of precedents does not normally create a prohibition in international law.” That is not the argument. Any state has the right to establish a blockade in a NIAC as an aspect of its sovereignty. But that right does not permit the state to violate prohibitive rules of international law, especially outside of its territory. That’s Lotus. Interdicting a foreign ship on the high seas as part of a blockade in NIAC does, in fact, violate such a prohibitive rule: namely, the customary rule (the prohibition of aggression) that prohibits states from interdicting a foreign state’s ship on the high seas without justification. Traditionally, of course, the existence of a legitimate blockade in IAC provided an exception to the rule prohibiting interdiction. It has always been permissible for a state to interdict a neutral ship as part of an IAC blockade (assuming the ship was carrying contraband or the like). Could customary international law have changed to recognise blockade in NIAC as an additional justification for interdicting neutral ships? Of course. But the… Read more »

el roam
el roam

Thanks for the post . One should not forget , that there is no need to wait until the end of all time , for certain customary law to be formed and implemented . Every state, every authority, has the obligation to act reasonably, proportionally, in light of given circumstances. to act reasonably , and lawfully , are both one , same duty , at the same level !! The forth amendment for exe dictates so : ” The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Yet , legislator doesn’t express fully his view , what is : unreasonable search ?? is the inspection of a backyard from a chopper , by a police officer , with no warrant , is reasonable or not ?? that is up to him , or up to the court . Yet , the word :reasonable , obliges , as if it is the law itself . The… Read more »

Douglas Guilfoyle
Douglas Guilfoyle

Interesting post. What do we know about how Indonesia and Sri Lanka characterised their actions? I.e. what rule did they invoke? As far as I am aware in 1984 and 1993 Sri Lanka appeared to avoid characterising its “maritime surveillance zone” as a blockade.

I’ll dig around on the MV Captain Ali and see if I can check my facts, but the 160 nm claims don’t strike me as terribly likely.

trackback

ottawa seoul time difference

Opinio Juris » Blog Archive Guest Post: Iran’s Relief Ship and the Blockade of Yemen  – Opinio Juris

Kevin Jon Heller

Almost no states recognised the Taliban as the legitimate government of Afghanistan, yet the initial stage of the US invasion is universally considered an international armed conflict.

Akiva Cohen

Kevin,

How can you simultaneously argue both that Palestine is a state for purposes of ICC jurisdiction, and that it is not for purposes of defining the conflict as International or non-International?

I’m sure a serious scholar like you is drawing some principled distinction, but from the outside it just looks like you are picking whatever argument you think is worse for Israel without concern for consistency.

Can you clarify?

Akiva Cohen

The Taliban example is a poor one, as there was no competing claim to governmental authority. Worse for you, taken at face value it makes Professor Kontorovich’s point; a conflict in foreign territory would be considered international even if not worth the forces of the recognized government of that territory.

This leaves you with a dilemma:

If Gaza is Israeli territory, then Lotus says it can do what it wishes and impose a blockade. (Note that in your blockade post from 2010, your response to Avi Bell when he raised Lotus was ‘it doesn’t apply because Gaza is not Israeli territory’)

If Gaza is not israeli territory (as you asserted in 2010), then your understanding of the status of Taliban forces articulated above would apply equally to Hamas forces in Gaza, making it an International Armed Conflict – and, again, confirming the legality of the blockade.

The only other option is to meaningfully distinguish between the status of Hamas forces in Gaza and Taliban forces in Afghanistan, and I see no way to do so.

Akiva Cohen

Here’s the prior comment I referenced:

6.02.2010
at 8:55 pm EST
Kevin Jon Heller

“The Lotus Principle, by the way, is the ultimate red herring. Gaza is not Israeli territory. If Israel can do anything it wants to Gaza that is not prohibited by international law, so can any other state. And that includes sending humanitarian aid — nothing in international law prohibits sending such aid. Does that mean Israel cannot stop aid being sent to Gaza? Of course not. But it does have to find positive authority in international law to do so; otherwise, stopping aid being sent by ship under another state’s flag is an act of war. So we are back where we started — what permits Israel to blockade Gaza? The absence of prohibition is not enough.”

