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

by Eugene Kontorovich

[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.

http://opiniojuris.org/2015/05/11/guest-post-irans-relief-ship-and-the-blockade-of-yemen/

47 Responses

  1. 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.

  2. 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.

  3. “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 burden is on those who believe such a rule now exists to establish the state practice and opinio juris necessary to establish that rule. In the absence of sufficient state practice and opinio juris, the traditional prohibition on high-seas interdiction would still prohibit a state engaging in a NIAC blockade from interdicting a neutral ship on the high seas — even one carrying contraband.

  4. Kevin, I’m not looking to authoritatively characterize each of these conflicts. Indeed, I think the IAC/NIAC distinction has become unstable, murky and unhelpful (and think Israel/Gaza is an IAC).

    That said, it seems states do not regard the Houthis as the legitimate government, otherwise the Arabian intervention would be a clear case of aggression. Yet that does not seem to be the dominant characterization, outside of Tehran. (A more realistic characterization is that Yemen has no government, the kind of scenario that makes the (N)IAC approach not helpful.)

    As for Indonesia/East Timor, again, iI can see how it could be classified as IAC, but if that is international, really I can’t see any but the most strained, special pleading, sui generis distinction between the cases. Indeed, Gaza is more international as East Timor was entirely occupied, and didn’t even have “state” status in the General Assembly.

    Maybe a more predictive definition of NIAC would be “a conflict where one does not think there should be a blockade.”

  5. 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 same concerning blockades , and treating humanitarian aids or vessels of such :

    In the case of the ” Marmara ” , heading to Gaza , the Israelis , warned them , that they need to inspect the cargo , and if OK , means :no military equipment on it , then , shall be delivered to The gaza population .

    So , why do a state needs to wait for specific law or customary to be consolidated ?? we all are obliged to use the mind , to improvise , to show mercy and human attitude , all :
    Without hurting even military goals .
    Thanks

  6. 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.

  7. 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.

  8. 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?

  9. 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.

  10. 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/

  11. 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 use of objective territorial jurisdiction as a competence under international law for Turkish jurisdiction. For that reason, Turkey had jurisdiction under international law and no compensation was owed to Lt. Demoons!

  12. 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 watched on television as the first ship reached the blockade line and that he breathed “an enormous sigh of relief” when it was allowed to pass through. https://books.google.com/books?id=Eaws3G98Ji0C&lpg=PA117&dq=&pg=PA117#v=onepage&q&f=false

    The ICRC commentary on article 102 of the San Remo Manual explained that many of the 28 participants, which included Israeli experts, concluded that binding treaty protocols had already rendered the type of naval blockades you are describing as illegal per se under any circumstances. All of the participants agreed that if starvation or malnutrition were a side effect, that such a blockade would then be considered prohibited under the rule of proportionality contained in Article 102(b). See the commentary on page 179 http://books.google.com/books?id=-janjtEKr7UC&lpg=PA179&pg=PA179#v=onepage&q&f=false

    There are about 160 countries that have adopted laws granting their courts universal jurisdiction over one or more crimes that are prohibited under customary or conventional international law. In Regina v. Jones (2006), the UK Law Lords spelled-out the proposition that the core elements of the crime of aggression have been understood, at least since 1945, with sufficient clarity to permit the lawful trial (and, on conviction, punishment) of those accused of this most serious crime. They said that: “It is unhistorical to suppose that the elements of the crime were clear in 1945 but have since become in any way obscure.”

    If that’s the case, then the international community of states have already served sufficient and constructive notice on the question of the use of blockades through their inclusion in a consensus definition of the constituent acts of aggression adopted by both the UN General Assembly and the ICC Assembly of State Parties. The definition was even cited as a reflection of customary law by the ICJ in a case involving the mining of Nicaragua’s harbors by the USA.

  13. 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.

  14. 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 of self-production of rockets in order to fill its stockpiles. Hamas is concentrating its efforts in producing short-range rockets – that have proven effective against the “Iron Dome” during Protecting Edge, but the organization is also working on producing rockets with a range of 75 km that can reach the central district and Jerusalem, and rockets with a range of up to 150 km – that can reach Haifa in the north. There is an Israeli assessment that Hamas may try to test the “Iron Dome” in a future confrontation by trying to simultaneously launch barrages of rockets from various locations in the Gaza Strip at a single target in Israel, in order to be able to (partially) penetrate the protective layer of the Israeli system.”

