Blockade at Niac

The Military Law and the Law of War Review, Vol. 61 No. 1, 2023, pp.
39–58
Challenges of applying the law of naval

warfare in non-international armed
conflict at sea
Martin Fink
Captain Royal Netherlands Navy, associate professor Faculty of Military Sciences, Netherlands Defence
Academy (FMW/NLDA)
The question of application of the law of naval warfare during non-international armed
conflict (NIAC) at sea is still an area of uncharted waters. Some discussion on the matter
surfaced in reaction to the Israeli naval blockades against Hamas and Hezbollah and the
applicability of the law of blockade in NIAC, mainly limited to noting possible other his-
torical examples. At this stage in the development of the law of armed conflict at sea in
NIAC, there are no clear legal opinions or any direction to where this issue might go
to. This article offers an introductory view on some challenges of applying the law of
naval warfare during non-international armed conflict and a discussion on the use of
the law of blockade in particular.
La question de l’application du droit de la guerre maritime dans les conflits armés non
internationaux (CANI) en mer relève d’un domaine totalement inexploré. Un débat sur
la question a refait surface en réaction aux blocus navals israéliens contre le Hamas et
le Hezbollah et à l’applicabilité du droit de blocus dans les CANI, se limitant principale-
ment à la mention d’autres exemples historiques éventuels. Il n’existe pas de position jur-
idique claire ni d’orientation quant à l’évolution de cette question à ce stade du
développement du droit des conflits armés sur mer dans les CANI. Ce document présente
un aperçu de certains défis dans le cadre de l’application du droit de la guerre maritime
dans les conflits armés non internationaux et un débat sur le recours au droit de blocus en
particulier.
De kwestie van de toepassing van het zeeoorlogsrecht tijdens niet-internationale gewa-
pende conflicten (NIGC) op zee bevindt zich in volledig onbekende wateren. In reactie
op de zeeblokkades van Israël tegen Hamas en Hezbollah en de toepasselijkheid van het
blokkaderecht in NIGC is hierover enige discussie ontstaan, die zich voornamelijk beperkte
tot het vermelden van mogelijke andere historische voorbeelden. In dit stadium van de ont-
wikkeling van het recht van de gewapende conflicten op zee in NIGC zijn er geen duidelijke
juridische opvattingen of enige richting waarin deze kwestie zich zou kunnen begeven. Dit
artikel biedt een inleiding op enkele uitdagingen bij de toepassing van het zeeoorlogsrecht
tijdens niet-internationale gewapende conflicten en een discussie over het gebruik van het
blokkaderecht in het bijzonder.
La cuestión de la aplicación del Derecho de la Guerra Naval durante los conflictos arma-
dos no internacionales (NIAC, por sus siglas en inglés) en la mar es un área de aguas
totalmente desconocidas. Surgió cierta discusión en el pasado sobre este asunto en rela-
ción a los bloqueos navales israelíes contra Hamás y Hezbolá puestos en relación con
la aplicabilidad de la Ley de Bloqueo en los NIAC, pero esta se limitó principalmente a
señalar otros posibles ejemplos históricos. En esta etapa del desarrollo del Derecho de
© 2023 The Author Journal compilation © 2023 Edward Elgar Publishing Ltd
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40 The Military Law and the Law of War Review, Vol. 61 No. 1
los Conflictos Armados en la mar durante un NIAC no hay opiniones jurídicas claras, ni
dirección hacia dónde podría encaminarse este asunto. El presente artículo ofrece una
visión introductoria sobre algunos desafíos de la aplicación del Derecho de la Guerra
Naval durante un conflicto armado no internacional y una discusión sobre el uso del dere-
cho de bloqueo en particular.
La questione del diritto di guerra navale applicato ai conflitti armati non-internazionali in
mare è un aspetto ancora totalmente inesplorato. Alcune discussioni sulla questione, limit-
ate principalmente ad annotare altri possibili precedenti storici, emersero in reazione ai
blocchi navali israeliani contro Hamas ed Hezbollah e relativamente all’applicabilità
della legge sul blocco navale nei conflitti armati non.internazionali. Ad oggi, nell’evolu-
zione del diritto umanitario marittimo nei conflitti armati non-internazionali non ci sono
chiare opinioni giuridiche o possibili interpretazioni verso le quali indirizzare l’argo-
mento. Questo articolo propone un’analisi introduttiva alle sfide dell’applicazione del
diritto di guerra navale nei conflitti armati non-internazionali e, in particolare, un dibat-
titto sull’applicazione della legge sul blocco navale.
Die Frage der Anwendung des Seekriegsrechts während nicht internationaler bewaffneter
Konflikte (NIBK) auf See befindet sich in völlig unbekannten Gewässern. Infolge der israe-
lischen Seeblockaden gegen die Hamas und die Hisbollah und der Anwendbarkeit des
Blockaderechts in NIBK haben diesbezüglich einige Diskussionen stattgefunden, die sich
hauptsächlich auf die Erwähnung möglicher anderer historischer Beispiele beschränkten.
In diesem Stadium der Entwicklung des Rechts der bewaffneten Konflikte auf See in NIBK
gibt es keine klaren Rechtsauffassungen bzw. keine Anzeichen, wohin sich diese Frage
entwickeln könnte. Dieser Artikel bietet eine Einleitung zu einigen Herausforderungen
bei der Anwendung des Seekriegsrechts während nicht internationaler bewaffneter
Konflikte und eine Debatte über die Verwendung des Blockaderechts im Besonderen.
Keywords: law of naval warfare, non-international armed conflict, naval blockades, IHL
at sea, San Remo Manual
1 INTRODUCTION
The law of naval warfare is a specialized subset of rules in international humanitarian

law (IHL). One of its special features is that the rules comprising the law of naval war-
fare were constructed to apply only during international armed conflict (IAC).1 In recent
years, the issue of IHL-rules applicable in non-international armed conflict (NIAC) has
received much attention due to the many conflicts considered non-international in
character and the perceived lack of protective rules applicable in those conflicts.
These conflicts, and the legal debates accompanying them, raise the question whether
the applicability of the law of naval warfare should also be reconsidered in the context
of NIAC. The San Remo Manual on International Law Applicable to Armed Conflicts
at Sea (SRM), adopted in 1994, which contains for the most part a contemporary resta-
tement of the law applicable to armed conflict at sea, mentions with regard to NIAC:
‘Although the provisions of this Manual are primarily meant to apply to international
armed conflicts at sea, this has intentionally not been expressly indicated … in order
1. W Heintschel von Heinegg, ‘The law of military operations at sea’ in TD Gill and D Fleck
(eds), The Handbook of the International Law of Military Operations (2nd edn, Oxford Univer-
sity Press, 2015) 375–421.

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Challenges of applying the law of naval warfare in non-international armed conflict at sea 41
not to dissuade the implementation of these rules in non-international armed conflicts

involving naval operations.’2 The Manual, therefore, appears to take a careful but
somewhat positive stance towards the possibility of applying the law of naval warfare
during NIAC. Considering that the Manual was drafted in the first half of the 1990s, it
very much focused on restating existing law while also incorporating developments of
the international law of the sea that greatly developed through the adoption of the
United Nations Convention on the Law of the Sea (UNCLOS). The Manual as it stands
does not suggest any indicators, discussion or ideas towards applying some of its rules
to NIAC. In the abundant literature and scholarly opinions considering the law of
NIAC, few have put forward thoughts on developing the law of naval warfare to
apply during NIAC.3 Discussion on the subject surfaced in response to the Freedom
Flotilla incident in 2010 and whether the Gaza naval blockade by Israeli Defence Forces
(IDF) in 2009 was established in a situation of international or non-international armed
conflict.4 It also prompted signs pointing towards a more palpable openness to applying
parts of the law of naval warfare in NIAC. The Turkel Report, one of the reports drafted
in the aftermath of the incident, mentions for instance that ‘It is likely there will be a
willingness on the part of courts and other bodies to recognize that the rules governing
the imposition and enforcement of a naval blockade are applicable to non-international
armed conflicts.’5
This article explores some challenges, in an introductory manner, in applying the
law of naval warfare in NIAC. It is divided into three sections and a Conclusion.
Section 2 contains a general introduction to the subject focusing on the scope, nature,
legal construct and practice of the law of naval warfare in relation to NIAC. Section 3
discusses the thresholds and applicable law for a NIAC to exist at sea. Section 4
considers the specific subject of blockade through a NIAC-lens.
2 THE REASON WHY (NOT)
As a start, it is helpful to first discuss some general features and issues of this legal
sub-regime of IHL to understand the discussions on and difficulties of applying the
2. L Doswald-Beck, San Remo Manual on International Law Applicable to Armed Conflicts