http://opiniojuris.org/2010/06/02/why-is-israels-blockade-of-gaza-legal/

Jordan
Jordan

Three states recognized the Taliban as the legitimate govt. of Afghanistan at the end of 2001. In any event, the war was an IAC b/c the Taliban was engaged in a “belligerency” (like the U.S. Civil War in the 19th Cent, an IAC in today’s parlance) and that conflict was further internationalized with use of combat forces by the U.S. and, thereafter, several other states. Saudi combat operations have internationalized the insurgency/belligerency in this instance. But whether or not a blockade is generally permissible, other international law must be complied with — e.g., any relevant laws of war, human rights law, other international criminal law such as that regarding crimes against humanity. Lotus?? The actual case involved nonuse of the Turkish victim theory or passive nationality theory in the special circumstances when objective territorial jurisdiction under customary international law was applicable — when the French vessel crashed into (and was partly inside the territory of the equivalent of Turkish territory [acts within], there were effects within Turkey, and, as a substitute for intent, there was negligence on the part of Lt. Demons. As the PCIJ stressed, there was a fushion of at least two of the relevant elements that permit… Read more »

Hostage
Hostage

Re: Blockade is an entirely valid military tactic, which necessarily puts pressure on the civilian economy and well-being. However, there is a theory, which in recent years has attracted considerable support, that international law prohibits blockades in a non-international armed conflict (NIAC). This limitation on blockade has been discussed almost exclusively in connection with Israel’s blockade of Gaza. I think you’re beating a dead horse if you are claiming an unrestricted right to close-off a territory by sea and air. If you’re looking for relevant examples of state practice since the American Civil War, then how about the fact that the Prime Minister of Israel claimed that the blockade of the Straits of Tiran in 1967 was illegal? See the Message from the Prime Minister to the President of the United States published in the Foreign Relations of the United States Volume XIX, Arab-Israeli Crisis and War, 1967, Document 158 http://history.state.gov/historicaldocuments/frus1964-68v19/d158 During the Berlin blockade, the unarmed aircraft carrying humanitarian aid and essential supplies were allowed through. Likewise, during the Cuban Missile Crisis, there was no air quarantine from the outset, only a naval one. Normal shipping by sea was allowed through. Soviet Ambassador Dobrynin specifically recalled afterward that he… Read more »

Human Shield
Human Shield

But:

1. Illegality conditioned on circumstances in 102(a) and (b) means it is only illegal in some circumstances, not all. Therefore not per se illegal.

2. Gaza isn’t starving, nor is the object of the blockade starvation.

3. Israel allows aid through Erez.

dionissis mitropoulos
dionissis mitropoulos

Hi everyone (you too Hostage, long time no see!) I don’t have legal training (except for a few introductory courses in Law) but i was wondering what international Law would say for a blockade that purports to be in place so that it stop Hamas procurement with rockets, but which seems to be badly failing in accomplishing this purpose. I quote from the Times of Israel, June 2014: http://www.timesofisrael.com/even-after-unity-deal-hamas-still-runs-failing-gaza/ “And yet, in recent months, it has become apparent that the ability of the groups in Gaza to import missiles from abroad, through Sudan or Libya, has been thwarted almost entirely. Much of this comes from Israeli intelligence activities and operations by the Egyptian army in the Sinai. The sea route, primarily the small boats sailing near the Rafah coast carrying missiles and rockets, has almost dried up. The Egyptian Army even shut down the el-Arish port, declaring it a closed military zone. These developments did not lead to dwindling rocket supplies in Gaza, but instead caused an intensification of local manufacture. And here is further corroboration that the blockade cannot really stop Hamas from rearming. I quote from Israel Defense(April/May 2015): http://www.israeldefense.co.il/en/content/hamas-prepares-future-confrontation-restores-its-tunnels-and-rocket-stockpiles “Regarding rocket, Hamas has initiated a tremendous operation… Read more »

