Françoise Hampson University of Essex1
One important point to highlight is: when we see images on television of absolutely outra-geous things, such as the consequences of the use of barrel bombs, we do not need to sit down and deliberate whether this is a sign that the law is not clear enough or a sign that we need more law, because these are things which are a flagrant violation of the rules. This is why it is important to distinguish between flagrant violations of the rules and situations where there may be a genuine legal problem.
In relation to sieges, there have been some famous ones. I come from a place where there was a less famous one. I live in Colchester, and with reference to the last panel, I would like to point out that Colchester is an important garrison town with a garrison right in the middle of the town. During the English Civil War in 1648, Colchester ended up besieged for the following reason: Colchester was a town that strongly supported Parliament, but a group of Royalists, who wanted to raise support for the King further north, headed into Colchester hotly pursued by Parliamentarians who then tried to take Colchester by assault but failed. So, the besieged population strongly supported the besiegers, but was forced to be in the town because of the defenders of the town, i.e. the group of Royalists trapped within Colchester’s walls. This is an example of why we should not assume that all civilian populations in a besieged town are actually supporters of the defenders of the town.
We should remember that one can lay siege to military installations or areas of land, such as what happened for example in Diên Biên Phu. However, this presentation will focus on sieges that occur in relation to towns and cities. I suspect sieges to be like an elephant: you know it when you see it, but you have a problem defining it. Indeed, one issue that is not addressed in the law is: do you define siege by the intent of the besieger or by the effect the siege has? I suspect that it is defined by the effect, because it involves the control of movement of persons or goods in and out of a besieged area. But does this necessarily involve total encirclement? It seems to me that the Dragomir Milošević case on the siege of Sarajevo answers that question:
you do not have to have total encirclement if you have total control over the entry and egress of persons and goods. So, if you do have effective control over movements, even without total encirclement, it would be a siege.
1 This contribution has been written on the basis of an audio recording and has not been reviewed by the speaker.
It is also important to remember the various military purposes of sieges, starting first with international armed conflict. It may be that the besieging force needs to control the town itself, i.e. the whole place. More commonly, the besieging force may need to control something specific in the town, such as port facilities, bridges for river crossing, or even just crossroads.
Another military purpose that may underlie a siege is where the attacking forces want to ad-vance but do not want hostile forces behind them, because those hostile forces could attack them or destroy their lines of communication. In some cases, you can avoid besieging a place simply by manoeuvring and moving elsewhere. An example of this is the Blitzkrieg. In other circumstances, it may be that you have to actually contain those forces in order to proceed and achieve your objective. So, the besieging forces may be only part of the force, the rest of which is doing something else. In an international armed conflict, it is also possible for an attacking force to secure the collapse of the opposing forces, as in Stalingrad for example.
In a non-international armed conflict, we need to remember that there is something different going on. The State has had its authority challenged, assuming that it is the State that is try-ing to take control over a rebel-held town. It needs to be able to assert control throughout its territory. As such, there is a need to control to establish authority. That is for either a politi-cal reason or a mixed politipoliti-cal-military reason, but in any case, it is for an important reason.
Indeed, the need cannot be dismissed only because there is a political element. Why am I emphasising the military purpose behind the siege? In my opinion, it matters for two main reasons. First, it is going to be legally relevant to the definition of a military objective - for a definite military advantage, you need to know how you articulate the advantage. However it is also going to be relevant to the proportionality of the concrete and direct military advan-tage anticipated. It is also important for a strategic reason: if armed forces need militarily to undertake sieges, then it is up to the law of armed conflict to come up with appropriate rules, once it is capable of being operationalised. If well-meaning humanitarians argue that the ap-plicable rules mean that you cannot conduct sieges lawfully, that does not mean that sieges will not happen. Rather, it means that sieges will happen unlawfully or outside the framework of law. This is something really dangerous because if States think that they are forced to conduct a certain kind of operation outside the legal framework, there is a risk of leakage into areas where they could conduct operations legally. We should take this as a starting point:
sieges are occasionally necessary, and being necessary, it is up to the law to accommodate them. It should not be the other way round.
What differentiates sieges from other kinds of operations? First of all, I would like to distin-guish between sieges and blockades, particularly bearing in mind that we are not far from places like Ostend. Generally speaking, blockade applies to the whole or a significant part of a State’s territory. Blockade has legal implications, as it does not only constitute a factual
description of a particular type of operation. For example, for a blockade to be lawful, it must be effective: in other words, if you declare a blockade that is not effective, this constitutes an unlawful declaration of blockade. Then, some commentators, including Yoram Dinstein and Wolff Heintschel von Heinegg, argue that in a non-international armed conflict, if a State de-clares a blockade, this will act as a declaration or a recognition of belligerency and as a result, the armed conflict will be internationalised. None of those consequences are true in relation to siege: it is a factual description of what is going on without any specific legal connotation.
Having said that, if you lay siege to a coastal town, Ostend for example, in order to prevent effective movement of persons and goods, part of it is going to contain a maritime element.
Nevertheless, that does not change it into a blockade, it simply constitutes the maritime com-ponent of the attempted siege of a coastal town.
Another distinction, and this is more a contrast than a true distinction, must be made between siege and assault. It could be that the besieging party would like to take the town by assault but actually cannot do so, or it could be that the besieging party actually does not want to assault the town, because you need far more forces to take a town by assault than you will need to lay some kind of siege. It is generally admitted that the ratio is between three and five attacking forces to one defending force in order to take a town by assault, whereas in the case of a siege, the ratio is said to be one to one. In many cases, a siege may end with an assault. But they are different kinds of activities and the armed forces should be aware of this.
My last point in this section is the question of the applicability of different law of armed conflict regimes. Armed forces use different ways of controlling the movement of persons and goods. Both the besieged and the besieging forces are exercising control over movement. One question that can be raised is: in an international armed conflict, is the occupation regime applicable at all to either Party? If the territorial State is besieged by a non-territorial State, then it cannot be an occupation of its own territory. However, in that situation, is the besieg-ing Party in occupation? It all depends on what is happenbesieg-ing in the area around the town: it is unlikely that the besieging force will not be exercising control there. But by definition the besieging force is not exercising control within the town. It seems to me that where the terri-torial State is the besieged Party, the occupation regime does not apply to the attacking State, with regard to the town - because it may apply elsewhere. What if it is the other way round?
If the territorial State is the besieging Party, it is again not an occupation of its own territory.
But what about the besieged Party in control of the town? In my opinion, there should be a distinction between ‘being actually placed under the authority of the hostile army’ (which is the test for occupation) and the type of control being exercised by a besieged Party. This is why I would suggest that generally speaking, in an international armed conflict, the law of occupation will actually not be de jure applicable.
In a non-international armed conflict, it is heresy to suggest that the occupation regime could apply to either side: on the one hand, the rebels are not supposed to occupy anything because they do not have the basis for exercising authority and, on the other, the territorial State can-not be in occupation of its own territory. In this context, there is a different question that arises: where you have a siege, can you assume that, if the rebels are the besieging force, the siege is a concerted and sustained military operation as a result of which, simply by virtue of there being a siege, the situation would come within Additional Protocol II – assuming that the Protocol has been ratified. If it is the opposite and the rebels are the ones being besieged, what is the position within the town? Can we say that it amounts to a concerted and sustained military operation because the State has not been able to take the town? There is a question as to whether a siege automatically triggers the applicability of Additional Protocol II – if it has been ratified.
As a final point, the law of armed conflict does not have different rules for different types of military operations. There are simply law of armed conflict rules on all operations and in practice, they may apply in a slightly different way depending on the operation.