at Sea (Cambridge University Press, 1995) 73.
3. See e.g. E Shamir-Borer, ‘The Revival of Prize Law – An Introduction to the Summary of
Recent Cases of the Prize Court in Israel’ (2020) 50 Israel Yearbook on Human Rights 349–71;
R McLaughlin, ‘Does the law of naval warfare apply in NIACs at sea? Well sort of …’ in D Stephens
and M Stubbs (eds), The Law of Naval Warfare (lexisNexis, Butterworths, 2019) 321–38; MD
Fink, ‘The right of visit on foreign flagged vessels on the high seas in non-international armed
conflict’ (2018) 1 Operational Maritime Law 245–54; P Drew, The Law of Maritime Blockade.
Past, Present, and Future (Oxford University Press, 2017); W Heintschel von Heinegg, ‘Methods
and Means of Naval Warfare in Non-International Armed Conflicts’ (2012) 88 Non-International
Armed Conflict in the Twenty-first Century. International Law Studies 211–36; J Kraska, ‘Rule
Selection in the Case of Israel’s Naval Blockade of Gaza: Law of Naval Warfare or Law of
the Sea?’ (2011)13 Yearbook of International Humanitarian Law 367–95; R McLaughlin, ‘The
Law Applicable to Naval Mine Warfare in a Non-International Armed Conflict’ (2014) 90 Inter-
national Law Studies 475–98.
4. See e.g. D Guilfoyle, ‘The Mavi Marmara incident and blockade in armed conflict’ (2011)
81(1) The British Yearbook of International Law 171–223.
5. The Public Commission to Examine the Maritime Incident of 31 May 2010 (23 January
2011) 49.

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law of naval warfare in NIAC. Three subjects are touched upon: the scope, nature and
legal structure of the law of naval warfare.
2.1 Scope of the law of naval warfare

The first issue is the question is of what actually belongs to the sub-regime of the law of
naval warfare. Although the distinction between Hague Law and Geneva Law has for
the most part disappeared, terms as ‘IHL at sea’ and ‘the law of naval warfare’ do not
necessarily represent the same thing. The first considers the mostly protective measures
of IHL at sea, in particular the rules of the Second Geneva Convention for the Ameli-
oration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea (GCII), but also includes general rules on targeting. The latter mostly concerns the
use of specific means and methods of naval warfare, prize law and rules on maritime
neutrality. Where to draw the line between IHL at sea and the law of naval warfare stum-
bles to a certain extend on the difficulty of intertwining strands of Hague and Geneva
Law. Clearly, the law of naval warfare contains hard-core naval matters that are distinct
from IHL at sea, such as the law of blockade or the law of contraband, which deal with
the State’s belligerent rights to enforce measures of economic warfare during interna-
tional armed conflict, or specific rules on the use of naval mines and torpedoes. But
other subjects are less easy to categorize. For example, rules regarding hospital ships,
have through their development in treaties been part of both strands. Nowadays, the
rules on hospital ships are firmly rooted in GCII and in that sense a subject of IHL at
sea. On the other hand, hospital ships are often only discussed in the context of the spe-
cial maritime targeting rules and within the context of maritime neutrality during naval
warfare. But also more generally, issues of IHL at sea are sometimes categorized as part
of the law of naval warfare.6 Although categorization of subjects is to a certain extent
only academically interesting, where we draw the line as to what qualifies as the law of
naval warfare matters in the sense that the question of applicability of the law of naval
warfare is affected by this. The protective rules of IHL at sea might be more readily
accepted as applicable in NIAC. And if considered as (also) part of the law of naval
warfare, the general point of view of non-applicability of this regime in NIAC may be
less strict than usually commented on. The 2017 updated commentary to GCII does
not discuss whether the Convention also applies to NIAC. Although unfortunate,
this is no surprise because this question falls outside the scope of the updated commen-
tary. What the commentary does do, however, is underline that provisions in GCII
have the status of international customary law. One such example is the duty to rescue
ex Article 18 GCII, which ‘exists also under customary international law’.7 Referen-
cing the IHL-customary law study,8 the ICRC argues that the rule might also apply
during a NIAC. In other words, warships during a NIAC at sea would have the obliga-
tion to render assistance to the wounded, sick and shipwrecked within the boundaries
of Article 18 GCII. In this case not only one’s own forces, but therefore also the
wounded, sick and shipwrecked non-state adversaries. The same discussion on
6. See for instance the title of Peter Maurer’s paper that is titled ‘Protection consideration in
the law of naval warfare: The Second Geneva Convention and the role of the ICRC’, which
solely deals with the application of GCII. P Maurer, ‘Protection consideration in the law of
naval warfare: The Second Geneva Convention and the role of the ICRC’ (2016) 98(2) Inter-
national Review of the Red Cross 635–38.
7. 2017 Commentary, para 1621, p 581.
8. See e.g. Rules 109–111 of the ICRC Customary international Humanitarian Law (2005).

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categorization applies to the application of general targeting rules at sea and the dis-
tinct maritime targeting rules based on prize law that consider targeting of enemy
and neutral merchant vessels.9 The first applies, through customary law, equally in
IAC and NIAC,10 whereas maritime targeting based on prize law does not.11
2.2 Nature
A second point to note is the nature of the law of naval warfare. The rules of that
regime are generally not considered to aim at protecting persons from a humanitarian
perspective, but rather as a set of belligerent rights for States during IAC which allow
States to enforce mostly measures of economic warfare against the opponent State.
Sea-power of a State relies on its naval forces to play their part in either engaging
and degrading enemy forces and if needs be, imposing economic measures at sea as
part of a State’s strategy of economic warfare against the opponent State in order to
ultimately halt warfighting endurance. In this context, belligerent rights have histori-
cally grown in international armed conflict. These rights are largely of customary
nature.12 Because belligerent rights basically impact on rights of other States, it is
not an automatism that these rights are also accepted by States in other circumstances,
such as in NIAC. Belligerent rights are not protective for individuals against the con-
sequences of warfighting, which has been driving the discussion on extending protec-
tive rules into NIAC. Whereas in the discussion of providing adequate protective rules
of IHL in NIAC, the merging of both strands into one single body of law that applies in
both IAC and NIAC is one view of how IAC-rules become NIAC law. Heintschel von
Heinegg notes on this method in relation to the law of naval warfare in NIAC that:
They maintain that in both international and non-international armed conflict the parties are
increasingly bound by the same rules, while ignoring the fact that the law of international
armed conflict offers belligerents certain rights, especially vis-a.-vis the nationals of other
States (neutrals). This especially holds true for the law of naval warfare, which provides
for prize measures, blockade and various maritime zones. It is doubtful that the proponents
of merger would be prepared to accept the exercise of the full spectrum of belligerent rights
during a non-international armed conflict, even if exercised only by the State actor.13
Although one can certainly agree with this statement, arguably there are also subjects
where rules might merge into a NIAC situation without much discussion. One subject
for example could be the use of certain means. The rule on torpedoes could in fact be
said to be protective in nature. Torpedoes when used must become harmless when
they have completed their run.14 Such a rule would probably not have much trouble
being accepted in a NIAC.
9. See W Boothby, The Law of Targeting (Oxford Public International Law, 2012) 301–22.
10. M Schmitt, ‘Targeting’ in Gill and Fleck (fn 1) 305–306.
11. Interestingly, the Danish manual on the law of war (2020), at p 606, appears not to make
any difference between general targeting law and maritime targeting law as it mentions that the
rules applicable to hostilities at sea, such as the special means of naval warfare, would have to be
complied with.
12. See on discussion on the continuance of the existence of belligerent rights at sea, ch 8 of
A Clapham, War (Oxford University Press, 2021) 324–90.
13. Heintschel von Heinegg, ‘Methods and Means of Naval Warfare in Non-International
Armed Conflicts’ (fn 3) 212.
14. See s 79 SRM.

