Archive of posts for category
Middle East

France Fails to Adopt “Unwilling or Unable” in Syria

by Kevin Jon Heller

Last month, Ashley Deeks claimed that France appeared “to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context.” France did indeed attacks ISIS targets in Syria. And it reported those strikes to the Secretary-General of the UN, claiming self-defence under Art. 51 of the UN Charter as a rationale for violating Syria’s sovereignty. But then something funny happened on the way to the Forum: France did not invoke the “unwilling or unable” theory. Here is its Art. 51 letter:


Looks like the “broad consensus” in favour of “unwilling or unable” now stands at three states — the US, UK, and Australia — not four.

Hat-Tip: Thierry Randretsa, author of the blog Dommages civils.

Defending the FSA Against Russia — the Jus ad Bellum Perspective

by Kevin Jon Heller

It’s been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution — the Commander-in-Chief Clause — would permit the US to defend the FSA, which it has been equipping and training. As Bobby points out, rather skeptically I think, the USG seems to believe it would (internal block quote omitted):

[I]t is an interesting legal question, especially in light of recent testimony from Under Secretary of Defense for Policy Wormuth to the effect that Article II could be invoked to permit U.S. forces to defend DOD-trained Syrian forces in the event of an attack on them by Assad regime forces.  Wormuth’s position was repeated by an unnamed “senior administration official” a few days ago.

Given this position, is there any reason to think the answer would be different if we are talking instead about Russian forces attacking those same DOD-trained units?  I see no reason why that would be the case, though the policy stakes obviously are immensely different.  Next, is there anything different if instead we are talking about CIA-trained, rather than DOD-trained, Syrian forces.  Again, I can’t see why this would alter the analysis; under the apparent theory of the Obama administration, the government already possesses whatever legal authority would be needed to use force to prevent Russian jets from striking U.S.-sponsored Syrian units.

I have no doubt Bobby’s right — as I said on Twitter, he has forgotten more about Art. II than I ever knew. I just want to point out that invoking Art. II to defend the FSA against Russia would be more than a little perverse given the status of such an attack under international law — the jus ad bellum, in particular.

Let’s start with Russia. Although its attacks on the FSA might have violated the jus in bello — I certainly wouldn’t be surprised — they did not violate the UN Charter’s prohibition on the use of force with regard to Syria, because they were conducted with the Syrian government’s consent. Nor is there any plausible argument for viewing the Russian actions as an armed attack on the US — whatever the Art. II argument about the US’s “national interest” (see this skeptical Jack Goldsmith post), an attack on the FSA is not a use of force against the US’s “territorial integrity or political independence.”

What this means, of course, is that the US could not invoke self-defense under Art. 51 to justify using force against Russia to defend the FSA — say, by destroying a Russian bomber. Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US.

(To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an aggressive act against a major Western power — one that is also a permanent member of the Security Council.)

Again, I have no idea how these jus ad bellum considerations affect the Art. II analysis. Knowing the US, the fact that attacking Russia would qualify as an unlawful act of aggression might be irrelevant. The optics of using Art. II to justify such an attack would nevertheless be deeply troubling, to say the least.

New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

How Not to Read the Comoros Review Decision (Updated Twice)

by Kevin Jon Heller

Here is the first sentence of Avi Bell’s new editorial in the Times of Israel:

The Pre-Trial Chamber of the International Criminal Court, for the first time in its history, has ordered the ICC Prosecutor to pursue an investigation she has decided to close.


You’d think a law professor might make an effort to understand the Comoros review decision before breathlessly intoning “The ICC Declares War on Israel.” And you’d think a major Israeli newspaper would avoid publishing an editorial that can’t make it past the first sentence without making a fundamental — and painfully obvious — mistake.

You’d be wrong on both counts.

UPDATE: Not wanting to be outdone in terms of blatant wrongness, the Council on Foreign Relations and Newsweek have each published an article by Elliott Abrams that makes the same erroneous claim as Bell — one that, not surprisingly, cites Bell’s Times of Israel blog post. Welcome to the right-wing echo chamber.

