About Bryan Peeler

My work is related to understanding the politics underlying international law.

Russian “Blockade” of Ukraine?

The ICRC Casebook defines “blockade” in the following way:

An operation involving naval and air forces by which a belligerent completely prevents movement by sea from or to a port or coast belonging to or occupied by an enemy belligerent. To be mandatory, that is, for third States to be obliged to respect it, the blockade must be effective. This means that it must be maintained by a force sufficient to prevent all access to the enemy coast. The belligerent must declare the existence of the blockade. The belligerent must also specify and the starting date, geographical limits of the blockaded territory and time allowed to neutral vessels to leave. This declaration must be notified to all neutral Powers and to the local authorities.

Back in February, Russia issued a warning that significant portions of the Black Sea were closed to commercial traffic. According to US intelligence reports, the Russian navy seeks to control a significant portion of the Black Sea, the Sea of Azov, and is conducting navel activities along the southern coast of Ukraine and the Crimean Peninsula – which it illegally annexed and has occupied since 2014. However, Russia’s warning about commercial traffic doesn’t specify a starting staring date, geographical limits, nor time period for neutral ships to leave. So, while Russia may be able to prevent access to Ukrainian ports, it’s not obvious its actions meet the legal standard for a blockade.

Nevertheless, there may be good political reasons for overtly challenging Russia here. There are escalation worries that need to be taken seriously.

That said, there is a definite humanitarian issue involved her that needs to be taken seriously. According to the United Nations, global food prices are nearly 30% higher than this time last year. The World Bank is releasing approximately $12 billion in support of food insecurity programs. Russia and Ukraine together account for about 30% pf the world’s supply of wheat. There are approximately 20 million tonnes of grain stuck in Ukrainian ports because of Russia’s invasion and Ukraine has accused Russia of stealing 400 000 tonnes of wheat and farm equipment and shipping it back to Russia.

Of course, the Russian government denies these claims. While the US Secretary of State Antony Blinken has accused Russia of weaponizing food and holding grain for millions of people around the world hostage, Russia’s UN Ambassador Vassily Nebenzia has accused Ukraine of preventing ships from leaving because of its mining of Ukrainian ports. Though Russia has made overtures to allowing ships carrying grain to leave, it will only do so if sanctions are lifted. The issue of sanctions is beside the point, though, because they already make an exception for Russian exports of food.

So, how should the world respond? The US has rejected direct military involvement in the issue and rightly so for the escalations worries already mentioned. While the European Commission has proposed using rail to transport Ukrainian grain out of the country, these could be targeted by Russian military operations. Turkey has responded by Montreux Convention which regulates the access of warships to the Black Sea but Russia can easily use commercial vessels to get around this.

Lithuania – backed by the UK – has proposed a navel “coalition of the willing” to get Ukrainian grain out of the country, while explicitly saying NATO should not be involved. Given the humanitarian nature of the food crisis, this policy makes sense. Russia has said it is ready to provide a “humanitarian corridor” to ships carrying food from Ukraine, but it will only do so in exchange for the lifting of sanctions. However, the sanction should not be lifted. Russia is in violation of one of the most important norms of the post-World War II era – the use of force to take territory. We must remain united against Russian aggression.

Sgt. Bowe Bergdahl Prisoner Exchange

The release of US Army Sgt. Bowe Bergdahl is welcome news. Sgt. Bergdahl, who had been held captive by the Taliban for five years, was released as part of a prisoner exchange negotiated between the US government and the Taliban.

This morning over at the Lawfare blog John Bellinger – former US State Department legal ad visor – argued that, as a matter of international law, these detainees would probably have to be released by the end of the year anyway when US combat operations in Afghanistan come to a close. Article 118 of the Geneva Prisoner of War Convention states that, “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” According to Bellinger: “The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan.”

But, are these detainees really POWs since they consciously reject the law of armed conflict? In such a case Article 118 would not apply. I don’t see how this matters in the case of an exchange, though, since the decision is ultimately a policy one and not about the legal status of the 5 Afghan detainees.

Many Republicans are also questioning the exchange claiming this sends a message to terrorist groups like the Taliban that the US will negotiate with them. But such exchanges have a long history in armed conflict. Even terrorist groups can have rational demands, though there is no need to give in to all of them.As Joshua Hurst tweeted this morning, “In the real world, there are just more distasteful people who nevertheless have to be dealt with.”

There is also the accusation that Sgt.Bergdahl is a deserter and therefore not entitled to have US troops risk their lives to rescue him. But that determination is for the US military to decide. And if it is found to be the case, an appropriate punishment can be meted out then by the proper authorities.

You never leave someone behind.

There is no Civil War in the US

Contrary to what Henry Porter may think, there is no civil war going on in the US. Porter’s claim is based on the total number of firearm deaths in the country: The annual toll from firearms in the US is running at 32,000 deaths and climbing, even though the general crime rate is on a downward path (it is 40% lower than in 1980). If this perennial slaughter doesn’t qualify for intercession by the UN and all relevant NGOs, it is hard to know what does. But total deaths is not the only criteria for a civil war.

Other criteria can be found in the Commentaries to the Geneva Conventions (1949); in particular Common Article 3 of Geneva Convention III.

One is the existence of a “Party in revolt against the de jure government (which) possess an organized military force, an authority responsible for its acts, acting within a determined territory and having the means of respecting and ensuring respect for the Convention.” Second is that “the legal government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.” Third, there must be a recognition of the insurgents as belligerents by the state. Finally the insurgents must have the “characteristics of a state.” Obviously none of these things exist in the US: There is no “insurgency” occurring in the US.

But what of Porter’s more straightforward humanitarian claim? Is there some agreed upon international norm at stake in the number of gun deaths that occur in the US such that “intercession by the UN and all relevant NGOs” is necessary? The US – probably the most important political actor there is –  doesn’t appear to think such a norm exists. And who would enforce this norm anyway?

Though the situation of gun violence is the US is definitely tragic, it is not clear that the world should intervene.