    Isn’t there a legal principle (or something!) that would question the legitimacy of such an inefficient blockade on the grounds of gratuitousness? To my mind, the fact that Israel knows that the blockade cannot preclude Hamas’ rearmament proves that the major motive for the blockade was and still is to keep Gazan civilians pressured so that they will vote out Hamas. This latter motive (collective punishment,pressuring Gazans economically so that they will turn against Hamas) has been known to everyone following the conflict and the news (to put Gazans “on a diet” was the expression that best exemplified the Israeli intention), but it is only the other motive for the blockade that Israel advertises, the military one pertaining to stopping rocket supplies.

    As i said, i am an ignorant when it comes to international Law, but i was wondering whether the actual inefficacy of the blockade in stopping the rockets could have any legal significance (for example, as an epistemic guide to Israel’s real intentions in effecting the blockade). Anyone willing to enlighten me welcome!

  15. 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 the fact that Israel arbitrarily prohibited food items; that its officials publicly stated that they were going to put the civilian population on a diet; that its officials did not allow unimpeded provision of humanitarian assistance, including food, fuel, and medical treatment – even after their responsibility to do so had been triggered by UN S/Res/1860 (2009).

    The Goldstone report noted the blockade and the deliberate destruction of the Gaza community’s sources of sustenance and stated that a competent court could reasonably conclude it was an example of collective punishment and the crime of persecution. The ICRC and UN treaty monitoring bodies have declared that the Gaza blockade is an illegal form of collective punishment. There have been reliable reports, including one from The Lancet, which illustrate that one direct result of the blockade is that a statistically significant proportion of the population exhibited signs of malnutrition, including stunted growth of children; permanent developmental disabilities; and shortened life expectancy. There have also been reports that shortages of medicines and basic equipment were causing unnecessary loss of life. See: Gaza’s Stunted Growth Problem http://topics.blogs.nytimes.com/2009/03/21/gazas-stunted-growth-problem/ ICRC – Gaza closure: not another year! http://www.icrc.org/eng/resources/documents/update/palestine-update-140610.htm

  16. 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.

  17. 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 , but it is afraid of the ” hangover ” of the next morning .

    Thanks

  18. 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

  19. 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 matter how we would prove this, let’s take the claim as a hypothetical), wouldn’t it be rational to conclude that punishing people has been proved not to deter and that therefore our motivation in punishing is not deterrence, but something else?(which deterrence, by hypothesis, doesn’t work in our hypothetical).

    “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.”

    The difference of the arsenals of Hamas and Hezbollah you are alluding to might be explicable in terms of the fact that Israel has had more military operations against Hamas than against Hezbollah. The hypothesized deficiency of the Hamas arsenal, compared to Hezbollah’s, could be due to the destruction of Hamas’ arsenal by the IDF, not due to limitations of the blockade. I don’t doubt that things would have been easier for Hamas if the blockade was not in place, i am only wondering whether the difference between the arsenal Hamas has and the one it could have (sans blockade) is so big that morally justifies the blockade.

    “So your premise is false.”

    It might as well be. But i would need more evidence its arsenal would be so improved without the blockade that it would lead to rising numbers of Israeli fatalities. By the way, what was the rationale for ravaging the Gaza economy by not allowing them (until very recently) to export their goods to the West Bank and Israel? These used to be their target markets before the prohibition. No military rationale there.

    “There is a clear military rationale here.”

    There might be. But even granting your point, there is also a collective punishment rationale. We have a case of what analytic philosophers call causal overdetermination, two distinct Israeli motives that are independently sufficient to produce an Israeli intention to blockade are operating at the same time:one is (ex hypothesi) the military advantage you allude to. The other is the will to punish the Gazan population until it votes out Hamas. Granting that the latter is immoral and is a thought that the Israelis are adverting to, would you grant that even if there is a case of military necessity, the mere presence of the (assumed immoral) collective punishment motive renders the Israeli conduct blameworthy?
    What would you think of X if she was heading out to shoot me in the legs because she resents that i am a little snake that opposes the occupation, but suddenly realizes as she is approaching me that i am attacking her, and she shoots me in the leg, as she had intended all along, but with her action being now perfectly legal, since she was in self-defence. Wouldn’t you still think that her original intention renders her blameworthy?(Any resemblance of my thought experiment to Israeli Ministers of Justice is purely accidental:):):):)Not to mention that i would have never attacked her!!!