Hostage
Hostage

But: 1. Illegality conditioned on circumstances in 102(a) and (b) means it is only illegal in some circumstances, not all. Therefore not per se illegal. I wish you luck with that argument if you land in the wrong jurisdiction. The San Remo Manual has not been incorporated into any treaty and would not constitute grounds for excluding criminal responsibility. I don’t believe that there is any positive law that provides states the right to blockade one another. I merely cited the commentary to illustrate that many of the participants did feel that blockades were unlawful, i.e. the first sentence of 102.2 and the first two sentences of 102.4 of the commentary indicate that several of the participants held that the prohibition of starvation as a method of warfare had indeed rendered blockades illegal per se. They did not accept the proposition that starvation had to be the sole reason the blockade was established. They felt that blockades were illegal, regardless of the motive involved. They said they weren’t interested in establishing a prohibition on a method of warfare conditioned on the factual establishment of the subjective purpose of the belligerents. In cases like Gaza, the illegality can be inferred from… Read more »

Hugh Mannshield
Hugh Mannshield

Dionissis,

That’s just casting about for a bad faith argument (“something,” just give me “something!”) that the Israelis are engaging in bad faith.

Your argument sounds suspiciously like: since laws against murder don’t prevent murders from taking place, enforcing such laws by apprehending and questoning suspects must be a form of collective punishment.

But of course that is not really true. Some level of enforcement works to solve, prevent and deter additional murders; impunity could result in even higher murder rates. So enforcement is not actually gratuitous but rational.

Same with blockade. Without it, the Hamas arsenal would undoubtedly be even bigger than it is. Qualitative too, as more sophisticated rocket types that require components they could not manufacture themselves would proliferate. Just compare the difference in size and lethality of their arsenal to Hezbollah’s. One is blockaded, the other not. That’s one measure of efficacy.

So your premise is false. There is a clear military rationale here.

el roam
el roam

dionissis mitropoulos, stay assured , the blockade , has got nothing to do with making population in Gaza , turning against the Hamas , but the contrary : The IDF, and politicians, are afraid as hell, from chaos in Gaza, which would bring into action and the front scene, much more extremists and irrational groups (Gihadists). With them , there are no understandings at all !! but going wild all around , until last bit of it !! In addition , cleaning Gaza from hamas , would cost , so many lives , of soldiers ( recent operation , even not 10 percent of work has been done , and it did cost by -70 soldiers , full operation would cost at least : 500 hundreds , in civil terms , around : 5000 ) so , Israel , has no interest so far , to reach nothing in fact , but : managing , and containing the situation . Not mentioning ruling over Gaza once again ,occupying it again , ” one scrole can’t have it all ….. ” Otherwise, trust me on that, the IDF, could really, long time ago, finish with it , and get it done… Read more »

el roam
el roam

dionissis mitropoulos ,

I have simply forgotten to mark the punch line then :

What is the purpose of the blockade then ?? Well , it is complicated as hell , but get this as a kind of a brief :

When you are sure that someone is determined to take you down, your mind tends strongly to interpret thinks so, that you should do whatever it takes to:

Hit him hard , and : ” precede remedy to the malady …. ”

you can’t imagine that you need to help him of course , so you start with natural actions , and finish with : self deception .Public opinion may kill the strongests …..

Thanks

dionissis mitropoulos
dionissis mitropoulos

Hi Hugh you said: “That’s just casting about for a bad faith argument (“something,” just give me “something!”) that the Israelis are engaging in bad faith.” Hugh, the Israelis themselves have made it abundantly clear that they wanted the blockade so as to put the population of Gaza on a diet. I don’t need anyone to give me something that is morally incriminating Israel, i already have proof that their basic motive was collective punishment. “Your argument sounds suspiciously like: since laws against murder don’t prevent murders from taking place, enforcing such laws by apprehending and questoning suspects must be a form of collective punishment.” My argument was more like this:granting(for the sake of argument) that the blockade has no serious effect on Hamas rearmament, wouldn’t this fact belie any Israeli claim that the reason it was imposing the blockade was solely for military purposes? And i was asking whether this would have any legal implications. “But of course that is not really true. Some level of enforcement works to solve, prevent and deter additional murders; impunity could result in even higher murder rates. So enforcement is not actually gratuitous but rational.” If legal punishment had very low deterrence value(no… Read more »

Adrian
Adrian

Weird, I’d have thought the conversation would be with regards to the Saudi blockade in Yemen.

