Murder, on a criminal blockade (Israel, Gaza Freedom Flotilla)

Blockade law, below

Israel attacked the Gaza Freedom Flotilla, in international waters, 125 nautical miles (231 kilometers) from Israel’s 20 n.mile naval blockade of Gaza, its closest point (May 31 2010, 0415eest, 0115z.utc.gmt, 6 ships, 663 passengers, from 37 nations) 1 .

Israel killed 9 passengers, wounded 60, on board the MV Mavi Marmara, a large passenger ship, and justified it, with the law of naval blockade, a siege.

But Israel’s blockade zone terminates 20 n.miles, from Gaza’s coast, not 125  2 . And so Israel attacked in violation of its own naval blockade, and the international law of blockade does not apply, does not justify Israel’s attack.

Israel also claims self-defense, to justify its attack.

But the self-defense defense arises only in reply to an armed attack (or an “imminent” armed attack). The flotilla of unarmed civilian ships, on the high seas, they did not launch, or threaten, an armed attack on the Israeli warships.

And so the defense of self-defense belongs to the targets and victims of Israel’s unlawful armed attack, the Gaza Freedom Flotilla, and its champions.

Israel claims its soldiers were entitled to defend themselves, with lethal force, when defenders, of the Gaza Freedom Flotilla, attacked the soldiers.

But Israel’s soldiers launched an unlawful armed attack and, by doing so, they forfeited their right of personal self-defense. Their remedy, the soldiers, was to surrender, to flee, or to stop their attack.

Like bank robbers, shooting attackers, pursuers, the Israeli soldiers had no right, no legal justification, to kill in self-defense.

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Charles Judson Harwood Jr (Warlaw), June 3, 9, 15, 28 2010

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 1  The large passenger ship broadcast its position automatically, and continuously, every 10 seconds or so (AIS: Automatic Identification System). Two AIS broadcasts per day are archived on the internet (near midnight and noon utc z.gmt), one (0056z) fixed the Gaza freedom flotilla — 19 minutes before Israel attacked by zodiak boats (0115z), 34 minutes by helicopters (0130z) — at 125 nautical miles (231 kilometers) from Israel’s naval blockade zone (its closest point), and 72 n.miles from the coast of northern Israel (its closest point), steering south, parallel to the coast (i.e., not getting closer). Mavi Marmara (IMO: 9005869, MMSI: 616952000), position 33.52615N 32.79371E, speed 7.4 knots, course 184 (date-time: 2010-05-31T00:56z utc.gmt). “Gaza maritime area” (Israel naval blockade zone), northern corner position 314648N 341000E (31 46.80N, 34 10.01E). “Distance between 33.52615N 32.79371E and 314648N 341000E is 125.8679 nautical miles” “assumes the earth is a perfect sphere with a radius of 3963.1 statute miles” (Chris Michels, nau.edu, Latitude/Longitude Distance Calculation), accord: Eleftheri Mesogeios (Free Mediterranean, Sofia) (IMO: 6713752, MMSI: 239219000), position 33.52218N 32.78069E, speed 7.3, course 193 (2010-05-31T0104z) (26 minutes before Israel attacked (0130z), “Distance between 33.54655N 32.88334E and 314648N 341000E is 124.4629 nautical miles”), accord: Defne Y (IMO: 7725518, MMSI: 529239000), position 33.54655N 32.88334E, speed 7.6, course 180 (2010-05-31T0012z).

In the U.N. Security Council meeting, a U.N. official said this, “At approximately 4 a.m. local time, the Israeli navy acted to intercept the convoy. This reportedly took place 40 nautical miles off the coast in international waters …” (but he cited no such report) (Oscar Fernandez-Taranco, assistant secretary-general for political affairs, speaking english, reading a prepared statement). The U.N. transcript wrongly transcribed what he said, as “14 nautical miles” (in english, 14 and 40 sound very similar, especially in a foreign accent), but the U.N. report of the meeting said 40 not 14 (SC/9940, May 31 2010), what the written statement presumably says.