  20. 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.

  21. 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.

  22. 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 territories of the parties to the conflict either fall into one or the other category from the moment that the civilian population is not “adequately provided for”. In either case relief actions “shall be undertaken” without delay (and not: may be undertaken). They are defined as being “humanitarian and impartial in character” and “conducted without any adverse distinction”. “Offers of such relief shall not be regarded as interference in the armed conflict or as unfriendly acts.” See the Article and the ICRC commentary https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=D9E6B6264D7723C3C12563CD002D6CE4&action=openDocument

    Even if Gaza could be considered Israeli territory, it still would not be considered a territory “possessed of a Government representing the whole people belonging to the territory without distinction of any kind,” since it has always denied the Palestinian inhabitants equal protection under the law and granted its Jewish citizens superior civil and political rights. See the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations

    Article 1(4) of the 1st Additional Protocol provides that “The situations referred to in the preceding paragraph [i.e. IACs] include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

    FYI, in the 2005 “Targeted Killings” case (HCJ 769/02), the Israeli High Court of Justice accepted the government’s position that the conflict between Israel and all of the Palestinian militias is an IAC, i.e. “a continuous state of armed conflict has existed between Israel and the Palestinian militias operating in Judea, Samaria, and Gaza since the first intifada.” The High Court said that the entire area is part and parcel of an armed conflict in a subsection of the ruling under the heading “The General Normative Framework, A. International Armed Conflict” http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM

    Israel has agreed to accept decisions of the Security Council and carry them out in accordance with Articles 24 and 25 of the UN Charter. The Security Council has declared that Gaza is part of the territory occupied in 1967 that will be part of the future State of Palestine. It said that in the very same resolution in which it called for unimpeded distribution throughout Gaza of humanitarian assistance, including of food, fuel and medical treatment. http://www.un.org/ga/search/view_doc.asp?symbol=s/res/1860%282009%29

  23. 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.

  24. 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 corollary to the Monroe Doctrine); Secretary of War Elihu Root; Generals Leonard Wood and Smedley “War is a Racket” Butler; and legal subterfuges like the Platt Amendment; many of those doubtful political units were full members of the League of Nations; full members of the Pan-American Conference of States; and were listed among the handful of High Contracting State Parties to the Montevideo Convention. For example: the US Government commentary on the Draft Montevideo Convention on the Rights and Duties of States begins on page 66 and repeatedly dismisses the idea that it is any sort of codification of international law for use in the real world. The State Department didn’t mind the references to juridical equality of states, so long as the authors didn’t go too far and suggest how that would ever be implemented in actual practice.

    References to an international organization or tribunal to settle disputes were just as unacceptable back then as they are to our US government today. See Foreign relations of the United States diplomatic papers, 1933 The American republics http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1933v04&isize=M&submit=Go+to+page&page=66

    I noted above that the Israeli HCJ has held that the situation is an IAC. It certainly isn’t useful to go on applying the NIAC rules in cases where another state has been publicly declared and acknowledged by the General Assembly of the United Nations and the majority of the international community of states. Hamas never suggested that it was governing a state separate from the remainder of Palestine, or another constitutional entity. The two competing “PA” factions have signed a modus vivendi agreement on the terms of their municipal government that, among other things, accepted the complimentary jurisdiction of the ICC and the appointment of a jointly-selected cabinet to serve as an interim government under President Abbas.

