An aerial blockade is a belligerent operation to prevent aircraft (including UAVs/UCAVs) from entering or exiting specified airfields or coastal areas belonging to, occupied by, or under the control of the enemy.
[Commentary]
- The primary purpose of establishing an aerial blockade is to deny the enemy the benefit of the use of neutral aircraft to transport personnel and goods to or from enemy controlled territory. That purpose may be achieved by the use of a variety of lawful means of warfare.
- As explained in the chapeau of the Commentary on this Section, a naval blockade is enforced against vessels, whereas an aerial blockade is enforced against — even empty — aircraft (including UAVs / UCAVs). The means of enforcement are irrelevant, i.e. both types of blockade can be enforced by either warships or by military aircraft (see Rule 153 (a) and Rule 154).
- An aerial blockade against “coastal areas” can be imposed irrespective of the existence of any airfield within the area affected.
- A blockade, whether aerial or naval, is the only method of warfare entitling a Belligerent Party to lawfully interfere with enemy exports on board neutral civilian aircraft (or vessels). If no blockade is established and enforced, goods on board neutral civilian aircraft (and vessels) may be captured as prize only when they constitute contraband (see Rule 141 (a)).
(a) An aerial blockade must be declared by a Belligerent Party and notified to all States.
[Commentary]
(b) The declaration must specify the commencement, duration, location, and extent of the aerial blockade and the period in which neutral aircraft may leave the blockaded area.
[Commentary]
(c) Whenever feasible, a Notice to Airmen (NOTAM) about the establishment of the aerial blockade ought to be issued by the Blockading Party in accordance with Rule 55.
[Commentary]
- This Rule is based on Art. 8 of the 1909 London Declaration,[733] according to which a naval blockade, in order to be binding for neutral navigation must be declared. The same obligation applies to neutral civil aviation in case of an aerial blockade.
- An aerial blockade can either be strategic or local. The declaration of a strategic blockade is reserved to the Blockading Party’s government. A local aerial blockade may be imposed by a competent commander and is of limited extent and duration (e.g., in preparation of a military operation).
- Every aerial blockade must always be notified to all Neutrals. In the case of a strategic aerial blockade, notification must also be given to the enemy government. However, in the case of a local aerial blockade, notification may be addressed to the authorities of the blockaded area.
- Art. 8 of the 1909 London Declaration: “A blockade, in order to be binding, must be declared in accordance with Article 9, and notified in accordance with Articles 11 and 16.”
- The declaration of an aerial blockade must be as specific as possible, in order to enable neutral aviation to avoid the blockaded area or to leave it before enforcement measures take effect. A lack of specificity may render the declaration void.[734] Moreover, all measures taken by the Blockading Party must conform to the particulars of the declaration.
- In principle, the declaration must provide for a period of grace during which neutral aircraft are allowed to leave the blockaded area. There is no absolute rule as to the duration of such a period.[735] However, in most cases 24 hours are considered reasonable. A period of grace must be granted only if, in fact, neutral aircraft are present in the blockaded area.
- Art. 10 of the London Declaration: “If the operations of the blockading Power, or of the naval authorities acting in its name, do not tally with the particulars, which, in accordance with Article 9 (1) and (2), must be inserted in the declaration of blockade, the declaration is void, and a new declaration is necessary in order to make the blockade operative.”
- Art. 9 of the London Declaration: “A declaration of blockade is made either by the blockading Power or by the naval authorities acting in its name. It specifies: … (3) the period within which neutral vessels may come out.”
- The notification of an aerial blockade must be communicated to all States and not merely to those in the region where the aerial blockade has been established. The reason is that, according to Rule 155, an aerial blockade must be enforced against all aircraft regardless of their nationality or origin.
- While Art. 11 of the 1909 London Declaration provides that the notification to Neutrals must be made “by means of a communication addressed to the Governments direct, or to their representatives accredited to it”,[736] today there is no longer a need for such a formal way of making the establishment of an aerial blockade known to the international community.