The foreign minister of Turkey spoke next (Ahmet Davutoglu, speaking english, reading a prepared statement), “I am distraught by the fact that the Israeli Defense Forces stormed a multinational civilian endeavour carrying humanitarian aid to Gaza in international waters — 72 nautical miles off the coast, to be exact — killing and wounding many civilians.” U.N. transcript, S/PV.6325 (scact2010), U.N. video {140mb.rm, scvideo} (U.N. Security Council meeting 6325, New York City, Monday May 31 2010, 1:55-3:20pm). 72 n.miles is consistent with reports from onboard the big passenger ship, by reporters for Aljazeera English and Press TV, before Israel jammed their satellite communications, before the attack.

The six ships: (1) Challenger I (US-flagged yacht, operated by “Free Gaza Movement”), (2) Eleftheri Mesogeios (Ελευθερη Μεσογειοσ, ΕΛΕΥΘΕΡΗ ΜΕΣΟΓΕΙΟΣ, Free Mediterranean, MS Sofia) (IMO: 6713752, MMSI: 239219000, Greek-flagged cargo ship, operated by “Ship to Gaza”), (3) Sfendoni (Σφενδονη, ΣΦΕΝΔΟΝΗ, photo, source) (Greek-flagged passenger ship, operated by “Greek Ship to Gaza” and “European Campaign to End the Siege of Gaza”), (4) MV Mavi Marmara (IMO: 9005869, MMSI: 616952000, Comoros-flagged passenger ship, owned and operated by IHH: Insani Yardim Vakfi: Foundation for Human Rights and Freedoms and Humanitarian Relief), (5) Gazze (“Gaza”) (IMO: 7806192, MMSI: 271002042, Turkish-flagged cargo ship, owned/operated by IHH, (6) Defne Y (“Laurel Y”) (IMO: 7725518, MMSI: 529239000, Kiribati-flagged cargo ship, owned and operated by IHH. Ali Abunimah, “Did Israel press on with bloody attack on Mavi Marmara even as ship fled at full-speed?” (aliabunimah.posterous.com, June 7 2010).

 2  No. 1/2009 Blockade of Gaza Strip (Israeli Navy, Tuesday January 6 2009 00:00, effective January 3 2009, 1700z.utc).

Israel’s naval blockade zone (“Gaza maritime area”) extends 20 nautical miles from the Gaza coast, its coordinates virtually identical to the 4 corners of the Gaza “fishing zone” (M1, M3, K1, K3), designated on “Maritime Activity Zones, Map No. 6” {1.27mb.pdf, mfa.gif, usip.gif}, in the “Maps” attachment to the Agreement on the Gaza Strip and the Jericho Area (Cairo, May 4 1994) (U.N. docs. S/1994/727, A/49/180, June 20 1994, 216 pages, maps, tables), part of the Oslo Accords: Declaration of Principles on Interim Self-Government Arrangements (Washington D.C., White House, September 13 1993). There’s a difference between satellite coordinates and true coordinates, and (if an element in any coordinates) compass bearings wander, with changes in the earth’s magnetic field. One or more of these facts might explain the slight differences between the two sets of coordinates, I haven’t investigated it. The fishing zone map coordinates are specified in degrees, minutes, seconds, and the blockade map, in degrees, minutes, decimal-minutes (seconds expressed as a decimal of 60 seconds).

The closest blockade point, to the flotilla, was the northern corner of Israel’s blockade zone (125 n.miles away), namely, “31 46.80 N” = 31 degrees, 46 minutes, 48 seconds north (of the equator), “34 10.01 E” = 34 degrees, 10 minutes, 1 second east (of London, the Greenwich meridian), that’s a quarter n.mile, 461 meters, from the northern corner (K3) on the fishing zone map, namely, “31° 46′38.3″ N” = 31 degrees, 46 minutes, 38.3 seconds north, “34° 09′48.4″ E” = 34 degrees, 9 minutes, 48.4 seconds east. “Distance between 31 46′38″N 34 9′48″E and 31 46′48″N 34 10′01″E is 0.2488 nautical miles” (0.4609 km).