UPDATE 2: Here is Bell’s thoughtful response to my pointing out that the very first sentence of his blog post contains a substantive error concerning the review decision:

Over the years, I have found Kevin’s comments to be not simply inane and rude, but also a distraction, and not worth responding to. I have made the mistake in the past of trying to engage him on the substance, but have never had any success in getting him to address the issues, since Kevin is unable or unwilling grapple with any law or fact that shows him or his ideology to be mistaken. Kevin’s standard comment is comprised of one or more insults of his opponent while dodging the substance, and his inevitable response to finding himself in a position he cannot defend (generally related to his antipathy to the Jewish state) is to try to shift attention to some tangential triviality. I will not be taking the bait. All the best to you, Kevin.

Notice the one thing that Bell doesn’t say — that I’m wrong. Perhaps he believes the difference between asking the Prosecutor to reconsider her decision not to investigate and ordering her to open a formal investigation is a “tangential triviality.” I doubt most people would agree.

The Pre-Trial Chamber’s Dangerous Comoros Review Decision

by Kevin Jon Heller

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.

To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.

At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.

The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:

23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.

To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.

The PTC’s approach to “potential perpetrator” gravity is simply bizarre….

Guest Post: The Joint Comprehensive Plan of Action Regarding Iran’s Nuclear Program

by Dan Joyner

[Dan Joyner is Professor of Law at the University of Alabama School of Law.  He is the author of the forthcoming book Iran’s Nuclear Program and International Law, which is under contract with Oxford University Press, and is expected in print in 2016.]

The Joint Comprehensive Plan of Action (JCPOA) agreed to by the P5+1 (Germany, France, the U.K., the U.S., China, Russia) and Iran on July 14 is a major success of international diplomacy, possibly to be credited with the avoidance of war.  It is the culmination of twenty months of negotiations between the P5+1 and Iran since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013.  See my analysis here of the JPOA when it was concluded.

The JCPOA is comprised of 159 total pages of text, consisting of 18 pages of the JCPOA itself, with a further 141 pages divided among five annexes.  All of the documents can be found at this link.  It is a carefully drafted, well organized document, and compliments are due its drafters.

That being said, it is an extremely complex document, which attempts to address all of the issues in dispute between the parties concerning Iran’s nuclear program, from how many and what type of uranium enrichment centrifuges Iran can maintain in operation, to the technical specifications of transforming the Arak heavy water reactor into an alternate less-proliferation-sensitive design, to excruciatingly detailed provisions on the precise sequencing of sanctions lifting by the U.N. Security Council, the U.S. and the E.U.

The general gist of the JCPOA is easy enough to summarize.  It is a quid pro quo agreement under which Iran agrees to significant limits on its civilian nuclear program, and to an enhanced inspection regime by the International Atomic Energy Agency (IAEA) to verify the continued peaceful nature of its program.  In return, the P5+l agree to a coordinated lifting of the economic and financial sanctions that have been applied against Iran over the past six years by both the Security Council acting multilaterally, and the U.S. and E.U. in particular acting unilaterally.  The end goal of the JCPOA is stated to be that Iran will ultimately be treated as a normal nuclear energy producing state, on par with Japan, Germany and many other Non-Nuclear Weapon States party to the 1968 Nuclear Non-Proliferation Treaty.

The precise sequencing of the implementation of the JCPOA’s commitments was one of the most difficult issues in the negotiations, and the JCPOA has one full annex, Annex V, devoted to the issue.  The implementation plan provides for approximately a 10 year timeline over which the main commitments are to be implemented by the parties.  Technically “UNSCR Termination Day,” on which all Security Council resolutions on Iran will terminate, and on which the Council will no longer be seized of the Iran nuclear issue, is set to occur 10 years from “Adoption Day,” which is scheduled for 90 days after the endorsement of the JCPOA by the Security Council.

Sanctions relief will be staggered, but will begin in earnest on “Implementation Day,” on which date the IAEA will certify that Iran has implemented its primary commitments limiting its nuclear program.  This could occur within approximately six months from “Adoption Day.”  The final, full lifting of all multilateral and unilateral sanctions is set to occur on “Transition Day,” which is defined as 8 years from “Adoption Day,” or when the IAEA reports that all nuclear material in Iran is in peaceful use, whichever is earlier.  So the JCPOA envisions a full lifting of all nuclear-related sanctions on Iran within the next eight years at a maximum, with significant sanctions lifting to occur hopefully within the coming year.