- Ordinarily, the Blockading Party will fulfil its obligation by making use of the usual channels established for international aviation. Therefore, a NOTAM will in most cases be sufficient as a most effective and timely means of conveying the information necessary. In other words, a notification through diplomatic channels will be necessary in exceptional circumstances only.
- If, notwithstanding the use of the usual channels available for international aviation, the local authorities in the blockaded area cannot be made aware of the establishment of the aerial blockade, the Blockading Party (or the competent commander) will have to inform them separately by whatever means of communication considered adequate.
- Art. 11 of the London Declaration: “A declaration of blockade is notified (1) To neutral Powers, by the blockading Power, by means of a communication addressed to the Governments direct, or to their representatives accredited to it; (2) To the local authorities, by the officer commanding the blockading force. The local authorities will, in turn, inform the foreign consular officers at the port or on the coastline under blockade as soon as possible.”
(a) The cessation, temporary lifting, re-establishment, extension or other alteration of an aerial blockade must be declared and notified to all States.
[Commentary]
(b) Whenever feasible, a Notice to Airmen (NOTAM) about any changes under paragraph (a) ought to be issued by the Blockading Party in accordance with Rule 55.
[Commentary]
- This Rule is based on Art. 12[737] and on Art. 13[738] of the 1909 London Declaration and is self-explanatory. As to the content of the declaration and the manner of notification see the Commentary on Rule 148 (a) − (b). Again, if feasible, a NOTAM ought to be issued (see Commentary on Rule 148 (c)).
- The obligation under Rule 149 (a) does not apply in cases where, due to stress of weather, the Blockading force has been temporarily withdrawn.[739] This especially holds true if the weather conditions as such prevent any aviation.
- If the Blockading force is withdrawn for any other reason, and the blockade is to be re-established, the same formalities must be observed as if it were established for the first time.
- The mere fact that military aircraft enforcing the aerial blockade are not in the air may not be considered a cessation or temporary lifting. The airspace may be monitored by long-range electronic surveillance (e.g. AWACS), which would enable the Blockading force to immediately respond to any attempt of breaching the aerial blockade. See also paragraph 3 of the Commentary on Rule 151, as well as Rule 154.
- Art. 12 of the London Declaration: “The rules as to declaration and notification of blockade apply to cases where the limits of a blockade are extended, or where a blockade is re-established after having been raised.”
- Art. 13 of the London Declaration: “The voluntary raising of a blockade, as also any restriction in the limits of a blockade, must be notified in the manner prescribed by Article 11.”
- Art. 4 of the London Declaration: “A blockade is not regarded as raised if the blockading force is temporarily withdrawn on account of stress of weather.”
As to the use of a NOTAM, see the Commentary on
Rule 148 (c) and on
Rule 55.
An aerial blockade must not bar access to the airspace of Neutrals.
[Commentary]
- This Rule is based on Art. 18 of the 1909 London Declaration[740] that, in view of the inviolability of neutral territory and neutral airspace, is declaratory of customary international law.
- Since aerial blockade is a method of warfare directed against the enemy, it may not have the effect of preventing access to and egress from neutral airspace. Hence, the Blockading Party is under an obligation to provide free passage to and from neutral airspace if the aerial blockade is established and maintained in the vicinity of the territory of a Neutral.
- In the airspace above straits used for international navigation or above archipelagic sea lanes, leading to a Neutral’s airspace, neutral aviation may not be prevented from using the airspace above these straits or lanes. See Art. 37,[741] Art. 38 (1),[742] Art. 44[743] and Art. 54[744] of UNCLOS.
- Art. 18 of the 1909 London Declaration: “The blockading forces must not bar access to neutral ports or coasts.”
- Art. 37 (“Scope of this Section” on “Transit Passage”) of UNCLOS: “This section applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”
- Art. 38 (1) of UNCLOS: “In straits referred to in article 37, all ships and aircraft enjoy the right of transit passage, which shall not be impeded; except that, if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics.”