Anyway, economic sanctions are not collective punishment as far as I’m aware, so I’m not sure of why would anyone bring that up when criticizing a blockade. Even in the case of Yemen, I don’t see anyone claiming that the blockade amounts to a punishment of the civilian population over the actions of Houthi rebels.

dionissis mitropoulos
dionissis mitropoulos

Hi Adrian

you said:

“Weird, I’d have thought the conversation would be with regards to the Saudi blockade in Yemen.”

I saw commenter Akiva Cohen bringing it up, so i thought it was an acceptable topic of discussion.

Hostage
Hostage

Re: If Gaza is Israeli territory, then Lotus says it can do what it wishes and impose a blockade. No, the Lotus opinion simply said that the first and foremost restriction imposed by international law upon a State is that failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. That would not give Israel permission to perform any of several actions that IHL subsequently prohibited “at all times and in all places” without regard to the juridical status of the victim. I mentioned that the commentary on the San Remo Manual explained that blockades are one of the areas where the adoption of the 1st Additional Protocol has affected the laws of naval warfare. Even if Gaza were Israeli territory, the absolute nature of the prohibition against the use of collective punishments or starvation as a mode of warfare would still tend to apply to any place whatsoever. Article 69 governs relief actions in occupied territories, but Article 70 provides similar protection for relief actions in any part of the territory of one of the parties to the conflict that isn’t occupied. The… Read more »

Adrian
Adrian

You’re forgiven dionissis, since the underlying purpose of the article was, I think, to discuss Egypt and Israel’s blockade of Gaza.

That said, I do have a question with regards to the Saudi-led blockade (which has bearing on the underlying topic of this discussion): Was the Yemeni conflict a NIAC or an IAC at the time the blockade was established? The Houthis may have essentially taken over the Yemeni government now but they most certainly weren’t there yet by the time the Saudi-led intervention began.

Hostage
Hostage

Re: (Eugene) Indeed, I think the IAC/NIAC distinction has become unstable, murky and unhelpful (and think Israel/Gaza is an IAC). I agree. It always has been murky in the case of “states” with limited or disputed sovereignty, e.g. Dr. Isaiah B. Bowman explained: “As to the matter of sovereign equality and the integrity of states, the memorandum prepared by Mr. Gerig indicates how the relationships of certain states to others vary, and it is difficult to define their exact degree of sovereignty and independence. The number of these political units goes up to about 70. The first 45 or so can be considered fully independent, but the sovereignty of the remainder is qualified in some degree. We have to leave out of the Charter any attempt to define a state or to guarantee boundaries, but we should come as close as possible to maintaining the integrity and independence of political units by regulating their behavior and preventing aggression.” — See Foreign relations of the United States : diplomatic papers, 1945. General : the United Nations (1945), The United Nations conference on international organization, San Francisco, California, April 25-June 26, 1945, page 424 http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1945v01&isize=M&submit=Go+to+page&page=424 Thanks to: President Teddy Roosevelt (and his… Read more »

Adrian
Adrian

I do wonder, though, can Gaza be currently considered a state? To me it seems it fulfills the conditions set out in the Montevideo Convention, and following Hostage’s post, it would seem Israel tacitly sees it as such.

On the other hand, the Gazan government does not seem to claim statehood, which would be a necessary condition to be one even if it fulfills the objective conditions to be seen as such.

Akiva Cohen
Akiva Cohen

I don’t have legal training (except for a few introductory courses in Law) but i was wondering what international Law would say for a blockade that purports to be in place so that it stop Hamas procurement with rockets, but which seems to be badly failing in accomplishing this purpose. Dio … perhaps you ought to take a few more courses. In logic as well. First, international law has nothing at all to say about the legality of an “ineffective” blockade; effectiveness simply isn’t a question the law cares about. More fundamentally, the argument that it is ineffective is spurious. The blockade has already prevented multiple efforts to arm Hamas by sea, and there’s no reasonable question that were the sea lanes open to Hamas, Iran would be sending Gaza an arsenal similar to the one it supplies Hezbollah with. Your argument against that – maybe the reason Hamas isn’t as well armed as Hezbollah is Israeli attacks against Gaza – is laughably silly. Israel’s degradation of Hamas’ weapons storage would not account for Hamas’ failure to acquire weapons of the same quality Iran supplied Hezbollah. What you are doing is casting about for a reason to justify your desire… Read more »