There are a number of important legal observations to make about the JCPOA text.  (more…)

Those “Snap-Back” Sanctions in the Iran Deal Have a Pretty Big Loophole

by Julian Ku

I don’t have a profound take on the Iran Deal (full text here) announced today between Iran and the P-5+1 leading world powers. From my understanding of this agreement, I am doubtful it will work out to benefit the U.S. and the E.U., but I don’t feel particularly strongly on this point. There are more than enough commentators out there who have strong opinions on the merits, a few of whom are even worth reading!

Here at Opinio Juris, we have concentrated on the key legal aspects of the Iran Deal in previous posts.  As Duncan has explained, the Iran Deal is not a binding international agreement.  As I have noted, the Iran Review Act does not actually require Congress to vote in order to approve the deal, and it allows the President to veto any congressional vote of disapproval.  Additionally, I think a future president could withdraw from the Iran Deal without violating either international law or the Constitution. (It’s nonbinding under international law and it’s not a treaty nor an congressional-executive agreement for U.S. constitutional purposes).

In this post, I would like to focus on another interesting legal quirk. In order to sell the bill to Congress and the U.S. public, the Obama Administration has insisted on some provisions to re-impose sanctions if Iran is caught cheating.  In earlier discussions, the President has called for “snapback” provisions in the Iran Deal.  In other words, if Iran is caught cheating, the prior UN Security Council Resolutions would be “automatically” re-imposed without going back for a new vote of the Security Council.

I have been skeptical about how this would work, as a legal matter. But the Iran Deal does indeed contain language calling for something like a “snapback” sanction.

37. Upon receipt of the notification from the complaining participant, as described above, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in this JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise….

I suppose it is theoretically possible for this mechanism to work, as long as the UN Security Council resolution lifting sanctions on Iran contains language incorporating this “snapback” process.  The Iran Deal, we should recall, is not a binding agreement and cannot bind the Security Council. I am not aware of similar instances where terminated UN Security Councils could be automatically revived upon a finding of non-compliance, but I am hardly an expert on this subject so I would welcome any readers who can offer some examples.

In any event, there is one more rather large loophole. Paragraph 37 goes on to insulate contracts with Iran that have already been made from whatever “snapback” sanctions that are imposed:

…In such event, these provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.

Since there is likely to be a “gold rush” of business rushing to sign deals with Iran upon lifting of sanctions, this exception might prove a pretty big hole in the “snapped-back” sanctions.   The expected Chinese and Russian deals with Iran for arms sales and oil purchases could survive any snapback, even if Iran was caught cheating.

So even if “snapback” works legally, it would have pretty limited impact practically.Or am I missing something?

The Supreme Court Endorses the Power of the President to Defy Congress in Foreign Affairs

by Julian Ku

I generally read the U.S. Constitution to grant broad powers to the President in the conduct of foreign affairs (see here for my recent take on Presidential war powers), but I am more hesitant to read the Constitution to prohibit congressional override of executive acts.  That is why I disagree with Peter’s implication above that today’s U.S.Supreme Court decision in Zivotofsky in any way cuts back on presidential power in foreign affairs.  I also disagree with Deborah’s characterization of the opinion as “narrow.” To me, it is actually a remarkable endorsement (by justices not named Clarence Thomas) of the President’s power to act in defiance of an express congressional mandate.

Which is a roundabout way of explaining my surprise that the Supreme Court upheld the President’s decision to defy and ignore an express congressional mandate requiring him to allow individuals to list “Jerusalem, Israel” as the place of birth on their passports. I don’t doubt that the President gets to decide whether the U.S. will recognize whether Jerusalem is “in” Israel, but I am a bit surprised to see that majority endorse the power of the President to ignore an express congressional mandate, especially when the majority doesn’t even make clear that the “recognition” power is being affected by a passport listing.

To put in constitutional law-nerd terms, Justice Jackson’s classic concurring opinion in Youngstown Sheet & Tube listed three categories of presidential power: expressly authorized by Congress, not authorized by not prohibited by Congress, and expressly prohibited or mandated by Congress.  This last category, which Jackson described as where the president’s power is at his “lowest ebb,” has never been applied by the Supreme Court before today.  Indeed, many commentators in the context of the commander in chief power have suggested such exclusive powers don’t really exist (see my musings here on this point in the context of the commander in chief power).  Justice Thomas was out on his own island in Hamdi v. Rumsfeld, for instance, but he was relying on a very similar structural argument to the one the Court introduced today.