    Re:(Jordan) 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)

    In that sense, Israel’s behavior and public statements regarding Gaza are simply incompatible with non-recognition of belligerency. The U.S. State Department has a web page which explains that blockades have historically resulted in belligerent recognition, because they are “a weapon of war between sovereign states.” http://future.state.gov/when/timeline/1861_timeline/prevent_confederacy.html

    The Israeli Military Intelligence Director told the US government that Israel would be “happy” if Hamas took over Gaza, because the IDF could then DEAL WITH GAZA AS A HOSTILE STATE. (emphasis added) http://admi.net/archive/wikileaks.org/cable/2007/06/07TELAVIV1733.html

    According to the Washington Post and many other sources, Israeli government spokesman Mark Regev cited the San Remo Manual and maintained that Israel was clearly within its rights to stop the aid flotilla, saying “any state has the right to blockade ANOTHER STATE in the midst of an armed conflict.” (emphasis added) http://www.washingtonpost.com/wp-dyn/content/article/2010/06/01/AR2010060102934.html

    The number of states that recognized the Taliban as a legitimate government is comparable to the number that initially recognized the unilateral declaration of the members of the Jewish National Council (Vaad Leumi) and the Jewish Agency for Palestine in May of 1948, when they simply declared themselves to be the provisional government of a republic established inside the boundaries authorized by the United Nations resolution of November 1947. They unilaterally assumed all executive, legislative, and judicial powers over a territory that admittedly contained a Palestinian Arab population that rivaled their own and which constituted somewhere between 49 to 51 percent of the inhabitants according to the previous administration’s best estimates. To say that their control over the majority of the new state’s territory located in the Negev was disputed would be a guarded understatement. Months later, the Security Council resolution of 4 November 1948 was adopted after the government of Israel had violated a UN-imposed cease fire in order to gain a military advantage and finally take possession of that region. http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/61%281948%29

    Judge Schwebel served as the United States representative on the UN Special Committee on the Question of Defining Aggression. In an essay written before the General Assembly adopted the resolution, he cited the example of Israel’s disputed statehood in 1948 and said there was nothing to prevent members, and everything to compel them, to interpret “States” as embracing entities whose statehood is disputed. He said it would be pedantic literalism to maintain that an entity whose statehood is disputed is excluded from the reach of Article 2, paragraph 4 of the Charter. He said that was amply demonstrated by the events of the postwar years. The two largest armed conflicts of the time had involved violation of internationally agreed lines of demarcation – and there had been no lack of charges of aggression in those conflicts. Other actual and potential conflicts had involved entities not recognized as States by all concerned, sometimes, by any concerned. He said to exclude this kind of conflict is to ignore both history and current events. Schwebel said that such cases could be easily resolved by referring to the explanatory note in the General Assembly’s definition of aggression which says that the term “State” is used without prejudice to questions of legitimacy, recognition, or to whether a State is a member of the United Nations. See “Justice in international law”, Cambridge University Press, 1994, ISBN 0521462843, page 573-574

    The Arab states that came to the assistance of Palestine in 1947, did not recognize the competence of those Jewish government officials. When they disputed Israel’s statehood, Abba Eban responded by saying that it was an irrelevant question:

    “the theory that the Charter forbids acts of aggression only against States is utterly without foundation. Indeed, neither Chapter VI nor Chapter VII, in defining threats to the peace or acts of aggression, shows the slightest interest in the juridical status of the victim. The word “State” does not occur in either of those chapters. There is no provision whatever that the attacked party must be universally recognized as a State before an armed attack upon it can be determined as an act of aggression.

    Article 2, paragraph 4, of the Charter forbids the use of force not only if it is directed against the integrity of a State but also if it is used “in any other manner inconsistent with the purpose of the United Nations”. See the minutes of the 340th meeting of the UN Security Council, S/PV.340, 27 July 1948, page 12. http://www.un.org/ga/search/view_doc.asp?symbol=S/PV.340

  25. 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.

  26. 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 to attack the legality of the blockade; it may be convincing to the anti-Israel choir, but it certainly isn’t intellectually honest or convincing to the as-yet undecided.

    Hostage – I entirely agree; the Israeli-Palestinian conflict is in essence an IAC. And I also agree that IAC/NIAC doesn’t really matter with respect to the legality of the blockade. It’s Kevin and various other pro-Palestinian “thought leaders” (like Noura Erekat, for example, who risibly asserts that Israel has no right to self defense when attacked militarily) who argue that it is a NIAC, specifically in order to assert that Israel’s rights under the laws of war are somehow more restricted than “if it were an IAC.”