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This example also underlines that it is questionable whether it is useful to discuss

the applicability of the whole sub-regime of the law of naval warfare to apply in NIAC.
It would perhaps be more opportune to concentrate on specific subjects within the law
of naval warfare and further those per specific issue, which might change the black-
and-white point of view that the law of naval warfare does not apply to a view
where in principle the law of naval warfare only applies in IAC. Also, although it
is academically beneficial to view this issue on the level of fundamental structures
underlying the law of naval warfare, arguably, practice and law in naval operations
develops along the lines of applying only certain elements of method and means,
such as the use of mines, blockades or belligerent visit and search. In other words,
it may not be realistic to deal with the issue of application of the law of naval warfare
in NIAC as a whole.
One final comment regarding the nature of the law of naval warfare is that one can
easily imagine that there is no incentive from humanitarian orientated actors to start
thinking about applying belligerent rights to NIAC. If such thinking would exist, it
would probably only emerge in the context of cases where belligerent rights are
applied in NIAC and would impact on human life. One such example is naval block-
ades, which, arguably, could lead to starvation of the population. The debates deriving
from the Yemen conflict may serve as an example.15 It is, therefore, more logical that
possible development of the law is mostly pushed by States in their needs to use cer-
tain means and methods in conflict.
2.3 Legal structure

Next to scope and nature, a third point to mention concerns the legal construct of the
law of naval warfare. As mentioned above, belligerent rights accepted by States in an
IAC are not automatically accepted in the context of a NIAC because this would
impact on other States’ rights that have not been accepted. The fact that, for instance,
the law of blockade creates belligerent rights for the blockading party against foreign
flagged vessels, who otherwise could not be stopped, searched and seized without flag-
state consent, is the primary argument against applying the legal concept of blockade
to NIAC. It affects the rights of others not involved in the NIAC by impairing the free-
dom of navigation and exclusive jurisdiction over a vessel by a flag state not involved
in the conflict. The main difficulty in applying the law of naval warfare in a situation
other than IAC therefore lies primarily in the legal construct of the rules. Most of the
rules are in essence a balance between three actors: both (or more) belligerents and the
neutral actor. In this balance, neutral States accept to a certain degree the authority of
belligerents – who are pursuing their respective military strategic goals against each
other – over their flagged vessels through means of, for instance, boarding rights, cap-
ture, attack or limitations to navigational rights. This balance has crystallized in cus-
tomary rules on, for instance, blockade and the belligerent right of visit and search.
Also, rules exist on the prohibition or exceptional use of neutral waters by belligerents
during conflict, which are anchored in the law of maritime neutrality. Similar to the
idea that the concept of belligerent rights does not exist in NIAC, the legal concept
of neutrality neither exists in NIAC. Rather, a NIAC intervention on the side of
15. See MD Fink, ‘Naval blockade and the humanitarian crisis in Yemen’ (2017) 64(2)
Netherlands International Law Review 291–307.

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non-state forces is prohibited.16 In other words, the way the law of naval warfare is
structured as a balance between belligerents and neutrals does not sit well with a situa-
tion of NIAC and can therefore not be merged easily in law that applies in both.
Applying rules of naval warfare in a NIAC would require rebalancing rights and obli-
gations between the State in conflict, its non-state opponent and other States.
Historically, the legal door that allows the law of naval warfare to be applied in the
circumstances of a civil war within a State – and as such with factual circumstances that
might overlap with a situation of NIAC in its full suite – is through recognition of
belligerency, a legal concept that may or may not be alive today.17 The effects of recog-
nizing belligerency for a non-state group by the State involved has the effect of acquiring
belligerent rights of this State at sea against other States. Still, however, recognition of
belligerency creates many questions. For instance, must other States accept the change in
legal situation and does, as a consequence, recognition also mean that the non-state
opponent can now also acquire ships that can be considered as warships with which bel-
ligerent rights can be conducted at sea? Clapham views in this context that it is unlikely
that States will accept that non-state actors will assert legal right of shipping or the block-
ing of ports and, therefore, ‘there seems little room for extending the Belligerent Rights
associated with Blockade to non-international armed conflicts.’18 In any case, notwith-
standing possible creation of new issues, accepting belligerent rights over foreign
flagged vessels between the State in a NIAC and other States through this concept
would be the easy way out of the discussion.
A final example of disconnects in legal construct between IAC and NIAC in relation
to the law of naval warfare is noted by McLaughlin, who brings up an interesting point
regarding belligerent rights of warships and other state-vessels in NIAC. He notes that
while belligerent rights including the right to engage in hostilities are accorded, or rather
limited, to warships only in an IAC, the use of force against non-state actors is not lim-
ited to warships only, but would also include other State vessels.19 Here, it would seem
that the possibilities of a State in terms of means to use against the non-state actor
under NIAC are in fact broader than in an IAC.
2.4 Practice
To chart the challenges somewhat more, we must now turn to practice. On practice,
firstly, it must be noted that it is a fact that naval assets are frequently deployed in con-
flicts that are considered NIAC. Recent examples are the fight against ISIS in Iraq and
Syria (operation Inherent Resolve), against Al-Qaida and the Taliban in Afghanistan
(operation Enduring Freedom) and against Syrian opposition forces in Syria (e.g.,
Russian warships operating from the Caspian Sea conducting strikes on land targets
in Syria).20 Conducting naval operations in conflicts that are characterized as non-
international does, however, not mean that the law of naval warfare is applied in
16. F Luca and N Verlinden, ‘Neutrality During Armed Conflicts: A Coherent Approach to
Third-State Support for Warring Parties’ (2018) 17 Chinese Journal of International Law 15–43.
17. YM Lootsteen, ‘The concept of belligerency in international law’ (2000) 16 Military Law
Review 109–41.
18. A Clapham, ‘Booty, Bounty, Blockade, and Prize: Time to Reevaluate the Law’ (2021) 97
International Law Studies 1200–68, 1242.
19. McLaughlin, ‘Does the law of naval warfare apply in NIACs at sea?’ (fn 3) 331.
20. See <https://www.bbc.com/news/av/world-middle-east-34462539> (accessed 30 March
2023).

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these conflicts. It merely means that naval assets are used in conflicts which are gen-
erally recognized as NIAC situations. What law applies to these naval forces is a dif-
ferent question that will depend on whether a NIAC at sea would come into existence
(which is dealt with in section 3 below). In any case, there is no doubt that naval forces
can be and are involved in conflicts that are considered NIAC.21
Second, the naval dimension of military operations has also had to deal with cir-
cumstances in which it hasn’t been clear whether the conflict could be characterized
as international, non-international or a mix of both. The Gaza and Lebanon conflicts
may serve as examples.
During the Lebanon War of 2006, Israel imposed a blockade against the territory of
Lebanon. The blockade commenced on 13 July and was lifted on 7 September, after
the adoption of UN resolution 1701 (2006) authorizing a UN maritime embargo opera-
tion enforced by the Maritime Taskforce UNIFIL. The difficulty in this conflict was
that the conflict was directed against Hezbollah, but fought on Lebanese territory,
without the consent of Lebanon. The UN Commission of Inquiry22 on the conflict
held that the conflict was international even though the Lebanese Armed Forces
refrained from fighting and hostilities were primarily between the Israel Defence
Force and Hezbollah, for a number of reasons. The Commission supported its view
by arguing that Hezbollah is a legally recognized political party and is part of the Leba-
nese government, the territory of Lebanon was subject to direct hostilities and tem-
porarily under occupation, and the fact that they met no physical resistance from the
Lebanese Armed Forces does not make a difference.23 In his analyses of the war, Iain
Scobbie shows via opinions expressed through political statements and in the Security
Council that both Israel and Lebanon also considered the conflict as international.24 He
further notes that other States acquiesced to the blockade, but is thin on evidence on
this point.
The legality of the establishment of a blockade during Operation Cast Lead in the
Gaza conflict between Israel and Hamas prompted much discussion after the Mavi
Marmara incident in 2010, as it stumbled into conflict classification issues, with dif-
ferent outcomes to the discussion. The blockade was declared on 3 January 2009 and
has since continued to stay in force. A number of reports were drafted after the incident
that take different approaches to conflict classification and its consequences for the
blockade. The Turkish national report concludes that the conflict is non-international
and therefore the blockade illegally established.25 The UNSG Special Commission
report (Palmer Report)26 opines that the classification of the conflict is disputed and
uncertain, but considers it, based on the facts on the ground, to be international for
the purpose of the blockade.27 It also suggests that the San Remo Manual does not
expressly limit the scope of the law of blockade to IAC and that it can, under
21. See also S Haines, ‘The war at Sea: Nineteenth century law for twentieth century wars?’
(2016) International Review of the Red Cross 419–48, 441–44.
22. A/HRC/3/2 (23 November 2006), Report of the Commission of Inquiry on Lebanon pur-
suant to Human Rights Council resolution S-2/1.
23. A/HRC/3/2, paras 50–62.
24. I Scobbie, ‘Lebanon 2006’ in E Wilmhurst, International Law and the Classification of
Conflicts (Oxford University Press, 2012) 387–419.
25. Report on the Israeli attack on the humanitarian aid convoy to Gaza on 31 may 2010
(February 2011) 61–63.
26. Report of the Secretary-General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident
(July 2011, Palmer report).
27. Palmer report, para 73.