45,000 people once worked in the Gaza fishing industry, which Israel destroyed, by blocking fishers from the fish. Israel reduced the 20 n.mile fishing zone it had agreed to, to 6 n.miles, by armed force, Israeli warships, attacking (artillery, machine guns), ramming, destroying, Palestinian fishing boats, killing fishermen, murder, arson, war crimes, and a material breach by Israel of the Oslo Accords, as with Israel’s 2 massive violent war crimes, continuous armed robbery and colonization of Palestinian land (settlements, 500,000 settlers, exclusions zones), in the 1967 oPt, Israeli occupied Palestinian territory.

A few hours before Israel attacked, journalists on board the flotilla reported, that the Israeli warship radio-talkers said, Israel’s blockade zone was now extended (suddenly), from its published 20 n.miles to a new unpublished 60 n.miles.

But Israel warship commanders do not have that legal authority, under the international law of blockade, to alter a published blockade zone, nor any other officers in their chain of command.

A blockade is unlawful unless the government owns it, it’s an act of war, affecting all nations using the high seas, it’s not a tactical tool for military commanders to meddle with, suddenly declare a ship to be violating a blockade and then pretending the legal authority to attack it, if won’t obey orders.

And, the government itself does not have legal authority to expand its blockade zone, as its whims might dictate, to envelop ships on the high seas, beyond what is strictly necessary, for its military purpose.

The 20 n.miles is already a prima facie unlawful blockade zone, a certainly unnecessary encroachment, onto the high seas, way beyond Gaza’s 12 n.mile territorial sea. There’s no need for it.

It would have been justified, 20 n.miles, if Gazans could fish in that zone, to guard against transiting ships dropping off contraband, for the fishers to pick up. But there is no such risk, because Israel long ago excluded Gaza fishing boats, from that fishing zone Israel agreed to, confining the fishers, not from the coast to even the 12 n.mile territorial boundary, but only half that, 6 n.miles.

There’s no significant danger from shore to the warships. The Palestinians do not have guns which can fire 20 n.miles, or 12 n.miles, or 6 n.miles, their homemade Qassam rockets (Kassam) don’t have that range, and the very few long range rockets they sometimes had (Soviet, Russian, grads) are also unguided rockets, not guided missiles.

And the patrol area is short. The outer, western, boundary, of the 20 n.mile zone, is only 19.6 n.miles long, a mere 10 n.miles either side of a warship on patrol, parked in the middle, with long range radar, shore radar, and aerial radar.

An Israeli spokesman said, Israel can legally attack any ship, anywhere in the world, on the high seas which intends (eventually) to breach the blockade, citing “military manuals.” The U.S. Navy military manual says this: “Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or airfield with the intention of evading the blockade” (usn 7.7.4 below), claiming they “are liable to capture” (usn 7.10 below).

But the U.S. Navy does not justify its grandiose definition of “attempt” (in its 1997 annotated supplement, “7.7.4 Breach and Attempted Breach of Blockade,” footnote 138, citing “Hall, Law of Naval Warfare 205-06 (1921)”), compare, 1914 edition page 89.

In addition, the U.S. manual explains, that long distance presumed “attempt” does not apply to a “close-in blockade,” the Gaza type situation, where the warships are in no danger (usn 7.7.5 below).

The San Remo Manual (srm 98 below), and the U.K. military manual (ukmlac 13.70 below), they both reject this U.S. Navy definition of “attempt” and, instead, they both adopt the traditional rule, that capture is justified only if a ship is “breaching” a blockade, and that the blockade line can be set at a distance required by military necessity (srm 96, ukmlac 13.68, below), e.g., beyond reach of shore artillery or aircraft (but only if the blockade can be enforced from that distance).

But Gaza has no artillery, or aircraft, and so no blockade line, and no military attack, beyond the 12 mile legal limit is justified by any military necessity.

And so none of these 3 leading military manuals presumes to justify attacking the flotilla 125 n.miles from the blockade line.

Finally, the intentions of the captains, of the flotilla, are unknown. Their aspiration was to “break the blockade,” but aspiration is very different from intention, and very, very, different from “attempt to breach a blockade.”

The captains were entrusted (by the owners) with millions of dollars worth of ships and cargo, and hundreds of passengers, and so it’s unlikely, that any of them would take action, to invite a lawful armed attack.