  27. 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 Lapidoth had pointed out that “The Palestinians have already unilaterally declared statehood, and they did not need to do it again.” — See Tovah Lazaroff,”Lieberman warns against ’67 borders”, Jerusalem Post, 11/14/2009.

    After the General Assembly had finally upgraded Palestine’s observer status on those very same bases, Abbas changed the name of the PA to “The State Of Palestine”. See Abbas changes name of Palestinian Authority to ‘State of Palestine. http://www.timesofisrael.com/abbas-changes-name-of-palestinian-authority-to-state-of-palestine/

    Hamas subsequently signed a reconciliation agreement with the Palestinian President. The two parties agreed to jointly name a technocratic government of national reconciliation. They also agreed in writing to accept ICC jurisdiction, which is only open to optional declarations or accessions filed by a State. See for example, “Hamas backs Palestinian push for ICC Gaza war crimes probe.” http://www.reuters.com/article/2014/08/23/us-mideast-gaza-icc-idUSKBN0GN09320140823

    In terms of the applicable international law, the thing they are governing has already been declared and recognized as a State. So there is no need for them to establish that fact over and over again. Hamas and Fatah have not declared separate states, and even if the did, they could still be considered a federal union or confederation, so long as both parties recognize a unity government.

  28. 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.

  29. 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?

  30. @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 blockade were to end) would be so much more lethal as to justify the blockade. If it is the case that, no matter how much Hamas’ arsenal is increased beyond a certain point, its lethality would be more or less the same, then the blockade wouldn’t have a reason of existence. Where is the violation of deductive Logic in my reasoning?

    “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.”

    I was responding to the point that Hezbollah’s arsenal is bigger in number. So it was not laughably silly but perfectly sane to assume that Hamas might have less rockets because it incurred more losses. As far as the quality of the rockets is concerned, i made the point that what matters is whether the difference in arsenal in the two hypothesized situations (presence or absence of a blockade) would translate into differences in lethality.

    I don’t know if i need a course in Logic, but i guess you need a course in Reading Comprehension. I am certain though you need a course in civil behaviour — we are not supposed to call people names as easily as you do.

    “What you are doing is casting about for a reason to justify your desire to attack the legality of the blockade; it may be convincing to the anti-Israel choir, but it certainly isn’t intellectually honest or convincing to the as-yet undecided.”

    Come again, where did you say is proof that i am intellectually dishonest? Or you just asserted it?

    Slander on top of rudeness — that’s what might make the undecided ones turn anti-Israel, bullies like you. You are more rude even than the average Israeli.

  31. 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 well aware of, which is why I believed – and continue to believe – that you in fact know them and simply prefer to make a poor argument out of general anti-Israel sentiment.

    Indeed, that seems apparent given your current assertion that you were responding only to a comment about the “size” of Hamas’ arsenal; the language you quoted shows that not to be the case:

    “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

    You simply chose to respond to the part you could cobble together a potential response to, and ignore the “qualitative/lethality” argument entirely, given that your “response” simply couldn’t address it. Again, that is not a mark of intellectual honesty.

  32. 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.

  33. 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 regime of non-recognition.

    Re: 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.

    This time they agreed on a list of cabinet officials and actually swore them into office. The whole concept that States actually exist as “persons of law” is a legal fiction in the first place, if you’ve ever tried to compel one to appear “in person” against its will in somebody else’s criminal court.

    FYI, I would suppose that the Security Council, the ICC Prosecutor, and the Court could still agree to hold that Hamas remains bound by the terms of its own acceptance of the Court’s jurisdiction, in exactly the same fashion that they approached the prospective and retroactive effects of the contested Ivory Coast Article 12(3) declaration.

