¹ In the remainder of this Article I do not make a distinction between international and non-international armed conflicts and the relevance of the suggested principles of regulating economic sanctions. Although there are many differences between the legal regimes of international and non-international armed conflicts, it seems that when suggesting principles for the application of International Humanitarian Law it is not useful to differentiate between these two situations. See Prosecutor v. Tadić, Case No. IT-94-1, Decision on Defense Motion for Interlocutory Appeal on Jurisdiction, para. 97-127 (Oct. 2, 1995).

² Others have dealt extensively with this question in numerous works. See generally Carter, Barry E., International Economic Sanctions: Improving the Haphazard U.S. Legal Regime (1988)Google Scholar; Hufbauer, Gary C. & Schott, Jeffrey J., Economic Sanctions in Support of Foreign Policy Goals (1983)Google Scholar; Hufbauer, Gary C. et al. , Economic Sanctions Reconsidered: History and Current Policy (2nd ed. 1990)Google Scholar; Daoudi, M.S. & Dajani, M.S., Economic Sanctions: Ideals and Experience (1983)Google Scholar; The Secretary-General, Report of the Secretary-General on the Work of the Organization, Supplement to an Agenda For Peace: Position Paper on the Occasion of the Fiftieth Anniversary of the United Nations, U.N. Doc. A/50/60-S/1995/1 (Jan. 3, 1995)Google Scholar.

³ Reisman, W. Michael, When are Economic Sanctions Effective? Selected Theorems and Corollaries, 2 ILSA J. Int'l & Compara. L. 587 (1995–1996)Google Scholar. See Gibson, Susan S., International Economic Sanctions: The Importance of Government Structures, 13 Emory Int'l L. Rev. 161 (1999)Google Scholar (discussing of the difficulty of defining economic sanctions).

⁴ Although, of course, some economic sanctions do involve direct effects, as for example the prohibition of the sale of some weapons imposed on Iran. See infra note 87.

⁵ See, e.g., Gordon, Joy, When Intent Makes all the Difference in the World: Economic Sanctions on Iraq and the Accusation of Genocide, 5 Yale H.R. & Dev. L.J. 57 (2002)Google Scholar.

⁶ S.C. Res. 661, U.N. Doc. S/RES/661 (Aug. 6, 1990).

⁷ See the U.N. Office of the Iraq Programme, Oil-for-Food, available at http://www.un.org/Depts/oip/ (last visited March 23, 2009).

⁸ See, e.g., Ali, Mohamed M. & Shah, Iqbal H., Sanctions and Child Mortality in Iraq, 355 (9218) THE LANCET 1851 (May 27, 2000)Google Scholar (claiming that child mortality rates increased because of the sanctions on Iraq).

⁹ Different categorizations appear in the scholarship, see, e.g., Gibson supra note 3. This tripartite division is the most relevant for this Article.

¹⁰ Arguably, one could also imagine a situation where one State has the right to respond to an attack using force, but prefers to use economic sanctions instead, especially when the initial act of aggression did not entail immediate danger to the existence of the attacked State.

¹¹ See Carter, Barry E., International Economic Sanctions: Improving the Haphazard of U.S. Legal Regime, 75 Cal. L. Rev. 1162 (1987)CrossRefGoogle Scholar (surveying and criticizing the U.S.'s use of economic sanctions).

¹² See Wall, Christopher, Human Rights and Economic Sanctions; The New Imperialism, 22 Fordham Int'l L. J. 577 (1998–1999)Google Scholar; Chuang, Janie A., The United states as Global Sheriff Using Unilateral Sanctions to Combat Human Trafficking, 27 Mich. J. Int'l L. 437 (2005–2006)Google Scholar.

¹³ See Shambaugh, George E., States, Firms and Power: Successful Sanctions in United States Foreign Policy (New York, 1999)Google Scholar (surveying U.S. use of economic sanctions): see also Baek, Buhm Suk, Economic Sanctions against Human Rights Violations, (Cornell Law School LL.M. papers series, paper no. 11, Apr. 14, 2008)CrossRefGoogle Scholar.

¹⁴ For an overview of the Sanctions used until 2000 see U.N. Sanctions Secretariat, Dep. of Political Affairs, Informal Background paper: A Brief Overview of Security Council Applied Sanctions (Dec. 3-5 2000), available at http://www.un.org/Docs/sc/committees/sanctions/overview.pdf

¹⁵ The basic sanctions were imposed according to S.C. Res 687, U.N. Doc. S/RES/687 (Apr. 3, 1991); they were affirmed in later decisions see, e.g., S.C. Res 1441, U.N. Doc. S/RES/1441 (Nov. 8,2002).