A couple hours before the attack (120 n.miles from the Israeli coast), a TV reporter stated their plan was to go close to Gaza, but not in to Gaza, indicating an intention to plea for political support, for powerful nations to intervene, to require Israel to permit the cargo to go to Gaza (comprising items not listed among the 80 items then on Israel’s secret permitted list).

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Blockade law

Below, the customary international law of blockade, elements of it, as asserted by the U.K. (2004), the U.S. (2007), a group of experts (1994, San Remo Manual).

Those documents assume the blockading belligerent is law-abiding.

Near the blockade zone, the flotilla would have doubtless invited Israel to search its cargo at sea, or in a neutral port, failing which sailed to and fro, to garner publicity, and appeal for diplomatic, military, support.

Israel forfeited its right, under the law of blockade, to require the flotilla to dock at Ashdod, because Israel daily commits the war crime of preventing humanitarian aid to Gaza, allowing a small amount only (items on a secret permitted list).

The flotilla knew, Israel would confiscate their cargo (most of it), which comprised humanitarian aid not allowed by Israel (medical equipment, water treatment equipment, spare parts, cement, prefabricated homes, school supplies, toys, food items).

Likewise, by its war crimes, Israel forfeited its legal rights under the law of blockade to attack or seize the ship for refusing to sail to Ashdod.

That is the second reason, Israel’s attack on the flotilla was criminal, and the killings, murder. (There’s a third reason).

Israel’s blockade of Gaza has a dual purpose, its lawful purpose (in the laws of war), to prevent contraband, war-making items, its second purpose is criminal, to prevent many items of humanitarian aid with the criminal war aim of distressing the population so they will overthrow the Hamas government, or vote against them next time.

Hamas was democratically elected on January 25 2006 (74 of 132 seats in the PLC: Palestinian Legislative Council), and was prevented from assuming governmental power, when Israel arrested 64 Hamas officials, including nearly all its elected officials, in the West Bank (a war crime).

Hamas seized control of the government of Gaza on June 14 2007, in a 5-day civil war against Fatah operatives, following infiltration into Gaza (via Israel, December 2006) of weapons and death squads, led by Mohammed Dahlan, who began to murder Hamas officials, a violent RICO criminal enterprise, conspiracy to murder, among U.S. officials George W. Bush, Condoleezza Rice, Elliott Abrams, Keith Dayton, and others, Israel, Egypt, Fatah elements, probably with the knowledge and approval of the U.K. too (Tony Blair, prime minister). See, e.g., David Rose, “The Gaza Bombshell” (Vanity Fair, New York City, April 2008), Gareth Porter, “Bush Plan Eliminated Obstacle to Gaza Assault” (IPS News, January 6 2009) (antiwar.com).

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The Manual of the Law of Armed Conflict (U.K. MOD, July 1 2004)

Chapter 13. Maritime Warfare

D. Basic Rules and Target Discrimination

Basic Rules

13.24. In any armed conflict the right of the parties to the conflict to choose methods or means of warfare is not unlimited. 30 

13.25. Parties to the conflict shall at all times distinguish between civilians or other protected persons and combatants and between civilian or exempt objects and military objectives. 31 

13.26. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 32 

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 30  API, Art 35(1); SRM 38.

 31  AP I, Art 48, see para 2.5; SRM 68.

 32  SRM 40. The same definition is used for warfare affecting targets on land: AP I, Art 52(2), see para 5.4. See also AP I, Arts 49(3) and 52(2).

* * *

Neutral Merchant Vessels and Civil Aircraft

Neutral merchant vessels

13.46. Particular care must be taken before initiating hostile action against neutral vessels. Any attack on these vessels is subject to paragraph 13.3 and the basic rules in paragraphs 13.24 to 13.31. 60 .