  34. 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 actions taken by the Houthis, and their failure to implement the demands in resolution 2201 (2015) to immediately and unconditionally withdraw their forces from government institutions, including in the capital Sana’a, normalize the security situation in the capital and other provinces, relinquish government and security institutions, and safely release all individuals under house arrest or arbitrarily detained, and reiterating its call on all non-State actors to withdraw from government institutions across Yemen and to refrain from any attempts to take over such institutions,

    Deploring any attempt by the Houthis to take actions that are exclusively within the authority of the legitimate Government of Yemen, and noting that such actions are unacceptable,

    Expressing alarm that such actions taken by the Houthis undermine the political transition process in Yemen, and jeopardize the security, stability, sovereignty and unity of Yemen, –http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2216(2015)

  35. 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 US State Department Digest of International Law explains that:

    “A state in the international sense is generally described as a recognized member of the family of nations, an international person. Authorities differ in respect to the qualifications for such statehood, but there is general agreement on certain basic requirements. Independence is not essential. The requisite personality, in the international sense, is seen when the entity claiming to be a State has in fact its own distinctive association with the members of the international society, as by treaties, which, howsoever concluded in its behalf, mark the existence of definite relationships between itself and other contracting parties” — Marjorie M. Whiteman, Digest of International Law, vol. 1 (Washington, DC: U. S. Government Printing Office, 1963) page 223

    So if the PLO Executive Committee concluded treaties on behalf of the PA, acting in its capacity as the Provisional Government of the State of Palestine, that would not prevent the PA from being a state in the customary sense.

    The first time the phrase “sovereign equality” was used in the foreign relations of the United States was when the Secretary of State advised the US Delegation to the Kingdom of Hawaii that it was okay to arrange with the commanding officer for the continued presence on shore of a US marine force, so long as he did NOT establish “a protectorate over the Government of the Hawaiian Islands, which the United States have recognized as sovereign and with which they treat on terms of sovereign equality.” The very next day he cabled again and said “A treaty of annexation has been signed and will be sent to the Senate without delay.” — http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1894Ap&isize=M&submit=Go+to+page&page=407

    In 1943, the first draft of the declaration of the Moscow Conference said: “That they recognize the necessity of establishing at the earliest practicable date a general international organization, based on the principle of the sovereign equality of all nations, and open to membership by all nations, large and small, for the maintenance of international peace and security.” — http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1943v01&isize=M&submit=Go+to+page&page=523

    That formula would never do for the Big Five, since those particular Allies wanted to keep their war time enemies out of the organization and they also wanted to prevent smaller powers from entertaining any pretensions that some nations might not play a larger role than others. So the British proposed: “That they recognise the necessity of establishing at the earliest practicable date a general international organization based on the principle of sovereign equality of all nations for the maintenance of international peace and security in which all peace-loving nations, great and small, may play their parts.” — http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1943v01&isize=M&submit=Go+to+page&page=532

    Uncle Joe Stalin would have been understandably apoplectic over all of this talk about the sovereign equality of all the nations in his Soviet fold, their right of self-determination, and their right to play a part. While he agreed in principle with the British proposal, proper top-down control under Marxist-Leninist theory would have demanded that it be reworded through a simpler amendment: “namely, to insert the word “States” for “nations” and drop all the talk about small ones playing a part. That’s exactly what the USSR recommended. – http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1943v01&isize=M&submit=Go+to+page&page=598

    In the end they determined that the idea of sovereign equality among peace loving states wasn’t even flexible enough to accommodate the principle of official state neutrality, since peace loving members might have to accept a decision of the Big Five that would require them to go-off to war on a moment’s notice. Article 25 also seemed at odds with the concept of equality, since all of the members had to agree to accept any decision of the Security Council, including a veto that only five members would ever possess. The term lost almost all residual meaning when the USSR, a single constitutional union or entity, demanded and received 3 votes (Russia, Ukraine, and Byelorussia) in the General Assembly – and the veto in the Security Council – compared to the single measly vote permitted to all of the smaller States.

    Honest scholars of political science have never harbored any illusions about the inequality of these historical arrangements which focused all the attention on so-called sovereign states and away from “nations” and “communities”.

  36. @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 can produce enough rockets for war even despite the blockade. My initial sense presupposed that if Hamas can still go to war with enough rockets, then the blockade has not significantly limited Hamas’ rocket capabilities and it was ineffective. Is there aanother sense of effectiveness for the blockade? Yes, a sense that requires that Hamas incurred a loss in the lethality of its arsenal, even if its home made rockets would be enough for a war. For this second sense of effectiveness, i asked for possible evidence that could indicate that Hamas’ arsenal would have been more lethal without the blockade.

