Rule 157
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.
Categories: Section V: Aerial Blockade