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circumstances of recognition of belligerents, also be applied in NIAC.28 The Israeli

Commission on the incident (Turkel report)29 concluded that the conflict is interna-
tional for the purposes of international law. It goes on to note that ‘Naval blockades
have, nevertheless, been imposed in non-international armed conflicts (which is not
surprising in view of the large number of internal armed conflicts relative to the num-
ber of international armed conflicts throughout history). In certain situations, States
have imposed a military or economic blockade against an enemy that is not a de
jure government.’30 With this, the report appears to try to make the situation of a
blockade in NIAC more perceptive. Lahav, discussing the Israeli prize court requests
to adjudicate three vessels (Estelle, Marianne and Zaytouna-Oliva) mentions that also
the prize courts viewed that ‘it is important to remember that the Israeli Supreme Court
has in several cases adopted the position that although the Gaza Strip is controlled by a
non-State organization, the confrontation between Israel and Gaza is a conflict of an
international nature and therefore international humanitarian law will apply to the rela-
tions between Israel and the Gaza Strip.’31
Next to the Israeli blockade operations, the naval operations as a reaction to 9/11 –
operation Active Endeavour (OAE) and Enduring Freedom (OEF) – were also to a
certain extent caught up in conflict-classification issues. As a reaction to the attack
on 9/11, OEF commenced in October 2001. Where in the beginning phases of the
war it was considered that an IAC existed between coalition forces and Al Qaida, har-
boured by the de facto Taliban-government of Afghanistan, since the convening of the
Loya Jirga and establishment of a new Afghan government in June 2002, the general
view has been that the IAC phase came to an end and the situation had evolved into a
NIAC.32 If warships at sea continued using the belligerent right of visit and search, it
would have become legally untenable from the perspective that such a right does not
exist during a NIAC. To a lesser extent an issue of conflict classification, in OAE, the
NATO naval response to 9/11, NATO grappled with the issue of non-existence of a
belligerent right of visit and search in NIAC. In April 2003, it expanded its mission
and started boarding operations but made them compliant boardings: ‘These boardings
take place with the compliance of the ships’ masters and flag states in accordance with
international law.’33 OAE started in 2001 and lasted until 2016.34
As a last example in this category, Heintschel von Heinegg mentions that the Libya
War in 2011 was both an IAC and a NIAC given the different parties to the conflicts.
A NIAC existed between the rebels and the Qaddafi-regime, while an IAC existed
between the US/NATO-coalition 35 and the Qaddafi-regime. If one follows this
view, there would possibly be grounds for participating States using belligerent rights.
In this specific case, however, no belligerent rights based on the law of naval warfare
were in fact used.36 Instead, the legal grounds for the maritime enforcement measures,
28. Palmer report, paras 23–24.

29. The Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel report).
30. Turkel report, para 39.
31. J Lahav, ‘Summary of recent cases of the courts of Israel relating to prize law and Israel’s
naval blockade of the Gaza strip’ (2020) 50 Israel Yearbook on Human Rights 373–447, 424.
32. FJ Hampson, ‘Afghanistan 2001–2010’ in Wilmhurst (fn 24) 242–79 at 255.
33. NATO Briefing on Active Endeavour, April 2004. Combating terrorism at sea, available at
<https://www.files.ethz.ch/isn/129210/5881_TerrorismAtSea.pdf> (accessed 30 March 2023).
34. After which it evolved into Operation Sea Guardian (OSG).
35. US Operation Odyssey Dawn (OOD) and NATO Operation Unified Protector (OUP).
36. Based on the authors’ own experience having participated in OUP.

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in particular with regard to the maritime embargo operations off the coast of Libya
were based on UN resolutions.37
Thirdly, there are also examples in which elements of the law of naval warfare were
actually used in practice where the conflict was considered non-international in nature.
In his paper Methods and Means of Naval Warfare in Non-International Armed Conflicts,
Heintschel von Heinegg lists six examples: The American Civil war (1860–65), Spanish
Civil War (1936–39), Algeria (1956), Sri Lanka (1983–2009), Gaza (since 2008) and
Libya (2011).38 The list is interesting, and each conflict has its own intricacies. In the
Sri Lanka case, we find a situation of non-state maritime forces acting against naval
forces of a State. During the Spanish Civil War, the Republican Spanish Navy splits
to support both the Republican and Nationalist sides.39 During the American Civil
War, the Confederates build their own navy to match Unionist seapower. In the Gaza,
Israel has no opponent with a naval arm. In the Libyan case, the Qaddafi’s opponents
also did not have a naval component, but the naval force of other states involved through
a UN resolution was significant and severely limiting on the freedom of the Libyan Navy.
The use of elements of the law of naval warfare was based on different legal rea-
soning, such as recognition of belligerency (American Civil War, a blockade against
a State’s own coast), self-defence40 (Algeria, the use of the belligerent right of visit
and search by the French Navy on third State vessels on the high seas41), the com-
plexity and unclearness regarding the nature of the conflict (Gaza, blockade) or the
existence of a mixture of natures of conflict (Libya, in which, as mentioned, no bel-
ligerent rights were used). In the Sri Lanka case, naval engagement between state
forces and non-state maritime forces occurred. The question, however, is not whether
there were hostilities between the Sri Lankan Navy and the Sea Tigers, but whether
or not belligerent rights against other States were used. If this is not the case, this
example belongs in the first category of naval forces used in NIAC, with the special
feature that the non-state actors also used vessels.42 Among others,43 Heintschel von
37. UN Res 1971 and 1973. See elaborately in this MD Fink, ‘UN mandated arms embargo
operations in Operation Unified Protector’ (2011) 50(1–2) Revue de Droit Militaire et de
Droit de la Guerre 237–60.
38. Heintschel von Heinegg ‘Methods and Means of Naval Warfare in Non-International
Armed Conflicts’ (fn 3) 214–17.
39. WC Frank, ‘Naval Operations in the Spanish Civil War, 1936–1939’ (1984) 37(1) Naval
War College Review 1–32.
40. In relation to the practice of the French-Algerian War, Heintschel von Heinegg opines that a
right of visit in a NIAC might exist when the parameters of the right of visit are adjusted with the
following conditions: (1) it must be vital to the security interests of the State; (2) there are reasonable
grounds for believing that the foreign vessels are engaged in activities jeopardizing those security
interests (e.g., by supplying the non-State party with arms); and (3) the measures are undertaken
in close proximity to the conflict area. On the basis of such a right, however, he notes that ‘Rather,
the legal basis is found in the right of self-defense or in the customary right of self-preservation in
order to protect the territorial and political integrity of the State. This right is equally exercisable
in an international or non-international armed conflict.’ Heintschel von Heinegg (2012) 226–27.
41. See also R McLaughlin, Recognition of Belligerency and the Law of Armed Conflict
(Oxford University Press, 2020) 232–35.
42. See on the operations of the Sea Tigers, M Dunigan, D Hoffman, P Chalk, B Nichiporuk
and P Deluca, ‘Adversary Capabilities in Maritime Irregular warfare’ (Rand) 69–86. Guilfoyle
concludes that the powers used by the Sri Lankan naval forces were not based on the law of
naval warfare.
43. See also M Frostad, `Naval blockade’ (2018) 9 Arctic Review on Law and Politics
195–225, 196.