Hostage
Hostage

Re: To me it seems it fulfills the conditions set out in the Montevideo Convention, and following Hostage’s post, it would seem Israel tacitly sees it as such. Obviously, since Yediot Aharonot reported that the IDF General commanding Southern Command told regional council leaders that:”There is no substitute to Hamas as a sovereign power in Gaza.” See IDF Commander: Multiple Wars with Hamas Inevitable – Southern Command Gen. says there is ‘no alternative’ to Hamas rule in Gaza, says there are ‘mutual interests’ at stake. http://www.israelnationalnews.com/News/News.aspx/195317#.VVNQEeS37tQ Re: On the other hand, the Gazan government does not seem to claim statehood, which would be a necessary condition to be one even if it fulfills the objective conditions to be seen as such. That’s incorrect. Many people used to say the same thing about the PLO Executive Committee, but its application for UN membership was based upon the November 1988 PNC UDI 11/15/1988 UN Doc A/43/827-S/20278 “Declaration of State of Palestine” issued by the Palestine National Council and its role as the “Provisional Government of the State of Palestine” announced the same day in UN Doc A/43/928 Palestine question/PNC Declaration on provisional Government – Letter from Palestine. In 2009, JCPA Fellow Ruth… Read more »

Jordan
Jordan

Adrian: collective punishment could pertain if the intent was to punish a group because of the conduct of a few who happen to be within the group. Intent would most likely have to be proven by circumstantial evidence.
With respect to Yemen, it seems that it was a NIAC until there was use of outside military force, which internationalized the conflict.
Hostage: interesting “name” — you are certainly not a “hostage” here.

Adrian
Adrian

Jordan: Thank you for your answer, that’s correct though I’m not sure how economic sanctions against a state or even a “territory” could be considered as such.

As for Yemen, my understanding is that IACs take place between states and NIACs take place between non-state actors or a state and a non-state actor.

Hostage: The Palestinian unity government is essentially a fiction and effectively non-existent, this is the 5th national unity agreement Fatah and Hamas have signed since 2007 so I’m not sure about the point you are trying to make here. My question is, is Gaza effectively a state on its own?

trackback

[…] Eugene Kontorovich analyzed the legality of the Saudi blockade of Yemen for The Washington Post, writing that “if Riyadh and its allies are inclined to maintain the blockade, and intercept the […]

dionissis mitropoulos
dionissis mitropoulos

@Akiva You said: “Dio … perhaps you ought to take a few more courses. In logic as well.” I look forward to your explaining what breach of logic i have perpetrated. I was very good in Introduction to Logic (got an A) “First, international law has nothing at all to say about the legality of an “ineffective” blockade; effectiveness simply isn’t a question the law cares about.” I asked whether the ineffectiveness i assumed could be an epistemic guide to Israel’s intentions. Since you say the Law does not care, that’s fine, but where did i violate the dictates of Logic in asking what i did? “More fundamentally, the argument that it is ineffective is spurious. The blockade has already prevented multiple efforts to arm Hamas by sea, and there’s no reasonable question that were the sea lanes open to Hamas, Iran would be sending Gaza an arsenal similar to the one it supplies Hezbollah with.” The argument that the blockade is ineffective meant to convey that Hamas is in a position to produce enough rockets to go to war anyway, as my credible links proved. I asked also for evidence that the purportedly increased arsenal of Hamas (if the… Read more »

Akiva Cohen

Dio, You are engaged in a number of logical fallacies, among them demanding proof of a negative, as well as post hoc ergo propter hoc reasoning. The argument that “Hamas is able to make crude rockets within Gaza, therefore the blockade is ineffective” is a flawed syllogism that assumes that an effective blockade would prevent all weapons manufacture by Hamas, as opposed to merely significantly limiting Hamas’ weapons capability by preventing it from obtaining more sophisticated weapons (or weapons components, such as guidance systems) that it cannot manufacture within Gaza. It is precisely as nonsensical as arguing “the blockade is ineffective because Gaza has plenty of rocks that Palestinians throw at Israeli soldiers”; the fact that there are some weapons available within Gaza says literally nothing (from the perspective of logic) about the efficacy of a blockade designed to prevent the importation of weapons from outside Gaza. You are also engaged in the post hoc fallacy, as you appear to be assuming that Israeli operations against Hamas’ internally developed arsenal would be as successful were there no blockade preventing additional weapons importation. These are basic errors of fact and logic that I did you the courtesy of assuming you were… Read more »