I think that the President’s recognition power is probably exclusive, but that what constitutes the “recognition” should be interpreted quite narrowly.  That is why I joined Eugene Kontorovich’s amicus brief arguing that a passport designation is not part of the recognition power.  Indeed, if it IS part of the recognition power, the government of China is going to have a pretty good complaint about laws that allow the designation of “Taiwan” on passports. So the Court may have inadvertently created new diplomatic complications in its efforts to avoid other ones.

In any event, the Court could have chosen the “judicially modest” way out. It could have interpreted the relevant statute narrowly to avoid touching on the “recognition” power.  Instead, it reached out to announce judicial endorsement of an exclusive presidential power, and invalidated a law passed by Congress and signed by the President.  I am glad to welcome Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kennedy to the “exclusive presidential power” bandwagon.  Justice Thomas was getting lonely, so I suppose he will be glad to have the company.


When the Left Shoots Itself in the Foot (IHL Version)

by Kevin Jon Heller

Last week, I made the mistake of relying on an article in Electronic Intifada about a recent speech by Moshe Ya’alon, the Israeli Defense Minister. Here are the relevant paragraphs in the article:

Israeli defense minister Moshe Yaalon on Tuesday said Israel would attack entire civilian neighborhoods during any future assault on Gaza or Lebanon.

Speaking at a conference in Jerusalem, Yaalon threatened that “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion … we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.”

I probably should have known better than to rely on an article entitled, in relevant part, “Israeli defense minister promises to kill more civilians.” Prompted by a skeptical commenter, I watched the video of Ya’alon’s speech. And the video makes clear that the author of the article, Asa Winstanley, selectively quoted what Ya’alon said in order to make it seem like Ya’alon was advocating deliberately attacking civilians. In fact, Ya’alon was discussing a possible attack on a rocket launcher located in a civilian house and acknowledging that, if the IDF launched the attack, it was clear they were “going to hurt Lebanese civilians to include kids of the family.” The IDF launched the attack anyway, believing that the military advantage outweighed the certain civilian damage.

Bothered by being suckered into making such a significant mistake, I tweeted Winstanley about his selective quotation. Perhaps he had not actually seen the video? His response was disappointing, to put it mildly. Instead of acknowledging his mistake, he repeated the selective quote. I replied that the video made clear Ya’alon was talking about Israel’s proportionality calculation, not deliberate attacks on civilians, and pointed out that civilian damage is permissible under IHL unless the anticipated civilian damage caused by an attack is excessive in relation to the expected military advantage. I also noted that I thought the attack Ya’alon was discussing was still illegal, because in my view killing a number of civilians in order to take out one rocket launcher was disproportionate.

At that point, it’s safe to say, Winstanley simply lost it. Here are some of his tweets, with my thoughts in the parentheticals…

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.

Breaking the Silence — About Israel’s Assault on Gaza

by Kevin Jon Heller

The irreplaceable Breaking the Silence has released a new report on Operation Protective Edge — and it’s a doozy. Here are some particularly disturbing snippets from the Guardian‘s article on the report, which contains dozens of testimonials by past and present IDF soldiers:

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

Soldiers were also encouraged to treat individuals who came too close or watched from windows or other vantage points as “scouts” who could be killed regardless of whether there was hard evidence they were spotting for Hamas or other militant groups. “If it looks like a man, shoot. It was simple: you’re in a motherfucking combat zone,” said a sergeant who served in an infantry unit in the northern Gaza strip.

“A few hours before you went in the whole area was bombed, if there’s anyone there who doesn’t clearly look innocent, you apparently need to shoot that person.” Defining ‘innocent’ he added: “If you see the person is less than 1.40 metres tall or if you see it’s a lady … If it’s a man you shoot.”

In at least one instance described by soldiers, being female did not help two women who were killed because one had a mobile phone. A soldier described the incident: “After the commander told the tank commander to go scan that place, and three tanks went to check [the bodies] … it was two women, over the age of 30 … unarmed. They were listed as terrorists. They were fired at. So of course they must have been terrorists.”

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

You can find the report here. And if you’re interested in a predictable right-wing attempt to discredit the report — which basically just complains that Breaking the Silence doesn’t release the identity of the soldiers who gave testimony (gee, can’t imagine why not…) — see here.