- Art. 44 of UNCLOS, see fn. 732.
- Art. 54 of UNCLOS, see fn. 732.
An aerial blockade must be effective. The question whether such a blockade is effective is a question of fact.
[Commentary]
- This Rule is based on Principle 4 of the 1856 Paris Declaration[745] and on Art. 2[746] and Art. 3[747] of the 1909 London Declaration. Its object and purpose is to rule out so-called “paper blockades”, i.e. aerial blockades which have been merely declared and which are enforced randomly or not at all.
- No absolute rule can be laid down as to the strength or position of the Blockading force. All depends on matters of fact and geographical circumstances. Hence, effectiveness is to be judged on the merits of each case. Based on the provisions of the 1856 Paris Declaration and on Art. 2 of the 1909 London Declaration, an aerial blockade would be effective only if it is “maintained by a force sufficient really to prevent access to the coast of the enemy”. This does not mean that every single aircraft must in fact be prevented from either entering or leaving the blockaded area. It is sufficient if the Blockading force is of such a strength or nature that there is a high probability that ingress to and egress from the blockaded area will be detected and prevented by the Blockading Party. In other words, an aerial blockade is to be considered effective if any attempt to leave or enter the blockaded area proves to be a hazardous undertaking.
- For an aerial blockade to be effective, it is not necessary that military aircraft are in the air on a permanent basis. The area may thus be monitored by electronic means of surveillance and/or by UAVs. If the Blockading Party is in a position to immediately respond to an attempted breach of the aerial blockade, the aerial blockade remains effective. See also paragraph 3 of the Commentary on Rule 149 (a).
- Principle 4 of the 1856 Paris Declaration: “Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.”
- Art. 2 of the 1909 London Declaration: “In accordance with the Declaration of Paris of 1856, a blockade, in order to be binding, must be effective — that is to say, it must be maintained by a force sufficient really to prevent access to the enemy coastline.”
- Art. 3 of the 1909 London Declaration: “The question whether a blockade is effective is a question of fact.”
The force maintaining the aerial blockade may be deployed at a distance determined by military requirements.
[Commentary]
- There has always been general agreement that, when judging the effectiveness of an aerial blockade (whether naval or aerial), technological developments are to be taken into account. In view of the evolution of modern weapons, surveillance and communications technology, it is no longer necessary for the Blockading force to be deployed in close vicinity to the blockaded area. The traditional concept of “close blockade” has been replaced by the concept of “long-distance blockade”. Therefore, the Blockading force may be deployed at a distance beyond the range of the enemy’s coastal or other defence systems.
- If the aerial blockade is enforced by military aircraft, the aircraft in question will usually be deployed at some distance (e.g., on aircraft carriers, or on the ground in a safe area). This is not necessarily prejudicial to the effectiveness of the aerial blockade, provided that the conditions of Rule 151 and Rule 154 are complied with. The test of an effective aerial blockade is not the distance of the Blockading force from the blockaded area, but whether there is a reasonable risk that access to and exit from the blockaded area will in fact be prevented. This will be the case if the Blockading Party is in a position to detect an attempted breach of the aerial blockade (e.g., by long-range surveillance, including UAVs) and to react by communicating the relevant information (in real time) to the forces entrusted with the enforcement of the aerial blockade which, for their part, must be capable of reaching the aircraft engaged in a breach in due time. Hence, even long-distance aerial blockades covering a considerable area will remain effective if the Blockading force disposes of the necessary means of surveillance, communication and force projection.
(a) An aerial blockade may be enforced and maintained by a combination of lawful means of warfare, provided that this combination does not result in acts inconsistent with the law of international armed conflict.
[Commentary]
(b) Aircraft in distress must be allowed to enter the blockaded area when necessary.