Jordan
Jordan

Adrian: in the 19th Cent. it was well known that all of the customary laws of war applied to a “belligerency” (like the US Civil War between the United States and the belligerent CAS) and that they applied to wars with “nations,” etc. The US was at war with certain Indian nations and tribes. Today, the laws of war can apply to certain armed conflicts with peoples, e.g., Geneva Protocol II.

Hostage
Hostage

Re: My question is, is Gaza effectively a state on its own? Yes, of course. The Gaza strip is 10 times more populous than several UN microstates. But I believe states would have a duty not to formally recognize it, unless and until it accepts the UN, Quartet, and Arab League/GCC demands necessary to end the formal regime of international non-recognition. Some of those demands regard acceptance of the previous agreements, including past recognition of Israel by the PLO, and the other terms of the Middle East Quartet Road map, such as renouncing terror. Of course, some Arab League/GCC and OIC states have always broken ranks and recognized the Hamas government anyway. Unfortunately, the Road map itself is a meaningless legal fiction right at the moment, because the Israel governing coalitions have never accepted it at all, or only subject to reservations that violate both its content and intent. States are likewise under a legal obligation not to recognize the illegal territorial situations that have been created by Israel through annexations and the establishment of the settlements in the occupied Arab territories. But there are some western states that have either helped facilitate recognition or that have undermined that UN… Read more »

Hostage
Hostage

Re: Anyway, economic sanctions are not collective punishment as far as I’m aware, so I’m not sure of why would anyone bring that up when criticizing a blockade. Even in the case of Yemen, I don’t see anyone claiming that the blockade amounts to a punishment of the civilian population over the actions of Houthi rebels. On the contrary, everything I mentioned in connection with the 1st Additional Protocol affecting some state interpretations of the laws of naval warfare would apply equally to the situation in Yemen. For example, the Security Council adopted a resolution on that very subject “Recalling that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including wilfully impeding relief supply and access, may constitute a violation of international humanitarian law” it also poured cold water on the idea that the UN would recognize a de facto regime in Yemen anytime soon: “Alarmed at the military escalation by the Houthis in many parts of Yemen including in the Governorates of Ta’iz, Marib, AlJauf, Albayda, their advance towards Aden, and their seizure of arms, including missile systems, from Yemen ’s military and security institutions, Condemning in the strongest terms the ongoing unilateral… Read more »

Hostage
Hostage

Re… Adrian: in the 19th Cent. it was well known that all of the customary laws of war applied to a “belligerency” (like the US Civil War between the United States and the belligerent CAS) and that they applied to wars with “nations,” etc. The US was at war with certain Indian nations and tribes. FYI, the change to the undefined term “State” in the portion of the UN Charter regarding “sovereign equality” changed the entire nature of the organization and prevented it from actually becoming the “United Nations”. To anyone familiar with the actual documentary history and the rules of international organization, it’s simply ludicrous to suggest that the absence of some aspect of “sovereign equality” could somehow serve as a jurisdictional bar to criminal prosecution in an international court – because there never has been any such thing. I discussed in my post above, that entities like the Latin American and Caribbean states or the India Colony were admitted as full members of the League of Nations, decades before they attained any real measure of independence or sovereignty of their own. They weren’t looking for statehood in the end, they already had that, they were seeking independence. The… Read more »

dionissis mitropoulos
dionissis mitropoulos

@Akiva you said: “You are engaged in a number of logical fallacies, among them demanding proof of a negative, as well as post hoc ergo propter hoc reasoning. You need to say what is the negative statement for which i allegedly asked proof for. Meanwhile, here is a hypothetical negative statement:it’s not the case that Israelis treat the Palestinians in a friendly way. And of course it is perfectly possible in principle to provide proof for this negative statement, by citing for example the numerous proofs that the Israelis are racist towards Palestinians — and,hence, not friendly. “The argument that “Hamas is able to make crude rockets within Gaza, therefore the blockade is ineffective” is a flawed syllogism that assumes that an effective blockade would prevent all weapons manufacture by Hamas, as opposed to merely significantly limiting Hamas’ weapons capability by preventing it from obtaining more sophisticated weapons (or weapons components, such as guidance systems) that it cannot manufacture within Gaza.” I answered already that my point was that the blockade was ineffective in the sense that Hamas could produce enough rockets to conduct war. The sense of ineffectiveness that this presupposes is that a blockade is ineffective if Hamas… Read more »