    Oh and Akiva, i challenge you to show in sentential form (no need for symbols)the sylogistic fallacy you allege i perpetrated. There is none, i claim.

    “It is precisely as nonsensical as arguing “the blockade is ineffective because Gaza has plenty of rocks that Palestinians throw at Israeli soldiers”;”

    The only nonsensical thing said is what you just said, because the blockade was meant to stop rockets, not rocks. Assume that a blockade is meant to stop weapon X from entering a territory. Assume that somehow the residents of the blockaded territory manage to produce as much quantity of the weapon X as they need — no matter how they succeed or how much they need, this is just a hypothetical. In this case the blockade was clearly ineffective.
    Try a more accurate analogy next time.

    “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.”

    The fact that there are hypothetically some weapons in Gaza that the blockade was meant to significantly limit says a lot in case the weapons in question are in numbers that are not significantly limited–no matter how we might agree to define “significantly limiting” for our purposes.

    “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.

    You don’t even know what you are talking about.

    “These are basic errors of fact and logic

    Up to this point you have not shown a single error of logic. You just like repeating that you do expose such mistakes, in an attempt to diminish the credibility of your interlocutor and also in an attempt to feel good with yourself.

    “that I did you the courtesy”

    You are incapable of courtesies, you are excessively rude.

    “that I did you the courtesy of assuming you were well aware of, which is why I believed – and continue to believe – that you in fact know them and simply prefer to make a poor argument out of general anti-Israel sentiment.”

    My argument was:the blockade does not significantly limit Hamas’ rocket capabilities. Prove that it does. By the way, i don’t need to make any point about the legality of the blockade, the real damaging argument is to expose the Israeli intentions to collectively punish the Palestinians irrespective of whether this was required for stopping the rockets too. And this is what i did when i replied to another commenter with a thought experiment that was showing that the Israeli intentions were immoral, irrespective of whether the blockade was legal.

    “out of general anti-Israel sentiment”

    Hard to find any decent person today who is also informed about the facts of the conflict that won’t be against the Israeli occupation.

    “Indeed, that seems apparent given your current assertion that you were responding only to a comment about the “size” of Hamas’ arsenal; the language you quoted shows that not to be the case”

    Are you completely thick? I responded to a commenter who made the point about the lesser number of rockets that Hamas has compared to the number of Hezbollah’s and i made the point that this might be attributed to the IDF’s destruction of Hamas rockets, and not to the blockade. And subsequently i responded to the argument that Hamas would have better quality of rockets if the blockade were not in place, by asking for evidence that this better quality would translate in to more lethality. Because if the better quality does not translate into more lethality, then there is no reason for the blockade.

    “You simply chose to respond to the part you could cobble together a potential response to, and ignore the “qualitative/lethality” argument entirely, given that your “response” simply couldn’t address it.”

    So your claim is that i ignored the “qualitative/lethality” argument.

    You are either completely thick or disingenuous.Here is what i responded to commenter Hugh with regard to quality of rockets and their lethality:

    “I don’t doubt that things would have been easier for Hamas if the blockade was not in place, i am only wondering whether the difference between the arsenal Hamas has and the one it could have (sans blockade) is so big that morally justifies the blockade… But i would need more evidence its arsenal would be so improved without the blockade that it would lead to rising numbers of Israeli fatalities.”

    And here is what i responded to you with regard to quality and lethality:

    “As far as the quality of the rockets is concerned, i made the point that what matters is whether the difference in arsenal in the two hypothesized situations (presence or absence of a blockade) would translate into differences in lethality.”

    So i obviously responded to the quality/lethality argument. I asked for evidence.

    But you prefer to cast me as dishonest. Here is what you said:

    “Again, that is not a mark of intellectual honesty.”

    No darling, it is just that you are desperate to discredit me and that you have no scruples to slander. It’s a pathology, you know — maybe persecution syndrome, or something?. That’s what it is, together with good old projection — you do realize who is the dishonest in our exchange, don’t you?