[Commentary]
- An aerial blockade may be maintained by the Blockading Party through the use of any means of warfare not prohibited under the law of international armed conflict. Therefore, an aerial blockade may be maintained and enforced by military aircraft (including UAVs and UCAVs), missiles, warships, or by a combination thereof.
- No category of aircraft other than military aircraft is allowed to participate in maintaining and enforcing an aerial blockade (see Rule 17 (b)).
- Rule 153 (b) is based on Art. 7 of the 1909 London Declaration[748] and on the customary norm — as reflected in UNCLOS[749] — that assistance must be rendered to those who are in distress in the air or at sea.
- As indicated by the words “when necessary”, Rule 153 (b) is not absolute in character. For instance, access to the blockaded area may be denied if there exist equally safe and timely alternatives for the aircraft in distress to land.
- Art. 7 of the London Declaration: “In circumstances of distress, acknowledged by an officer of the blockading force, a neutral vessel may enter a place under blockade and subsequently leave it, provided that she has neither discharged nor shipped any cargo there.”
- There is an affirmative obligation under both customary and treaty law to render assistance to those who are in distress in the high seas, as affirmed in Art. 98 (1) of UNCLOS (“Duty to render assistance”): “(1) Every State shall require the master of a ship flying its flag, insofar as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, insofar as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.”
To the extent that an aerial blockade is maintained and enforced exclusively by military aircraft, the condition of effectiveness (Rule 151) requires a sufficient degree of air superiority.
[Commentary]
- Rule 154 exclusively applies to aerial blockades maintained and enforced by military aircraft. It does not apply to cases in which an aerial blockade is maintained and enforced by other lawful means of warfare (such as missiles or warships). If these other means of warfare are sufficient to deny the enemy the airspace affected by the aerial blockade, there is no necessity for an additional element of effectiveness, such as air superiority.
- The Group of Experts was in agreement that an aerial blockade, in order to be binding, must comply with the requirements of the principle of effectiveness (see Rule 151). However, there was a division of views on how to determine effectiveness of an aerial blockade by military aircraft. Some members of the Group of Experts took the position that there were no criteria that would make possible an abstract determination of the effectiveness of all aerial blockades. Accordingly, these members preferred to defer to the general and abstract Rule 151. However, the majority of the Group of Experts pointed at the fact that, in case an aerial blockade is maintained and enforced exclusively by military aircraft, such aircraft would be exposed to a considerable risk of attack unless the Blockading force in fact controls the airspace affected by the aerial blockade. Otherwise, interception operations would become unlikely and the aerial blockade would, thus, lose its effectiveness.
- While the majority of the Group of Experts rejected the concept of “air domination” or of “air supremacy” in the context of aerial blockade, it was decided to adopt the term “air superiority”.[750] The Group of Experts was aware that “air superiority” was an operational term of art. Still, it decided in favour of using the expression in this context, not as a legal concept but as a criterion for determining the effectiveness of the aerial blockade. Air superiority can be gained by a combination of lawful methods and means of warfare, including the use of radar and AWACS aircraft.
- The Blockading force does not need to have gained full air superiority in the operational sense. This is made clear by the formulation “sufficient degree of air superiority”. The adjective “sufficient” relates to the purpose of an aerial blockade, i.e. preventing access to and exit from the blockaded area. The degree of air superiority does not need to remain on the same level for the entire duration of the aerial blockade. The determination of the necessary degree of air superiority, as in the case of effectiveness in general, is dependent on the circumstances of each case. Hence, a lesser degree will suffice if the aerial blockade is maintained not exclusively by military aircraft, but also by other means of warfare (such as missiles or warships). The temporal element of “air superiority” is to be determined in light of international air traffic in the region concerned.
- NATO Glossary of Terms and Definitions, at 2-A-11 defines “air superiority” as “that degree of dominance in the air battle of one force over another which permits the conduct of operations by the former and its related land, sea and air forces at a given time and place without prohibitive interference by the opposing force.” The notion “air superiority” is to be distinguished from “air supremacy”, which is defined in the same document (also at 2-A-11) as “that degree of air superiority wherein the opposing air force is incapable of effective interference.”