Adrian
Adrian

Jordan: Indeed, and that’s another reason of why the Israel-Gaza conflict could be considered an IAC. That said, I also believe the question is itself worthy of analysis. Hostage: 1. With regards to Gaza’s possible statehood, I think we are in broad agreement on the matter. I have to say that, if anything, it is arguably more of a state than Somalia or the West Bank itself. Of course, this would also mean that the nature of the conflict between Israel and Gaza is different from that of the conflict between Israel and the West Bank. I also agree with the idea that the Road Map is essentially dead letter and thus fiction as well. As for the latest agreement between Hamas and Fatah, I’m not sure that the swearing in of the ministers of the government matters all that much – best case is that the unity government has ceased to exist or that it has yet to actually exercise its functions. I would assume this is an important thing to consider as far as IHL goes. 2. With regards to the Saudi-led blockade of Yemen, the UNSC resolution doesn’t seem to label it as collective punishment, however. The… Read more »

Hostage
Hostage

Re: With regards to the Saudi-led blockade of Yemen, the UNSC resolution doesn’t seem to label it as collective punishment, however. The blockade may be illegal for a host of other reasons (besides the uncertainty of whether the conflict in Yemen was a NIAC at the time of its declaration), some of which have been argued extensively with regards to some other blockade in the region.

I didn’t say that it was collective punishment. I was responding to the idea that economic or other sanctions are inherently lawful. In some cases, jurists have even held that Security Council-authorized sanctions regimes have been unlawful. For example, in the Bosnia genocide case, Judge Elihu Lauterpacht affirmed a preliminary objection (paras 98-107 on Pages 64-71) which held that the Security Council arms embargo was illegal and exceeded the organ’s authority under the Charter. He said it had, in effect, unintentionally required the other member states to assist in Serbia’s genocidal activities, while denying the Bosnians the ability to exercise an inherent and customary right of self-defense. http://www.icj-cij.org/docket/files/91/7323.pdf

Kevin Jon Heller

I don’t normally respond to trolls, but since Akiva Cohen somehow managed to ask substantive questions this time, I’ll make an exception. How can you simultaneously argue both that Palestine is a state for purposes of ICC jurisdiction, and that it is not for purposes of defining the conflict as International or non-International? That is not what I’m doing. I am perfectly happy to accept that the conflict is international and that Israel has the right to stop foreign ships on the high seas as part of a blockade — but that is only because I acknowledge that Palestine is a state. If it is not a state, the conflict is non-international and stopping foreign ships is an illegal act of aggression. Cohen argues that the conflict is international and stopping foreign ships legal. He thus necessarily accepts that Palestine is a state, because the position of Israel’s Supreme Court that any “cross-border” conflict is international has no basis in international law. The Taliban example is a poor one, as there was no competing claim to governmental authority. Cohen obviously knows nothing about Afghanistan’s history. Once the Taliban became the government of Afghanistan, it was involved in a non-international armed… Read more »

Akiva Cohen

Kevin, You have a nasty habit of presuming people who disagree with you are “trolls”. How can you simultaneously argue both that Palestine is a state for purposes of ICC jurisdiction, and that it is not for purposes of defining the conflict as International or non-International? That is not what I’m doing. I am perfectly happy to accept that the conflict is international and that Israel has the right to stop foreign ships on the high seas as part of a blockade — but that is only because I acknowledge that Palestine is a state. Well, no, that is precisely what you are doing. You have repeatedly referred to the blockade as illegal, and not from a rhetorical, “if we accept your position …” frame, but as your normative position. (See the earlier linked post). If that was your intent, you certainly communicated it poorly. If it is not a state, the conflict is non-international and stopping foreign ships is an illegal act of aggression. Cohen argues that the conflict is international and stopping foreign ships legal. He thus necessarily accepts that Palestine is a state, because the position of Israel’s Supreme Court that any “cross-border” conflict is international has… Read more »