13.47. Merchant vessels flying the flag of neutral states may only be attacked if they fall within the definition of military objectives. 61  They may, depending on the circumstances, become military objectives if they:

a. are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search, or capture;

b. engage in belligerent acts on behalf of the enemy;

c. act as auxiliaries to the enemy’s armed forces;

d. are incorporated into or assist the enemy’s intelligence system;

e. sail under convoy of enemy warships or military aircraft; or

f. otherwise make an effective contribution to the enemy’s military action, eg, by carrying military materials, and it is not feasible for the attacking forces first to place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, offload, or take other precautions. 62 

13.48. The mere fact that a neutral merchant vessel is armed provides no grounds for attacking it. 63 

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 60  Adapted from SRM 68.

 61  In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling at the time, offers a definite military advantage: see para 13.26.

 62  Adapted from SRM 67.

 63  SRM 69.

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E. Methods and Means of Warfare

Methods of Warfare

Blockade

13.65. A blockade shall be declared and notified to all belligerents and neutral states. 79 

13.66. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral states may leave the blockaded coastline. 80 

13.67. A blockade must be effective. The question whether a blockade is effective is a question of fact, and is of significance because of the need to distinguish between legitimate blockading activity and other activities (including visit and search) that might be carried on illegitimately on the high seas under the guise of blockade. 81 

13.68. The force maintaining the blockade may be stationed at a distance determined by military requirements. 82 

13.69. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules set out in this chapter. 83 

13.70. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked if they are military objectives. 84 

13.71. A blockade must not bar access to the ports and coasts of neutral states. 85 

13.72. A blockade must be applied impartially to the vessels of all states. 86 

13.73. The cessation, temporary lifting, re-establishment, extension, or other alteration of a blockade must be declared and notified as in paragraphs 13.65 and 13.66. 87 

13.74. The declaration or establishment of a blockade is prohibited if:

a. it is intended to starve the civilian population or deny it objects essential for its survival; or

b. the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade. 88 

13.75. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:

a. the right to prescribe the technical arrangements, including search, under which such passage is permitted; and

b. the condition that the distribution of such supplies shall be made under the local supervision of a protecting power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross. 89 

13.76. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of the armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted. 90 

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 79  SRM 93.

 80  SRM 94.

 81  Adapted from SRM 95.

 82  SRM 96.

 83  SRM 97.

 84  See paras 13.46-13.48.

 85  SRM 99.

 86  SRM 100.

 87  SRM 101.

 88  AP I, Art 54; SRM 102.

 89  SRM 103.

 90  SRM 104.

UKMLAC: The Manual of the Law of Armed Conflict (U.K. Ministry of Defense, July 1 2004, Oxford University Press, 2004, IBSN: 978-0-19-928728-4) {amazon} {LCCN: 2004559969, BL, OCLC: 56067172, WorldCat}, paragraphs 13.65-13.76 (“Blockade”), pages 363-364, from Chapter 13 (“Maritime Warfare”), section E (“Methods and Means of Warfare”).

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The Commander’s Handbook on the Law of Naval Operations (U.S. Navy, NWP 1-14M, July 2007)

Chapter 7 — The Law of Neutrality

7.7 Blockade

7.7.1 General

Blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy as well as neutral, from entering or exiting specified ports, airfields, or coastal areas belonging to, occupied by, or under the control of an enemy nation. While the belligerent right of visit and search is designed to interdict the flow of contraband goods, the belligerent right of blockade is intended to prevent vessels and aircraft, regardless of their cargo, from crossing an established and publicized cordon separating the enemy from international waters and/or airspace.

7.7.2 Criteria for Blockades

To be valid, a blockade must conform to the criteria in the following paragraphs.

7.7.2.1 Establishment

A blockade must be established by the government of the belligerent nation. This is usually accomplished by a declaration of the belligerent government or by the commander of the blockading force acting on behalf of the belligerent government. The declaration should include, as a minimum, the date the blockade is to begin, its geographic limits, and the grace period granted neutral vessels and aircraft to leave the area to be blockaded.

7.7.2.2 Notification

It is customary for the belligerent nation establishing the blockade to notify all affected nations of its imposition. Because knowledge of the existence of a blockade is an essential element of the offenses of breach and attempted breach of blockade (see paragraph 7.7.4), neutral vessels and aircraft are always entitled to notification. The commander of the blockading forces will usually also notify local authorities in the blockaded area. The form of the notification is not material so long as it is effective.