An aerial blockade must be enforced impartially as regards the aircraft of all States.
[Commentary]
- This Rule is based on the long-standing principle of impartiality, as laid down in Art. 5 of the 1909 London Declaration.[751] This is a necessary corollary to the principle of effectiveness and to the very object and purpose of an aerial blockade. If an aerial blockade is to effectively prevent access to and exit from the blockaded area by aircraft, that purpose would not be achieved if the Blockading Party distinguishes between aircraft of different nationalities.
- Accordingly, an aerial blockade must be enforced as regards all aircraft of any nationality, including civilian aircraft bearing the marks of the Blockading Party or of its co-belligerents. This means that, in principle, neutral military or other neutral State aircraft must be prevented from entering or leaving the blockaded area as well. Neutral military or other State aircraft — despite their sovereign immunity — enjoy no positive right of access to blockaded areas. However, as an exceptional measure, the Blockading Party, or the local commander, may authorize — subject to conditions or restrictions — entry or exit of an individual neutral military aircraft. This exceptional measure is based on Art. 6 of the 1909 London Declaration[752] and on Para. 7.7.3 of NWP.[753]
- Rule 155 does not detract from the validity of Rule 153 (b) relating to the entrance of aircraft in distress in the blockaded area.
- Art. 5 of the 1909 London Declaration: “A blockade must be applied impartially to the ships of all nations.”
- Art. 6 of the 1909 London Declaration: “The commander of a blockading force may give permission to a warship to enter, and subsequently to leave, a blockaded port.”
- Para. 7.7.3 (“Special Entry and Exit Authorization”) of NWP: “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.”
For an aerial blockade to be considered effective under Rule 151, it is required that civilian aircraft believed on reasonable grounds to be breaching, or attempting to breach, an aerial blockade, be forced to land, inspected, captured or diverted. If civilian aircraft clearly resist interception, an order to land and capture, they are at risk of attack after prior warning. As for civilian airliners, Section J applies.
[Commentary]
- It follows from the reference to Rule 151 in the introductory sentence of Rule 156 that a Blockading Party must take action with a view to preventing access to, or exit from, the blockaded area. If the Blockading force decides to remain inactive, the aerial blockade is no longer effective and becomes invalid.
- The wording of the first sentence of Rule 156 does not necessarily imply that interception is mandatory. The important factor is that a civilian aircraft suspected of breaching an aerial blockade, will be “forced to land, inspected, captured, or diverted”. This may be done without prior interception.
- Since neutral civilian aircraft are obliged to respect an aerial blockade that conforms to the legal requirements of publicity and effectiveness, they become liable to inspection, capture or diversion. A breach of an aerial blockade — inbound or outbound — occurs at the moment an aircraft crosses the outer limit of the blockaded area as defined in the respective declaration (see Rule 148).
- An attempt to breach an aerial blockade only occurs in either of the following two sets of circumstances: (i) if an aircraft takes off in the blockaded area with a course evidently set in the direction of the outer limit of the blockaded area; or (ii) if it is in international airspace and clearly on a route destined for the blockaded area.
- Reasonable grounds for concluding that a breach, or attempt to breach, of an aerial blockade has occurred exist if a neutral civilian aircraft that has been summoned (i) gives false information as to its cargo or destination; or (ii) it lingers in the vicinity of the blockaded area, thus leading to reasonable grounds to suspect that it intends to cross the blockade line as soon as the patrol aircraft have left the respective airspace.
- Liability to capture presupposes knowledge of the existence of the aerial blockade. That knowledge may be actual or presumptive.[754] The Blockading Party may rely on an assumption that neutral aviation has acquired the knowledge from a NOTAM, if issued (see Rule 148 (in particular Rule 148 (c)) and Rule 149).
