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.

Emmett MacFralane on The Prudent Court

Please take a look at University of Waterloo political scientist Emmett MacFarlane’s The Prudent Court: Anti-terrorism, charter rights and judicial caution from Maclean Magazine.

Emmett, who specializes in the Supreme Court if Canada writes on the recent decision upholding the anti-terrorism provisions of the Criminal Code.

Hamas and the Law of Occupation

Two questions that needs to be answered in regarding to the current conflagration in Gaza and the West Bank is the following: Are the Gaza strip and West Bank “occupied” and, if so, then what parts of international humanitarian law apply?

Article 42 of the 1907 Hague Convention says that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” According to Common Article 2 of the Geneva Conventions of 1949, the Conventions apply to any territory occupied during international hostilities. They also apply in situations where the occupation of state territory meets with no armed resistance.

Though there is no Palestinian state, any armed conflict between Israel and the Palestinians would be considered an international armed conflict under Article 1(4) of Additional Protocol I which confers international status on any armed conflict where “peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.” The term “alien occupation” was written into the Protocols specifically to apply to the Israeli-Palestinian conflict.

However, since the unilateral withdrawal of Israeli forces from Gaza in 2005 it is no longer “occupied.” Despite what the International Court of Justice, United Nations General Assembly, and United Nations Security Council say the attribution of “occupation” to a territory is a statement of fact and not a political decision.

The status of the West Bank is different. The Israeli High Court of Justice has ruled that Israel holds the West Bank under “belligerent occupation” while again the International Court of Justice, United Nations General Assembly, and United Nations Security Council regard Israel as an occupying power. As such, the Geneva Conventions would apply in the West Bank.

Yet, given that the Court has ruled an occupation exists only Geneva Convention IV would apply here. Hamas, as a non-state entity cannot – by definition – be a signatory to the Conventions and Israel is not a signatory to Additional Protocol I. As such, Hamas fighters are not entitled to the protections of the first three Geneva Conventions nor Additional Protocol I.

Another key aspect of the international humanitarian law in general and belligerent occupation in particular is the prohibition on reprisals. I’ll deal with this aspect of the conflict in a subsequent post tomorrow.