7.7.2.3 Effectiveness

To be valid, a blockade must be effective–that is, it must be maintained by a surface, air, or subsurface force or other legitimate methods and means of warfare that is sufficient to render ingress or egress of the blockaded area dangerous. The requirement of effectiveness does not preclude temporary absence of the blockading force, if such absence is due to stress of weather or to some other reason connected with the blockade (e.g., pursuit of a blockade runner). Effectiveness does not require that every possible avenue of approach to the blockaded area be covered.

7.7.2.4 Impartiality

A blockade must be applied impartially to the vessels and aircraft of all nations. Discrimination by the blockading belligerent in favor of or against the vessels and aircraft of particular nations, including those of its own or those of an allied nation, renders the blockade legally invalid.

7.7.2.5 Limitations

A blockade must not bar access to or departure from neutral ports and coasts. Neutral nations retain the right to engage in neutral commerce that does not involve trade or communications originating in or destined for the blockaded area. A blockade is prohibited if the sole purpose is to starve the civilian population or to deny it other objects essential for its survival.

7.7.3 Special Entry and Exit Authorization

Although neutral warships and military aircraft enjoy no positive right of access to blockaded areas, the belligerent imposing the blockade may authorize their entry and exit. Such special authorization may be made subject to such conditions as the blockading force considers to be necessary and expedient. Neutral vessels and aircraft in evident distress should be authorized entry into a blockaded area, and subsequently authorized to depart, under conditions prescribed by the officer in command of the blockading force or responsible for maintenance of the blockading instrumentality (e.g., mines). Similarly, neutral vessels and aircraft engaged in the carriage of qualifying relief supplies for the civilian population and the sick and wounded should be authorized to pass through the blockade cordon, subject to the right of the blockading force to prescribe the technical arrangements, including search, under which passage is permitted.

7.7.4 Breach and Attempted Breach of Blockade

Breach of blockade is the passage of a vessel or aircraft through a blockade without special entry or exit authorization from the blockading belligerent. Attempted breach of blockade occurs from the time a vessel or aircraft leaves a port or airfield with the intention of evading the blockade, and for vessels exiting the blockaded area, continues until the voyage is completed. Knowledge of the existence of the blockade is essential to the offenses of breach of blockade and attempted breach of blockade. Knowledge may be presumed once a blockade has been declared and appropriate notification provided to affected governments. It is immaterial that the vessel or aircraft is at the time of interception bound for neutral territory, if its ultimate destination is the blockaded area. There is a presumption of attempted breach of blockade where vessels or aircraft are bound for a neutral port or airfield serving as a point of transit to the blockaded area. (Capture of such vessels is discussed in paragraph 7.10.)

7.7.5 Contemporary Practice

The criteria for valid blockades, as set out above in paragraph 7.7.2, are for the most part customary in nature, having derived their definitive form through the practice of maritime powers during the nineteenth century. The rules reflect a balance between the right of a belligerent possessing effective command of the sea to close enemy ports and coastlines to international commerce, and the right of neutral nations to carry out neutral commerce with the least possible interference from belligerent forces. The law of blockade is, therefore, premised on a system of controls designed to effect only a limited interference with neutral trade. This was traditionally accomplished by a relatively “close-in” cordon of surface warships stationed in the immediate vicinity of the blockaded area.

The increasing emphasis in modern warfare on seeking to isolate completely the enemy from outside assistance and resources by targeting enemy merchant vessels as well as warships, and on interdicting all neutral commerce with the enemy, is not furthered substantially by blockades established in strict conformity with the traditional rules. In World Wars I and II, belligerents of both sides resorted to methods which, although frequently referred to as measures of blockade, cannot be reconciled with the traditional concept of the close-in blockade. The so-called long-distance blockade of both world wars departed materially from those traditional rules and were premised in large measure upon the belligerent right of reprisal against illegal acts of warfare on the part of the enemy. Moreover, developments in weapons systems and platforms, particularly submarines, supersonic aircraft, and cruise missiles, have rendered the in-shore blockade exceedingly difficult, if not impossible, to maintain during anything other than a local or limited armed conflict. Accordingly, the characteristics of modern weapon systems will be a factor in analyzing the effectiveness of contemporary blockades.