- If a neutral aircraft approaches the blockaded area in ignorance of the aerial blockade (in particular when no NOTAM has been issued), the aircraft must be informed individually about the existence of the aerial blockade by an officer of the Blockading Party (see Art. 16 of the 1909 London Declaration).[755] This can be done through establishing radio communication with the aircraft concerned.
- If civilian aircraft “clearly resist” interception, they become military objectives and are at risk of attack after prior warning (an attack against a civilian aircraft under such circumstances may offer a definite military advantage, since this may be the only means of preserving the effectiveness of the aerial blockade). As for enemy civilian aircraft, see Rule 27 (d). As for neutral civilian aircraft, see Rule 174 (e). As for civilian airliners (be they enemy or neutral), see Rule 63 (e).
- If a civilian aircraft is trying to escape, the escaping aircraft may be pursued by the intercepting military aircraft. As long as the pursuit is not abandoned (“hot pursuit”), it remains at risk of attack. The pursuit will be sufficiently “hot” if the escaping aircraft is continuously tracked by the military aircraft of the Blockading force, such as an AWACS that is an integral part of the Blockading Party. Pursuit must be abandoned as soon as the neutral civilian aircraft enters neutral airspace.
- Since capture is but a means to effectively enforce an aerial blockade, punitive aims may not be pursued. Hence, a civilian aircraft which has successfully escaped capture may not be captured later for the sole reason of having breached, or attempted to breach, an aerial blockade in the past.
- As regards capture of, and attacks on, civilian airliners, see Section J (I) and Section J (III).
- Art. 14 of the 1909 London Declaration: “The liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual or presumptive, of the blockade.”
Art. 15 of the 1909 London Declaration: “Failing proof to the contrary, knowledge of the blockade is presumed if the vessel left a neutral port subsequently to the notification of the blockade to the Power to which such port belongs, provided that such notification was made in sufficient time.”
- Art. 16 of the 1909 London Declaration: “If a vessel approaching a blockaded port has no knowledge, actual or presumptive, of the blockade, the notification must be made to the vessel itself by an officer of one of the ships of the blockading force. This notification should be entered in the vessel’s logbook, and must state the day and hour, and the geographical position of the vessel at the time. If through the negligence of the officer commanding the blockading force no declaration of blockade has been notified to the local authorities, or, if in the declaration, as notified, no period has been mentioned within which neutral vessels may come out, a neutral vessel coming out of the blockaded port must be allowed to pass free.”
The establishment or maintenance of an aerial blockade is prohibited in any one of the following cases:
[Commentary]
(a) Its sole or primary purpose is to starve the civilian population or to deny that population other objects essential for its survival.
[Commentary]
(b) The suffering of the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the aerial blockade.
[Commentary]
Rule 157 (a) and Rule 157 (b) are limited to the effects of an aerial blockade on the civilian population. They are irrelevant to any similar effects on combatants or on civilians directly participating in hostilities.
- Under customary international law, starvation of civilians as a method of warfare is prohibited (see Rule 97).
- Para. 7.7.2.5 of NWP states as its final sentence that “[a] blockade is prohibited if the sole purpose is to starve the civilian population or to deny it other objects essential for its survival.” The majority of the Group of Experts took the position that an aerial blockade is also prohibited if the “primary purpose” is to either starve the civilian population or to deny it objects essential for its survival. Hence, an aerial blockade may be unlawful even if it serves a secondary and minor military purpose.
- An aerial blockade will regularly affect the civilian population of the blockaded area, which will be under an increasing risk of being deprived of objects essential for its survival and, ultimately, of starvation. Still, the blockade would, in such cases, not become of itself illegal under Rule 157 (a). It is made clear by the wording (“sole or primary purpose”) that a blockade remains legal if denying the population objects essential for its survival is but a mere side-effect pursued by the Blockading Party. Therefore, a blockade is not illegal per se if it primarily serves a lawful military purpose. In that case, however, the obligations set out in Rule 157 (b) and in Rule 158 may be applicable.