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Heinegg opines that the use of the word ‘blockade’ for the Sri Lankan naval opera-
tions against the Tamil is misleading as the Sri Lankan Navy did not assert the rights
to interfere with third State vessels.44
Regarding references to practice in general, discussion seems to have diverging state-
ments on the use of blockades in NIAC. This is no surprise in the context of the com-
plexities arising out of the question of conflict classification, but it does blur the
discussion on whether there is in fact useful precedent. While, for instance, Guilfoyle
notes that with the possible exception of Lebanon, all recognized blockades in the twen-
tieth century were all IAC, Shamir-Borer notes that apart from historical cases ‘In more
recent years, there have been additional instances of States imposing naval blockades in
armed conflicts against non-State actors, which were (and are) prima facie of a non-
international character’,45 referring to the Saudi actions vis-à-vis Yemen; Georgia
against Abkhazian separatists, Sri Lanka against Tamil separatist-controlled regions
and Indonesia vis-à-vis East Timor in 1975. It is therefore important to make the distinc-
tion between the existence of naval operations in NIAC, the question of conflict classi-
fication and whether the actions of naval forces were actually based on belligerent
rights.46 That would make it clear that there is a difference between using naval forces
in NIAC and using the law of naval warfare in NIAC.
3 THE EXISTENCE OF A NIAC AT SEA
For IHL to apply, a situation of armed conflict must exist. One other question that needs
attention in view of the discussion on the applicability of the law of naval warfare in
NIAC, is the question of how a NIAC at sea comes into existence. As mentioned, prac-
tice exists on the involvement of naval forces against non-state actors in conflicts that are
considered non-international in character. But when is a situation at sea considered a
NIAC or, in other words, when would actions of naval forces at sea fall under the
legal regime of a NIAC? On this issue, two points can be touched upon. First is the
threshold for the existence of NIAC. Second is the applicable law in NIAC and geogra-
phical scope at sea.
3.1 Thresholds of NIAC at sea

For the existence of a NIAC, the substantive threshold must be met. There is no reason
why the threshold for operations at sea should be any different than the one applied in
the land domain. Accordingly, it should meet the criteria of a minimum of intensity of
hostilities and a minimum level of organization of the parties, of which at least one is
44. Heintschel von Heinegg ‘Methods and Means of Naval Warfare in Non-International
Armed Conflicts’ (fn 3) 215–16.
45. Shamir-Borer (fn 3) 365.
46. See e.g. Fink and Drew on the Yemen conflict, arguing that no blockade based on the law
of blockade was established. P Drew, ‘Blockade? A Legal Assessment of the Maritime Interdic-
tion of Yemen’s Ports’ (2018) 18(18) ANU College of Law Research Paper; Fink (fn 15). See P
Leach on the South-Ossetia conflict who argues that the conflict was international in nature: P
Leach, ‘South Ossetia (2008)’ in Wilmhurst (fn 24) 317–55. Guilfoyle contends that references
to a governmental blockade against the Sea Tigers is ‘strictly a misnomer’ and that the powers
used by the Sri Lankan navy were based on law enforcement powers. Guilfoyle (fn 4) 193.

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not a State.47 Arguably, in the maritime dimension the level of intensity might be
reached earlier as a State often only has military forces at sea as opposed to a maritime
police force.48 On the other hand, warships, although military in nature, are also often
used in a constabulary manner. In that sense, it is not the mere fact that a warship is
used, but how a warship is used in a particular situation that is relevant to the issue of
determining whether the threshold is met. In relation to this threshold and the partici-
pation of naval forces at sea in a NIAC three different situations can be distinguished.
The first situation is a purely maritime encounter at sea between a State and a non-
state actor. Factual circumstances should then exist where protracted clashes at sea
would occur between governmental naval forces and maritime vessels operated by
an organized armed group, organized in such a manner and capacity to sustain military
operations at sea. One example is offered in the case of Sri Lanka, where the Sea
Tigers, the Tamil Tigers’ maritime wing, attacked Sri Lankan warships and naval
bases. Another example might be the maritime activities by Hamas in the Gaza
strip, who, according to one newspaper, are also trying to build up a maritime
force.49 Apart from the question whether the threshold in both cases is actually met,
these cases show that it is not an impossibility to have governmental naval forces
clash with non-governmental organized armed groups at sea. It is not beyond any
form of realism to think that members of an OAG might operate or be on ships.
The second situation is linking maritime encounters at sea to activities of an OAG
on land in a conflict that is considered a NIAC. If a NIAC occurs on land between
members of an OAG and a State, those members encountered at sea, for instance as
passengers on a vessel or as crew operating a vessel, could arguably be considered
as opponents of the State. Here, the relationship between the adversaries on land in
an ongoing NIAC is transported to a situation at sea. This situation could be the
case of Enduring Freedom since the phase in which a NIAC was ongoing in Afghani-
stan.50 Apart from the strike and supporting role, during operation Enduring Freedom
US naval forces took up the role of conducting maritime interception operations
(MIO), or in this case, so called leadership interception operations (LIO). On this
role Gregory Bereiter states: ‘CENTCOM and NAVCENT leaders strongly suspected
that bin Laden and his top aides would flee from Afghanistan into Pakistan, and from
there to nearby countries using small vessels such as dhows. For this reason, maritime
interception operations in late 2001 and early 2002 were heavily focused on leadership
interdiction … […] … these actions involved querying, stopping, visiting, boarding,
and searching vessels suspected of moving terrorists, particularly terrorist leaders.’51
In July 2002, LIO were expanded to include terrorists and their resources, and renamed
47. ICRC opinion paper, available at <https://www.icrc.org/en/doc/assets/files/other/opinion-

paper-armed-conflict.pdf> (accessed 30 March 2023).
48. See on this issue also W Heintschel von Heinegg, ‘The difficulties of conflict classification
at sea: Distinguishing incidents at sea from hostilities’ (2016) 98(2) International Review of the
Red Cross 449–64.
49. J Gross, ‘Hamas looking undersea, not just underground, for attack routes’ The Times of
Israel (1 April 2017), available at <https://www.timesofisrael.com/hamas-looking-undersea-not-
just-underground-for-attack-routes/> (accessed 30 March 2023).
50. See on these phases A Bellal, G Giacca and S Casey-Maslen, ‘International law and armed
non-state actors in Afghanistan’ (2011) 93(881) International Review of the Red Cross.
51. G Bereiter, ‘The U.S. Navy in Operation Enduring Freedom, 2001–2002’, Naval History &
Heritage Command, available at <https://www.history.navy.mil/content/dam/nhhc/research/
library/online-reading-room/war-and-conflict/us-navy-operation-enduring-freedom/Chrono-OEF%
20Final-PDFversion.pdf> (accessed 30 March 2023).