Kevin Jon Heller

All that needs to be said in response to Cohen’s most recent expression of how little he knows about international law is this — the idea that the invasion of Afghanistan created an IAC between the US and Taliban while the Taliban were simultaneously involved in a NIAC with the Northern Alliance is utterly uncontroversial. That he doesn’t understand even the rudiments of conflict classification pretty much says it all.

Regular readers will also know that I almost never describe anyone who comments on the blog, however critically, as a troll. I limit the description to commenters who try to make “gotcha” comments even though they have no understanding of international law. That is Cohen in a nutshell, as his nonsensical attempt to explain why blockade is legal in both IAC and NIAC demonstrates. At least Eugene, however much I disagree with him, understands what he is talking about. Not so with Cohen.

Kevin Jon Heller

Readers should also note Cohen’s embarrassing — but of course unacknowledged — flip-flop concerning the “legitimate government” of Afghanistan. Initially, he said that “[t]he Taliban example is a poor one, as there was no competing claim to governmental authority.” Now he says “[t]he Taliban was in a NIAC with the Northern Alliance, which the US recognized as the legitimate government of Afghanistan.”

Oops.

Akiva Cohen

Heller, You’re absolutely right, I forgot about the Northern Alliance – or, more accurately, had never realized it had a competing governmental claim. Not sure why you think that merits a massive mea culpa, but since you appear to want it, here it is. On the subject of acknowledging errors, a few posts back you slandered both Moshe Yaalon and the Jerusalem Post. Yaalon with the claim – taken from Electronic Intifada – that Yaalon had “threatened to kill civilians, including children,” in future wars. And the Jerusalem Post, which had reported his comments at the Shurat HaDin conference not as a threat but as a discussion of proportionality in EXACTLY the manner one would expect a scholar of IHL to want from a military man, by attacking is credibility and seeing that it might have simply doctored the quote. The video from the conference is now available. http://israellawcenter.org/activities/law-of-war-conference-towards-a-new-law-of-war/ Yaalon’s relevant remarks – made in English – finish about 11 minutes into the speech. Watch them. Then come back, acknowledge and apologize for your efforts in amplifying a slander against him, and confirm you’ve written off Electronic Intifada as a source based on the same logic you used to write… Read more »

Kevin Jon Heller

I’ve admitted mistakes many times in the past — and yes, I’ll admit making one here, at least with regard to the Lebanese civilians issue. Having watched the video, it’s clear that that EI author is taking Ya’alon’s comments out of context. He did not call for deliberately attacking civilians.

That said, I will neither write off EI completely nor endorse JPost’s reporting. JPost has yet to correct their gross misrepresentation of one of the speakers at the conference — and I know for a fact that the speaker in question (who does not want to be identified) complained to the newspaper.

The real moral of the story, then, is to take all media reports on such controversial topics with a grain of salt.

Akiva Cohen
Akiva Cohen

Kevin, Thanks for the admission. With respect to the Taliban, let me unpack a bit. The U.S. (as you’ve reminded me) viewed the Taliban not as the legitimate government of Afghanistan, but as a non-state actor in a NIAC with (what the U.S. considered) the legitimate government of Afghanistan (the Northern Alliance). That being the case, from the U.S. point of view and in terms of the IAC/NIAC distinction, assaults on the Taliban were no different from, say, drone strikes on al Qaeda targets, in that the US strikes were aimed at non-state armed forces within the territory of another state. So, if the perception of the “extraterritorial” party to the conflict is the determining factor, then the US’s Afghan strikes were a NIAC, not an IAC, because the US wasn’t (in its view, or the view of the majority of the world) attacking the forces of a state government. Alternatively, you could argue that the Afghan conflict was an IAC, regardless of the subjective position of the US vis-a-vis the Taliban, because the recognition of the Taliban by other states (regardless of their significance or number) makes any conflict with the Taliban an IAC no matter what the position… Read more »