- The expression “suffering”, as it appears in Rule 157 (b), does not relate to mere inconveniences to the civilian population. The main thrust of Rule 157 (b) is to preclude a “hunger blockade” which causes severe suffering of the civilian population.
- The “suffering of the civilian population” is not confined to extreme instances of a “hunger blockade”. Where a “hunger blockade” is not the issue, the suffering of the civilian population will be unlawful only if it is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated.
- It is necessary to distinguish between the establishment and the maintenance of an aerial blockade. The suffering of the civilian population may not originally be expected to be excessive in relation to the concrete and direct military advantage anticipated. However, later on, there may be empirical evidence to the effect that such excessive suffering is actually taking place. In these circumstances, the aerial blockade has to be lifted, or free passage of foodstuffs and essential supplies is to be allowed in accordance with Rule 158.
Subject to Rule 100, if the civilian population of the blockaded area is inadequately provided with food or other objects essential for its survival, the Blockading Party must provide for free passage of such foodstuffs or other essential supplies, for example by establishing a humanitarian air corridor, subject to the following conditions:
[Commentary]
(a) The Blockading Party retains the right to prescribe the technical arrangements, including inspection, under which such passage is permitted.
[Commentary]
(b) The distribution of such supplies may be made subject to the condition that it will be carried out 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.
[Commentary]
- This Rule is a corollary to Rule 157 and it reemphasizes the general obligation under Rule 100.
- Under the existing law of international armed conflict, when the civilian population in a blockaded area is not provided with food or other objects essential to its survival, the Blockading Party must allow free passage of foodstuffs or essential supplies, in order to avoid that the aerial blockade will become a “hunger blockade”.
- For the purpose of securing the safe passage of relief consignments, the Blockading Party may designate a specified route — “humanitarian corridor”– through which aircraft or other means of transport can enter and leave the blockaded area.
- Rule 158 is “subject to Rule 100” with respect to humanitarian aid. For relief actions from the outside to be undertaken, agreement in non-occupied territory is required of the parties concerned, i.e., in this instance from the Blockading Party. However, agreement by the Blockading Party may not be withheld if it results in starvation of the civilian population as a method of warfare.
- Irrespective of the issue of agreement, the Blockading Party has a right to insist on “technical arrangements”, which include inspection. This is designed to ensure that relief consignments will not be abused for military or other purposes harmful to the Blockading Party.
- Moreover, the Blockading Party may limit the transport of relief consignments to certain quantities, times, routes or means of transport, in order to prevent both infringements of the aerial blockade’s effectiveness and diversion of the relief consignments to enemy armed forces.
- Rule 158 (b) is intended to safeguard the minimal concerns of the Blockading Party in that it is allowed to insist on the distribution of supplies being carried out under supervision. The supervision may be entrusted either to a Protecting Power (assuming that there is a Protecting Power) or alternatively to an impartial humanitarian organization (such as the ICRC).
- The institution of the “Protecting Powers” (i.e., a State appointed by consent in order to safeguard the interests of a Belligerent Party)[756] has been introduced in the realm of the law of international armed conflict in the Geneva Conventions of 1929,[757] reiterated in the Geneva Conventions of 1949,[758] and reinforced in AP/I.[759] In practice, the consent to the operation of a Protecting Power is only rarely secured. Hence the need for other options, especially performance of the humanitarian functions of a Protecting Power by international humanitarian organizations, such as the ICRC.
- Art. 5 (1) of AP/I, see fn. 759.
- 1929 Geneva Convention relative to the Treatment of Prisoners of War, where “protecting Powers” are referred to in Arts. 39, 42, 43, 77, 86 and 87.