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expanded MIO (EMIO).52 A complicating factor is the issue of exclusive foreign flag-
state jurisdiction over its vessel. Although in this situation the threshold is met by linking
the situation on land to sea, exclusive flag-state jurisdiction over a vessel arguably still
would put up an extra hurdle with regard to the legal grounds for boarding a foreign
flagged vessel by a boarding team of another State’s warship. Where the belligerent
right of visit and search exists in IAC, it does not in NIAC.53 Another challenge with
this second situation is that if a person at sea who is considered to be part of an
OAG in a conflict is encountered somewhere at sea that is not near the theatre of conflict,
it basically globalizes the conflict. On the other hand, one should question what kind of
possible negative effects, such as collateral damage in the context of the proportionality
rule or hostilities within areas with a high density of civilians, exist in relation to the
protective gains a persons would obtain by applying NIAC law also out at sea.
A third situation is accepting that the State has brought naval assets into a conflict to
deal with the conflict on land from the sea and where the conflict on land is considered a
NIAC. Much in the same way as when IAC fighting occurs on land, naval forces would
also be considered part of that IAC although they might be nowhere near the actual fight-
ing.54 Differing from the second situation which is still a sea-to-persons-at-sea engage-
ment, naval assets in this third situation engage targets on land from the sea. Naval
assets can, for instance, target from many distant miles off the coast objects of the
opponents on land. Examples may be when warships in the Mediterranean Sea engage
targets in Iraq, supporting Iraq and the coalition in its fight against ISIS. Although far
from the operational theatre, these warships could consider themselves to be in a NIAC
as they engage in a NIAC situation on land. Following Gill’s view that Russia sided
with the Syrian Government against several organized armed groups, including ISIS,55
the Russian missile attack on target in Syria in 2015 from warships in the Caspian Sea
was governed by NIAC law.56
3.2 Applicable law and geographical scope

If one accepts that in either of these three situations a NIAC at sea can exist, one also
accepts the progressive development that an extension of NIAC law can exist extrater-
ritorially.57 In terms of applicable law a difference is made between the threshold for
the application of Common Article 3 GC (CA3) and the Additional Protocol II (APII).
Although the 2017 updated commentary to the Second Geneva Convention does not
explicitly discuss applying CA3 to sea in a NIAC, it does mention that CA3 applies
52. RJ Schneller, Anchors of Resolve. A History of U.S. Naval Forces (Naval Historical
Center, 2007) 101.
53. But see also MD Fink, ‘The right of visit of foreign flagged vessels on the high seas in non-
international armed conflict’ in J Schildknecht, R Dickey, MD Fink and L Ferris (eds), Opera-
tional Law in International Straits and Current Maritime Security Challenges (Springer, 2018)
245–54.
54. See also L Arimatsu, ‘Territory, boundaries and the law of armed conflict’ (2010) 12 Year-
book of International Humanitarian Law 157–92, 181–82.
55. TD Gill, ‘Classifying the Conflict in Syria’ (2016) 92 International Law Studies 353–80, 375.
56. See <https://www.bbc.com/news/world-middle-east-34465425> (accessed 30 March
2023).
57. M Schmitt, ‘Charting the Legal Geography of Non-International Armed Conflict’ (2014)
90 International Law Studies; Gill (fn 55).

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also outside the territory of a State. The Commentary concludes that ‘… while the text
and drafting history are somewhat ambiguous, the object and purpose of Common
Article 3 suggests that it applies in non-international armed conflicts that cross
borders.’58 What one can take from this regarding geographical scope at sea is that
a NIAC can exist outside the territory of a State, which extending to the maritime
dimension would mean that a NIAC can exist at sea. In this context ‘sea’ is meant
to describe the maritime areas beyond the territorial or archipelagic waters of a
State. Arguably, therefore, if a NIAC exists at sea, CA3 applies. Maurer states in
that context also that: ‘It is important to note that, while the history of naval warfare
mostly deals with armed conflicts waged by States against States, non-international
armed conflicts can also have a naval component. In such event, common Article 3
applies.’59 In the context of non-international armed conflict at sea one could ask
oneself whether the IAC viewpoint that hostile actions by naval forces can be con-
ducted everywhere on or over the high seas might also be applicable in NIAC, or
whether the fact that the conflict is non-international in nature compels some sort of
limitation of the theatre of operations. In other words, is there, or should there be
some sort of proportionality or reasonableness test with regard to where on the oceans
naval forces can consider themselves still to be under NIAC rules? One interesting case
to note here is the capture of Al Qaida member Abu Anas Al-Libi in 2013 in Libya who
was taken on board USS San Antonio for detention. The question here is first whether
the US was at that stage engaged in a NIAC with Al Qaida members and secondly
whether there are geographic limitations considering that Al-Libi was captured in
Libya. In one analysis of the case, the authors themselves are divided on the first ques-
tion but agree that CA3 would apply to the capture if one would accept that there is a
NIAC between the US and Al Qaida members.60
With regard to the applicability of APII the threshold for application requires, next to
the intensity and organization, the exercising of control over a part of territory.61 First,
one could conclude that it does not apply at sea beyond the territorial sea as it only
applies within the territory of a State and is subject to the requirements set forth in
Article 1(1), which include situations where there is control over territory which
enables the OAG ‘to carry out sustained and concerted military operations’.62 Argu-
ably, this limits the application of APII to the territorial sea, but not beyond.
4 THE LAW OF BLOCKADE IN NIAC
Sections 2 and 3 above have charted a number of challenges in applying the law of
naval warfare in NIAC, touched upon practice of naval forces in NIAC and discussed
how a NIAC at sea could come into existence, as a prerequisite for the application of
IHL. As suggested above, in discussing the application of the law of naval warfare it
would probably be more opportune to concentrate on specific subjects rather than
58. See e.g. new commentary on CA 3 in GC II, para 492.

59. Maurer (fn 6) 638.
60. G Mordarai, D O’Connell, T Kelly and J Farrant, ‘The seizure of Abu Anas Al-Libi: An
international law assessment’ (2013)(89) International Law Studies 817–38 at 824–28.
61. Article 1 APII. See also M Bradley, ‘Classifying Non-International Armed Conflicts: The
“Territorial Control” Requirement Under Additional Protocol II in an Era of Complex Conflicts’
(2020) 11 Journal of International Humanitarian Legal Studies 349–84.
62. Article 1 APII.

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focusing on the sub-regime as a whole. This last section will therefore briefly touch
upon the issue of blockades as a particular subject of the law of naval warfare in
the context of NIAC.
Heintschel von Heinegg holds that ‘it is a correct statement of the contemporary law
that, absent recognition of belligerency, that the parties to a non-international armed
conflict are not entitled to establish and enforce a naval blockade against foreign
flagged vessels’.63 From a military perspective and based on current practice, the
operational method of blockading from the sea appears to be a useful military tool
against non-state actors. The issue is, therefore, not that the use of the method of block-
ade against non-state actors is debated from a military-operational perspective, but
rather what the legal consequences in such circumstances are, in particular for neutral
States and shipping. Accepting the use of the method of blockade against non-state
actors, however, introduces already a first stepping away from the traditional view
that a blockade is established by a State against another State. In this regard,
Shamir-Borer notes, with regard to the Marianne case, a vessel flying a Swedish
flag that breached the Gaza blockade in 2015, that the Israeli national Maritime
Court in Haifa dealing with the Prize case of the vessel affirmed in more a broader
question it posed itself that a blockade could also exist during NIAC. 64 Also
McLaughlin has noted that: ‘I think it uncontentious, for example, that a State may
impose a blockade … […] … against territory substantially controlled by a terrorist
group which is also an OAG engaged in an armed conﬂict with that State …’.65
Several commentators addressed the applicability of the law of blockade in NIAC,
which mostly remains limited to referring to historical precedent.66 Apart from the tra-
ditional view that the law of blockade simply does not apply during NIAC, three other
views can be noted regarding the possible application of the law of blockade in NIAC.
The first is the view that the use of the method of blockade in a NIAC turns the regime
of the conflict into an IAC. The second is the view that the conflict stays a NIAC, but
the belligerent rights based on the law of blockade apply during this NIAC only for the
sake of the blockade. A third is retooling or reinterpreting of the law of blockade in
NIAC situations.
4.1 Method of blockade turns conflict into IAC

Dinstein offers one solution regarding applicable law regarding a blockade used in
NIAC. He proposes that if a State establishes a blockade against a coast or port, be
it one of its own or from another State, against a non-state actor, it equals tacit recog-
nition of belligerency: ‘… seeing that a blockade as a method of warfare is predicated
on IAC ius in bello – rather than LONIAC67 – its imposition on insurgents controlled
63. Heintschel von Heinegg (fn 3) 211–36.

