(Photo courtesy of WFP )
By Tim Nanns
The international law for wars gives legal footing for sea and air blockades, but also puts restrictions on these blockades in several declarations, conventions and protocols.
This is most prominently featured in the Geneva Convention, along with its additional protocols.
The ‘Declaration Concerning the Laws of Naval War’ from 1909 constitutes part of the footing for the Geneva Convention and other laws, and therefore is cited here to give an example for circumstances under which blockades are permitted:
Article 24 of the declaration considers, among others, “(1) Foodstuffs[…] (9) Fuel; lubricants” as “conditional contraband” since they can be used for civilian and military purposes.Under Article 33 of the same declaration, such “conditional contraband” is subject to blockade or capture if it is “destined for the use of the armed forces or of a government department of the enemy State”.
This ruling explicitly allows upholding a blockade against ships carrying fuel and food, but international law puts a restriction here in the ‘Protocol Additional to the Geneva Conventions’ from 1977: Article 54 (2) puts restraints on those who “attack, destroy, remove, or render useless objects indispensable to the survival of the civilian population[…] for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive”.
Also the ‘San Remo Manual’ of 1994 sets restrictions to naval blockades in Article 102, prohibiting the establishment of a naval blockade 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.
Further, in Article 103, under:
(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. Therefore, it is arguable whether the blockade on Yemen is still legitimate if it leads to a humanitarian crisis such as the one we are witnessing right now in Yemen.
There is no proof of any intention to starve out the population, and it is unlikely considering that the coalition is aiming to reinstall Abdrabuh Mansur Hadi as president. The damage done to the civilian population might not be of any critical relation to the military gains made by such a blockade.
Despite the San Remo Manual, which is not a binding law but a codification of customary law, all major parties in the Yemen conflict, including Saudi Arabia, Yemen itself, and Egypt, have ratified the Geneva Convention, along with Protocols I and II, which is therefore binding law.