- See, e.g., Art. 9 of GC/IV: “The present Convention shall be applied with the cooperation and under the scrutiny of the Protecting Powers whose duty it is to safeguard the interests of the Parties to the conflict. For this purpose, the Protecting Powers may appoint, apart from their diplomatic or consular staff, delegates from amongst their own nationals or the nationals of other neutral Powers. The said delegates shall be subject to the approval of the Power with which they are to carry out their duties. The Parties to the conflict shall facilitate to the greatest extent possible the task of the representatives or delegates of the Protecting Powers. The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention. They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties.”
- Art. 5 of AP/I (“Appointment of Protecting Powers and of their substitute”): “(1) It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter alia the designation and acceptance of those Powers, in accordance with the following paragraphs. Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict. (2) From the beginning of a situation referred to in Article 1, each Party to the conflict shall without delay designate a Protecting Power for the purpose of applying the Conventions and this Protocol and shall, likewise without delay and for the same purpose, permit the activities or a Protecting Power which has been accepted by it as such after designation by the adverse Party. (3) If a Protecting Power has not been designated or accepted from the beginning of a situation referred to in Article 1, the International Committee of the Red Cross, without prejudice to the right of any other impartial humanitarian organization to do likewise, shall offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent. For that purpose it may inter alia ask each Party to provide it with a list of at least five States which that Party considers acceptable to act as Protecting Power on its behalf in relation to an adverse Party and ask each adverse Party to provide a list or at least five States which it would accept as the Protecting Power of the first Party; these lists shall be communicated to the Committee within two weeks after the receipt or the request; it shall compare them and seek the agreement of any proposed State named on both lists. (4) If, despite the foregoing, there is no Protecting Power, the Parties to the conflict shall accept without delay an offer which may be made by the International Committee of the Red Cross or by any other organization which offers all guarantees of impartiality and efficacy, after due consultations with the said Parties and taking into account the result of these consultations, to act as a substitute. The functioning of such a substitute is subject to the consent of the Parties to the conflict; every effort shall be made by the Parties to the conflict to facilitate the operations of the substitute in the performance of its tasks under the Conventions and this Protocol. (5) In accordance with Article 4, the designation and acceptance of Protecting Powers for the purpose of applying the Conventions and this Protocol shall not affect the legal status of the Parties to the conflict or of any territory, including occupied territory. (6) The maintenance of diplomatic relations between Parties to the conflict or the entrusting of the protection of a Party’s interests and those of its nationals to a third State in accordance with the rules of international law relating to diplomatic relations is no obstacle to the designation of Protecting Powers for the purpose of applying the Conventions and this Protocol. (7) Any subsequent mention in this Protocol of a Protecting Power includes also a substitute.”
The Blockading Party must 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 inspection, under which such passage is permitted.
[Commentary]
- This Rule is based on Para. 104 of the SRM.[760] See also Art. 23 of GC/IV.[761]
- Rule 159 is complementary to Rule 158, except that the element of consent implied in the subjection of Rule 158 to Rule 100 (see paragraph 4 of the Commentary on the chapeau to Rule 158) is not included in Rule 159. Allowing the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces (as well as POWs who may be held in custody in the blockaded area) is, therefore, an absolute requirement.
- Although the agreement of the Blockading Party is not required for the operation of Rule 159, the Blockading Party remains entitled to prescribe technical arrangements — including inspection — to ensure that there is no abuse.
- Para. 104 of the SRM/ACS: “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.”
- Art. 23 of GC/IV: “Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores and objects necessary for religious worship intended only for civilians of another High Contracting Party, even if the latter is its adversary. It shall likewise permit the free passage of all consignments of essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases. The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing: (a) that the consignments may be diverted from their destination, (b) that the control may not be effective, or (c) that a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods. The Power which allows the passage of the consignments indicated in the first paragraph of this Article may make such permission conditional on the distribution to the persons benefited thereby being made under the local supervision of the Protecting Powers. Such consignments shall be forwarded as rapidly as possible, and the Power which permits their free passage shall have the right to prescribe the technical arrangements under which such passage is allowed.”