Notwithstanding this trend in belligerent practices (during general war) away from the establishment of blockades that conform to the traditional rules, blockade continues to be a useful means to regulate the competing interests of belligerents and neutrals in more limited armed conflict. The experience of the United States during the Vietnam conflict provides a case in point. The closing of Haiphong and other North Vietnamese ports, accomplished by the emplacement of mines, was undertaken in conformity with traditional criteria of establishment, notification, effectiveness, limitation, and impartiality, although at the time the mining took place the term “blockade” was not used.

* * *

7.10 Capture of Neutral Vessels and Aircraft

Neutral merchant vessels and civil aircraft are liable to capture by belligerent warships and military aircraft if engaged in any of the following activities:

1. Avoiding an attempt to establish identity

2. Resisting visit and search

3. Carrying contraband

4. Breaching or attempting to breach blockade

5. Presenting irregular or fraudulent papers; lacking necessary papers; or destroying, defacing, or concealing papers

6. Violating regulations established by a belligerent within the immediate area of naval operations

7. Carrying personnel in the military or public service of the enemy

8. Communicating information in the interest of the enemy.

Captured vessels and aircraft are sent to a port or airfield under belligerent jurisdiction as a prize for adjudication by a prize court. Ordinarily, a belligerent warship will place a prize master and prize crew on board a captured vessel for this purpose. Should that be impracticable, the prize may be escorted into port by a belligerent warship or military aircraft. In the latter circumstances, the prize must obey the instructions of its escort or risk forcible measures. OPNAVINST 3120.32C, Standard Organization and Regulations of the U.S. Navy, Article 630.23 sets forth the duties and responsibilities of commanding officers and prize masters concerning captured vessels. Neutral vessels or aircraft attempting to resist proper capture lay themselves open to forcible measures by belligerent warships and military aircraft and assume all risk of resulting damage.

The Commander’s Handbook on the Law of Naval Operations (U.S. Navy, NWP 1-14M, “Edition July 2007”) {2.01mb.pdf, usnwc-cnws-ild}.

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San Remo Manual on International Law Applicable to Armed Conflicts at Sea (June 12 1994) (International Institute of Humanitarian Law, 1988-1994),

Part III : Basic Rules and Target Discrimination

Section V : Neutral Merchant Vessels and Civil Aircraft

Neutral merchant vessels

67. Merchant vessels flying the flag of neutral States may not be attacked unless they:

(a) are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;

(b) engage in belligerent acts on behalf of the enemy;

(c) act as auxiliaries to the enemy s armed forces;

(d) are incorporated into or assist the enemy s intelligence system;

(e) sail under convoy of enemy warships or military aircraft; or

(f) otherwise make an effective contribution to the enemy s military action, e.g., by carrying military materials, and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.

68. Any attack on these vessels is subject to the basic rules in paragraphs 38-46.

69. The mere fact that a neutral merchant vessel is armed provides no grounds for attacking it.

* * *

Part IV : Methods and Means of Warfare at Sea

Section II : Methods of Warfare

Blockade

93. A blockade shall be declared and notified to all belligerents and neutral States.

94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.

95. A blockade must be effective. The question whether a blockade is effective is a question of fact.

96. The force maintaining the blockade may be stationed at a distance determined by military requirements.

97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules set out in this document.

98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.

99. A blockade must not bar access to the ports and coasts of neutral States.

100. A blockade must be applied impartially to the vessels of all States.

101. The cessation, temporary lifting, re-establishment, extension or other alteration of a blockade must be declared and notified as in paragraphs 93 and 94.

102. The declaration or establishment of a blockade is prohibited if:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or

(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:

(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and

(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.

104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.

San Remo Manual on International Law Applicable to Armed Conflicts at Sea (12 June 1994) (International Institute of Humanitarian Law, 1988-1994), IRRC: International Review of the Red Cross, no. 309, pages 595-637 (ICRC, Geneva, December 31 1995).

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