64. Shamir-Borer (fn 3) 363. See elaborately on this case Lahav (fn 31) 418–41; Shamir-Borer
(fn 3) 363.
65. R McLaughlin, ‘Terrorism as a Central Theme in the Evolution of Maritime Operations
Law Since 11 September 2011’ (2011) 14 Yearbook of International Humanitarian Law
391–409, 403.
66. See e.g. Guilfoyle (fn 4); Kraska (fn 3); J Farrant, ‘The Gaza Blockade incident and the
modern law of blockade’ (2013) 66(3) Naval War College Review 81–98; R Buchan, ’Determin-
ing the legality of Israel’s interception of the peace flotilla on May 31 2010’ (2012) 61(1) Inter-
national and Comparative Law Quarterly 264–73.
67. LONIAC: Law of non-international armed conflict.

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ports or coastlines automatically implies recognition of belligerency’.68 He argues that

by using a legal instrument only available in IAC, belligerent status of the non-state
opponent is recognized. The situation would according to him then be governed by
the law of blockade as is during an IAC. If we take this view in relation to the practice
of the Lebanon War and the view of the Commission of Inquiry, it seems there is a
view that establishing a blockade, next to other factors, prompted the conflict to
become international.69 The question, however, remains if this is also the case when
the only factor is the establishment of a naval blockade against a non-state on foreign
territory. Some authors opine that this is indeed the case, based on the strict point of
view that blockades can only be established in IAC.70 As such, if one establishes a
blockade the conflict should, as a consequence, be classified as international. Even
though the blockading State may tacitly recognize that it has entered into an IAC,
thereby giving the opponent non-state actor belligerent rights, the question remains
whether other States also accept the coming into existence of an IAC. Whereas explicit
recognition of belligerency triggers both an IAC relationship between first, the belli-
gerent State and the non-state actor, and second between the belligerent State and neu-
tral States,71 the question is whether this is also true for tacit recognition and through
the (sole) act of blockading. Apart from the objection by Turkey made clear through its
report on the Flotilla incident, with regard to impact on vessels of third States this view
is currently, however, without clear evidence that it is supported or objected to by
States. Setting aside the issue of implied recognition of belligerency, the view could
be supported by Article 3(c) of General Assembly resolution 3314, which states
that: (c) the blockade of the ports or coasts of a State by the armed forces of another
State regardless of a declaration of war shall qualify as an act of aggression.72
Although the ultimate aim of the blockade is to affect the non-state actor, the blockade
is still physically established against another State and can therefore be regarded as
constituting an armed conflict between two States to which the IAC regime applies.
Because Common Article 2 of the Geneva Conventions mentions that it does not mat-
ter whether the situation is recognized or not by one or the other State, it does not mat-
ter that the blockaded State remains passive, or in other ways by omission or
commission consents to the situation.
4.2 Law of blockade applies in NIAC blockade

The second view is that the law of blockade as it applies during an IAC applies when a
blockade is established during a NIAC, but the conflict as a whole does not change
into an IAC. In this view, differentiation can be made in two situations. The first is
the situation of turning the conflict between the coastal State and the blockading
State into an IAC, while a NIAC continues to exist between the blockading State
and the non-state actor. Instead of focusing on the non-state actor, the geographical
factor of blockading a coast of another State continues to be the main factor. Although
68. Y Dinstein, Non-International Armed Conflicts in International Law (2nd edn, Cambridge
University Press, 2021) 147.
69. A/HRC/3/2, paras 50–62.
70. I. Scobbie, ‘Gaza’ in Wilmhurst (fn 24) 280–315 at 305. See also Drew (fn 46) 112.
71. S Radin, ‘The Current Relevance of the Recognition of Belligerency’ in M Matthee et al
(eds), Armed Conflict and International Law: In Search of the Human Face (TMC Asser Press,
2013) 115–52, 122–23.
72. A/RES/3314(XXIX), 14 December 1974.

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this means that the blockading State is in armed conflict against the coastal State, this
situation steers away from granting belligerency to non-state actors. For Israel, in the
case of Lebanon the decision to establish a blockade turned out well as the Lebanese
Armed Forces refrained from hostile actions. This, however, might not be considered
as the standard reaction of a State that is being blockaded by another State.
The second possibility is that IAC law of blockade is used in a NIAC situation
between the blockading State and the non-state actor, but only for the purpose of
imposing the blockade. In other words, and differing to the first view, the non-state
actors do not obtain belligerent status (there is no tacit recognition) and the conflict
is still governed by NIAC law, while the blockading State does obtain belligerent
rights against foreign vessels. Somewhat vaguely perhaps, the Turkel and Palmer
reports hint at this view in the sense that they mention that for the purpose of the block-
ade it is accepted that there is an IAC ongoing, limiting themselves to deal with the
blockades without discussing the conflict as a whole. Again here, the missing piece
of the puzzle is whether there is a view of third States accepting that belligerent rights
are used. The complexities of conflict classification have blurred opinions in the Gaza
blockade discussion, but probably also kept States safe from having to take a position.
In the summary of cases by Lahav of the three prize cases of vessels in relation to the
Gaza blockade brought before the Haifa District Court sitting as Maritime Court under
the Naval Prize Act of 1864, it may be interesting to note that Lahav does not mention
any involvement of States73 that have made official objections of some sort towards
the capture of these vessels or the condemnation by a prize court.74
4.3 Retooling the law of blockade for NIAC purposes

A third option is ‘retooling’ the law of blockade for the purpose of a NIAC. This
would create new law on blockades specifically tailored to NIAC, or reinterprets the
law in the context of NIAC situations. According to the description of the San Remo
Manual, a blockade consists of blocking the approach to the enemy coast, or a part of
it, for the purpose of preventing ingress and egress of vessels or aircraft of all States.75
A situation of NIAC poses a challenge first to the description of blockades in relation
to the element of ‘enemy coast’. Second, it poses the obvious challenge in terms of
enforcement against other shipping, which touches on the requirements of impartiality
and effectiveness.
4.3.1 Enemy coast

A blockade is established against an enemy coast. Based on Article 1 of the London
Declaration (that never come into force), Verzijl noted that if it is not the enemy coast
that is blockaded, the blockade becomes unlawful.76 The point to note is that the
73. Estelle Finnish flagged, Marianne Swedish flagged, and Zaytouna-Oliva Dutch flagged.
Two more vessels, the Kaarstein (Norway) and the Freedom (Swedish) Freedom were brought
before the court. See J Lahav, ‘Judicial Summary’ (2022) Israel Yearbook on Human Rights
419–36.
74. Lahav (fn 31).
75. San Remo Manual, p 176.
76. JHW Verzijl, Het prijsrecht tegenover neutralen in den Wereldoorlog van 1914 en volgen-
den jaren (1917) 186–223.

