Contraband
(1) (n) “Contraband” means goods which are ultimately destined for territory under the control of an enemy Belligerent Party and which are susceptible for use in international armed conflict.
[Commentary]
- This definition is based on Para. 148 of the SRM/ACS[55], as well as on Para. 7.4.1. of NWP[56] and on Para. 12.8 of the UK Manual.[57]
- The construct of contraband is only relevant to (i) neutral cargo; and (ii) neutral aircraft. As far as enemy cargo on board enemy aircraft is concerned, it is always susceptible to capture as prize (see Section U (I)).
- Two cumulative elements are necessary for goods to qualify as “contraband”: (i) they must be susceptible for use in international armed conflict; and (ii) they must be ultimately destined for enemy, or enemy controlled, territory.
- In traditional practice, there were two categories of contraband.[58] Absolute contraband referred to goods that, by nature, were obviously destined for use during the hostilities (see Art. 22 of the London Declaration). Conditional contraband, by contrast, were goods that could serve either peaceful or military purposes (see Art. 24 of the London Declaration). Belligerent Parties were entitled to issue contraband lists upon commencement of hostilities, in order to place Neutrals on notice of those goods it considered to be absolute (see Art. 23 of the London Declaration) or conditional (see Art. 25 of the London Declaration) contraband, as well as those expressly considered to not be contraband (“free goods”, see Arts. 27 to 29 of the London Declaration). During WWII and in post-WWII State practice, the traditional distinction between absolute and conditional contraband has eroded. In view of that practice, the Group of Experts decided that this distinction has become obsolete.
- Goods “susceptible for use in international armed conflict”, inter alia, comprise weapons, munitions, all other means of warfare, as well as items destined for use by the enemy’s armed forces, such as weapons, munitions, uniforms, foodstuffs, or fuel. Belligerent Parties may publish contraband lists at the initiation of hostilities to notify Neutrals of the type of goods considered to be contraband, as well as those not considered to be contraband at all. The precise nature of a Belligerent Party’s contraband list may vary according to the circumstances of the conflict[59] because it is impossible to define in advance which goods will be “susceptible for use in international armed conflict”. It is a matter of dispute whether there is an obligation for Belligerent Parties to publish contraband lists. In any event, weapons and munitions qualify as contraband even if they are not included in such a list. Foodstuffs or other supplies essential for the survival of the civilian population, and medical supplies for the civilian population or for the wounded and sick members of the armed forces, may not be declared contraband.[60]
- The second element, i.e. that the goods must be “ultimately destined” for enemy, or enemy controlled, territory has two important implications. The first implication is that the doctrine of continuous voyage applies to all goods lawfully considered contraband. Hence, goods that, according to the cargo documents, are ostensibly bound for neutral territory, qualify as contraband if there are reasonable grounds for assuming that they will be carried from neutral to enemy, or enemy controlled, territory.
- The second implication is that the concept of contraband is not applicable to enemy exports on neutral civilian aircraft. The only lawful method of warfare by which enemy exports on board neutral aircraft (or vessels) may be prevented is, in the view of the majority of the Group of Experts, an aerial (or naval) blockade. For aerial blockade, see Section V.
- Rule 1 (n) is without prejudice to the powers of the UN Security Council under Chapter VII of the UN Charter. Hence, an embargo decided upon by the UN Security Council may apply to goods that are not “susceptible for use in international armed conflict”.
- Para. 148 of the SRM/ACS: “Contraband is defined as goods which are ultimately destined for territory under the control of the enemy and which may be susceptible for use in armed conflict.”
- Para. 7.4.1 of NWP: “Contraband consists of goods destined for the enemy of a belligerent and that may be susceptible to use in armed conflict.”
- Para. 12.8 of the UK Manual: “‘Contraband’ means goods which are ultimately destined for territory under the control of the enemy and which may be susceptible for use in armed conflict.”
- The London Declaration was signed but not ratified. Most of its provisions, however, are regarded as reflective of customary international law. The Declaration is outdated as regards the distinction between absolute and relative contraband.
- Para. 7.4.1 of NWP: “The precise nature of a belligerent’s contraband list may vary according to the circumstances of the conflict.”
- Arts. 27 – 29 of the London Declaration. See, e.g., also subparagraphs (1) and (2) of Para. 7.4.1.1 of NWP (“Exemptions to Contraband — Free Goods”): “Certain goods are exempt from capture as contraband even though destined for enemy territory. Among these items are free goods such as: (1) Articles intended exclusively for the treatment of wounded and sick members of the armed forces and for prevention of disease. (2) Medical and hospital stores, religious objects, clothing, bedding, essential foodstuffs, and means of shelter for the civilian population in general, and women and children in particular, provided there is not serious reason to believe that such goods will be diverted to other purpose, or that a definite military advantage would accrue to the enemy by their substitution for enemy goods that would thereby become available for military purposes.”