    Anyway, here is a link relevant to my previous claim that you are more rude even than the average Israeli. I quote the hard rightwing Spengler

    http://www.atimes.com/atimes/World/WOR-01-260814.html

    “The country that most attracts me is Israel, whose people are impassioned, boisterous, loud, risk-friendly, unruly, rude, and altogether wonderful.”

  37. 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 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.

  38. 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

  39. 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 conflict with the Northern Alliance, which was formed by the deposed government’s president, Burhanuddin Rabbani, and its former Defense Minister, Ahmad Shah Massoud.

    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.

    Worse for Cohen, this is simply incorrect. A conflict cannot be international unless it involves two (or more) states. The conflict between the Coalition and the Taliban was international because the Taliban, recognised or not, was the effective government of Afghanistan, a state. The conflict between Israel and Palestine cannot be an international armed conflict unless Palestine is a state. Cohen’s use of the term “foreign territory” is just his disingenuous and legally-inaccurate way of trying to establish the conflict as international without acknowledging that his position requires him to accept Palestinian statehood.

  40. 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 no basis in international law.

    You are mistaken. First, it’s worth noting that you’ve conceded that the Israeli blockade, and high-seas interdiction of blockade runners, is legal.

    Second, it is not the case that anyone who agrees with you must concede that Palestine is a state (though that is your reason for taking that view). Your view arises out of your assertion that blockades are legal only in IAC. But as Professor Kontorovich and others have pointed out, your assertion that blockades are illegal in NIAC is not exactly non-controversial. On the contrary, given the absence of any express prohibition, the late-breaking distinction between IAC and NIAC in other areas of IHL, the lack of any expressed distinction in this area, and the logic of conflict and state practice. There is, a fortiori, no logical reason for states to have desired to limit their available options for responding in NIAC (and particularly to rule out blockades as an available option) as opposed to an IAC, and, generally speaking, the rules are more restrictive in IAC than NIAC, all argues that blockades are equally legal in both IAC and NIAC. Similarly, there is, a fortiori, no reason for states to have desired to limit other states’ imposition of a blockade (which is a right available through customary international law and state practice, rather than deriving from specific treaty) only to situations of IAC; to states not involved in the conflict, it matters not a whit whether State A imposing the blockade is at war with State B (making it an IAC) or with rebellious territory B (making it NIAC).

    At the end of the day, then, we have the following permutations of possible positions on these issues:

    1) Palestine is a state, and the blockade is legal (because there is no question a blockade is legal in IAC);

    2) Palestine is not a state, and the blockade is legal (because blockades are equally legal in IAC and NIAC); or

    3) Palestine is not a state and the blockade is illegal (because blockades are legal only in IAC, but not NIAC).

    “Cohen” – and others who disagree with your assertion that Palestine meets the criteria for statehood but assert that the blockade is legal – holds by position number 2.

    Worse for Cohen, this is simply incorrect. A conflict cannot be international unless it involves two (or more) states. The conflict between the Coalition and the Taliban was international because the Taliban, recognised or not, was the effective government of Afghanistan, a state.

    Heller is trying to have his cake and eat it too. The Taliban was in a NIAC with the Northern Alliance, which the US recognized as the legitimate government of Afghanistan, but the US’ attack on the Taliban (which it did not recognize as the State of Afghanistan’s government, but viewed as a non-state actor) was an attack on the State and therefore IAC? Does Heller not recognize the logical and legal pretzel he is tying himself into in his disingenuous and legally inaccurate attempt to make a point on behalf of the Palestinians?

    This is what comes of Heller allowing advocacy to trump scholarly analysis.

  41. 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.

  42. 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.

  43. 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 off the JPost.

    Or don’t, which is what I expect you’ll choose, and confirm for anyone paying attention your bias and hypocrisy.

    Your move, Heller.

  44. 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.

  45. 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 of the belligerents as to the Taliban’s status. If that is the case, then applying that principle to the Gaza conflict, the combat would be an IAC regardless of what position Israel takes on the status of Palestine as a state, by virtue of other entities recognizing Palestine as one.

Trackbacks and Pingbacks

  1. ottawa seoul time difference

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

  2. […] 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 […]