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original idea of a blockade is that it is established against territory and not against per-
sons. The enemy coast is either the coast of an enemy State, or the coast of a State that
is occupied or controlled by enemy forces.77 Heintschel von Heinegg mentions that a
blockade can be established against coastal areas ‘belonging to, occupied by, or under
the control of an enemy nation’.78 In other words, it looks at territory de facto under
the control of the enemy.
In the context of NIAC, two interpretations of enemy coast could be made. First is
that territory held by a non-state organized armed group could be viewed as such. This
is the situation where a blockade is established against the non-state actor off the coast
of another State where the blockaded port or coastal area is under control of the non-
state actor. This is not the same as the situation where the non-state actor does not hold
territory under its control. The effects of the blockade in this case cannot be directed
only to affect the territory under control of a non-state actor and therefore directed
against territory of another State. A State may announce the blockade is directed
against a non-state actor, but it will inevitably be established against territory not
under control of a non-state actor. In this scenario, there is no enemy coast against
which a blockade can be established. If a blockade is established, the situation
would become an IAC.
Apart from the interpretation that an enemy coast could be seen as territory under
control of a non-state actor, a second interpretation of enemy coast is in the context of
the possibility that the blockade is established against the State’s own coast or ports. In
this case, the blockade does not affect the territory of another State. Within its own
waters a State can make use of its sovereign powers to close down its own waters
for navigation, entry and exit. The legal bases, however, could alternatively be derived
from Article 25(3) UNCLOS. Article 25(3) UNCLOS states that:
3. The coastal State may, without discrimination in form or in fact among foreign ships, sus-
pend temporarily in specified areas of its territorial sea the innocent passage of foreign ships
if such suspension is essential for the protection of its security, including weapons exercises.
Such suspension shall take effect only after having been duly published.
This would allow the coastal State to suspend the right of innocent passage where the
State is involved in NIAC and where it sees the need to close its territorial sea for traf-
fic. Although the navigational effect is likely to be achieved through the legal possi-
bilities within UNCLOS, the essential difference is the non-existence of belligerent
rights. Enforcement of the closure of the territorial sea should then be seen through
the lens of law enforcement activities and not through the lens of maritime targeting
based on the law of naval warfare. The question would be whether lack of belligerent
rights to enforce a closure can be sufficiently filled with law enforcement powers.
Apart from a possible lack of forceful enforcement measures, another practical issue
is that the distance from the coast is determined mainly by military considerations to
stay out of the range of, for instance, coastal defenses or other threats and the number
of vessels or aircraft available to uphold effectiveness. This would perhaps oblige
States to enforce a NIAC blockade well beyond its territorial sea. The Gaza blockade,
for instance, extended beyond the 12 nautical miles and the attack on the Israeli war-
ship INS Hanit from the Lebanese shore in July 2006 by Hezbollah underlines that the
77. Article 1 of the London Declaration 1909 mentions that: ‘A blockade must not extend
beyond the ports and coasts belonging to or occupied by the enemy’.
78. W Heintschel von Heinegg, ‘The current state of the law of naval warfare: A fresh look at
the San Remo manual’ (2006) 36 Israel Yearbook on Human Rights 269–96, 276.

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coastal threat is real, even when the opponent is a non-state actor.79 If belligerent rights
are not accepted in blockading one’s own coast enforced outside the territorial sea, the
UNCLOS option becomes unpractical from a military perspective as it does not give
much authority to close waters beyond the territorial sea.
One remote option would, arguably, be to establish a maritime exclusion zone, as
the San Remo Manual mentions ‘as an exceptional measure’, and established within
the boundaries the requirements of necessity and proportionality, also providing neces-
sary safe passage for maritime traffic.80 Apart from its ongoing unclearness as regards
its legal parameters and whether it could be set up in such a way that it effectively
closes a maritime space with similar effects of a blockade, there is also no clear answer
(nor even a start of a discussion, for that matter) whether such zones can actually be
established during NIAC.
4.3.2 Impartiality
Next to reinterpreting the term ‘enemy coast’, one could also look at another interpre-
tation of the requirements of establishing a blockade. One of the conditions for having
established a blockade is that it has to be applied indiscriminately against all vessels.81
This requirement is the most difficult to reconcile with a NIAC situation.82 First,
because at this stage there is no acceptance that belligerent rights, outside a situation
of a recognition of belligerency, exist during a NIAC. Second, from a military perspec-
tive impartiality is, apart from a legal requirement, essential to the military end of a
blockade, namely the ability to stop and take measures against everything that sails
in or out. Changing the requirement therefore is not an operational agreeable option
as stopping all vessels is the essential operational nature of a blockade. A blockade
in a NIAC will most likely not be solely tactically focused on vessels that may be
used by or carry non-state actors, but also aims at stopping outside support to the
non-state actor. It simply renders the method of blockade useless from a military per-
spective because it cannot stop ingress of neutral traffic and thus possible support to
the non-state actor.
5 CONCLUSIONS
This article aimed at providing some food for thought in the thinking on the applica-
tion of the law of naval warfare in NIAC. It is shown that the discussion on merging
the law of naval warfare as a whole into NIAC stumbles at different hurdles. And the
challenge to interpreting practice seems at first instance to be the debates on conflict
classification and having to rely on concepts that aren’t used often, such as the recog-
nition of belligerency. The approach that should be taken is to look at specific elements
of the law of naval warfare and see whether there might be room for application.
The issue of application and possible progression of the law of naval warfare into
NIAC exists and is underlined by recent practice, in particular with regard to
79. See <https://www.timesofisrael.com/new-hezbollah-footage-purports-to-show-2006-

strike-on-israeli-navy-ship/> (accessed 30 March 2023).
80. See ss 105–108 SRM.
81. See more elaborately on these requirement MD Fink, ‘Naval blockade and the Russia-
Ukraine conflict’ (2022) Netherlands International Law Review.
82. The other requirements are notification and effectiveness.

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blockades. It is, however, without any clear direction for development. Apart from a
general feeling that blockades as an operational method of naval warfare may indeed
serve State goals during NIAC, this has not moved academic discussion or, more
importantly, States into redefining the parameters of belligerent rights in the context
of NIAC. The discussion on the law of blockades in NIAC provides a showcase for
its complexity on the question of what effect imposing a blockade could have on
the nature of the conflict, such as turning it into an IAC as Dinstein proposes. Although
some reinterpretation of terms of the law of blockade would probably serve to apply
the law somewhat better, retooling the basic requirements of establishing a blockade
does not make much sense as it becomes an operationally useless instrument. Adjust-
ing the law in such a manner appears at first sight, therefore, not a fruitful way
forward.
Tellingly also in the context of the challenge discussed in this article, although the
new edition (March 2022) of the US Commander’s Handbook on the law of naval
operations notes some views on progressive interpretation,83 it has nothing notable
that signals any direction regarding NIAC application of the law of naval warfare.
Nevertheless, the issue of the law of naval warfare and its possible application in
NIAC is one of the issues that needs looking into in one way or another by the
group that busies itself with the revision of the San Remo Manual.84 In that respect,
I echo what Dannenbaum mentions: ‘In light of these intervening developments, the
revised Manual on International Law Applicable to Armed Conflicts at Sea cannot
credibly replicate the first edition’s avoidance of the NIAC question.’85 But whether
this actually means that changes are indeed proposed – and in what manner – to rele-
vant sections of the revised Manual, remains yet to be seen.
83. For instance, in relation to remotely crewing and the definition of warships. See para 2.2.1.
84. See <https://law.adelaide.edu.au/news/list/2022/05/30/prof-stephens-participates-in-san-
remo-manual-update-in-norway-workshop> (accessed 30 March 2023); D Letts, ‘International
Law and Armed Conflicts at Sea: The San Remo Manual – now is the time for a LOTE!’
(2021) Australian Naval Review 1.
85. T Dannenbaum, ‘Encirclement, Deprivation, and Humanity: Revising the San Remo Man-
ual Provisions on Blockade’ (2021) 97 International Law Studies 307–94 at 388.

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The Military Law and the Law of War Review, Vol. 61 No. 1, 2023, pp.

Challenges of applying the law of naval

The law of naval warfare is a specialized subset of rules in international humanitarian

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not to dissuade the implementation of these rules in non-international armed conflicts

2 THE REASON WHY (NOT)

2. L Doswald-Beck, San Remo Manual on International Law Applicable to Armed Conflicts

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2.1 Scope of the law of naval warfare

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This example also underlines that it is questionable whether it is useful to discuss

2.3 Legal structure

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circumstances of recognition of belligerents, also be applied in NIAC.28 The Israeli

28. Palmer report, paras 23–24.

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3 THE EXISTENCE OF A NIAC AT SEA

3.1 Thresholds of NIAC at sea

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47. ICRC opinion paper, available at <https://www.icrc.org/en/doc/assets/files/other/opinion-

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3.2 Applicable law and geographical scope

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4 THE LAW OF BLOCKADE IN NIAC

58. See e.g. new commentary on CA 3 in GC II, para 492.

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4.1 Method of blockade turns conflict into IAC

63. Heintschel von Heinegg (fn 3) 211–36.

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ports or coastlines automatically implies recognition of belligerency’.68 He argues that

4.2 Law of blockade applies in NIAC blockade

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4.3 Retooling the law of blockade for NIAC purposes

4.3.1 Enemy coast

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79. See <https://www.timesofisrael.com/new-hezbollah-footage-purports-to-show-2006-

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