¹⁶ See, e.g., Bahdi, Reem, Iraq, Sanctions and Security: A Critique, 9 Duke J. Gen. L. & Pol'y 237 (2002)Google Scholar and sources cited there; Gordon supra note 5; Kozal, Peggy, Is the Continued Use of Sanctions As Implemented against Iraq a Violation of International Human Rights, 28 Denv. J. Int'l L. & Pol'y 383 (2000)Google Scholar.

¹⁷ Cosgrove, Erica, The Sanctions Dilemma and the Case of Iraq: Human Rights and Humanitarian Challenges to the Use of Multilateral Economic Sanctions, 9 Windsor Rev. of Leg. & Soc. Iss. 65 (1999)Google Scholar.

¹⁸ This does not refer to the question of the legality of the use of force in the event economic sanctions alone may suffice. While a State or the Security Council may have a legal right to respond by using force, it might be that the only legal option open to them is economic sanctions. However, there is no proof that States actually limit their actions of self defense to the use of force only in instances they determine economic sanctions would not be effective.

¹⁹ See, e.g., U.N. Charter art. 41, 42 (It is clear that the UN charter prefers the use of economic sanctions as an alternative to war).

Article 41: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. (My emphasis A.C.)

²⁰ Of course that is the case only if one accepts the extra-territorial application of international human rights. Even those who accept international human rights usually do so only in connection to an international armed conflict, or when controlling a territory of another State. See, e.g., Banković v. Belgium, 2001-XII Eur. Ct. H.R. 333. For a different opinion, supporting the application of human rights to all acts of State see Shany, Yuval & Ben-Naftali, Orna, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17 (2003–2004)Google Scholar.

²¹ Ozdag, Umit & Aydinli, Ersel, Winning a Low Intensity Conflict: Drawing Lessons from the Turkish Case, in Democracies and Small Wars 101–21 (Inbar, Efraim ed., 2003)Google Scholar.

²² See, e.g., Bashi, Sari & Mann, Kenneth, Disengaged Occupiers: The Legal Status of Gaza (Position Paper, Gisha: Legal Center for Freedom of Movement, 2007)Google Scholar, available at http://www.gisha.org/UserFiles/File/Report%20for%20the%20website.pdf [hereinafter Gisha Report]

²³ Except in the most severe examples. See text infra adjacent to note 26.

²⁴ Parts of International Humanitarian Law apply to conflicts within a State in certain cases, when the conflict is genuinely an armed conflict, and not a mere act of banditry. See generally Pictet, Jean, Commentary to the First Geneva Convention for the Amelioration of the Wounded and the Sick in Armed Forces in the Field 49–50 (1958)Google Scholar. Tadić case, supra note 1, para. 70. Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment, para. 562 (May 7, 1997).

²⁵ Note that the fact that economic sanctions are more severe does not necessarily mean that they should be regulated. The next part of this Article discusses this quandary. I do not claim that economic sanctions were not used in the past, or alternatively that military sanctions will somehow disappear. Rather that economic sanctions are used frequently and widely and as a substitute for military sanctions, or as a supplementary measure.

²⁶ Reisman, W. Michael, The Lessons of Qana, 22 Yale J. Int'l L. 381 (1997)Google Scholar.

²⁷ See NATO's role in Kosovo, available at http://www.nato.int/kosovo/history.htm.

²⁸ See The War in Numbers, Jane's Defense Weekly, Aug. 23, 2006 (reporting that during the campaign it is estimated that the Israel Air Force flew more than 15,000 combat missions, its artillery fired about 100,000 shells; the navy fired approximately 2500 more).

²⁹ The tendency of Liberal Democracies to avoid military operations which endanger the lives of their soldiers, and the difference between liberal democracies and totalitarian States in this respect was exemplified in the last stages of the Second World War. See Hastings, Max, Armageddon Germany 1944–1945 (2004)Google Scholar.

³⁰ See The Commission to Investigate the Lebanon Campaign in 2006, The Second Lebanon War, Final Rep. [unclassified version] [in Hebrew], available at http://www.vaadatwino,org.il/pdf/.pdf.

³¹ Kober, Avi, Modern Democracies in Low Intensity Conflict: Some Postmodern Aspects, in Democracies and Small Wars, supra note 21, at 3–20Google Scholar.

³² The classic conditions for declaring an internal conflict to be an armed conflict (and therefore IHL becomes applicable) are stated in Tadić and include: Prolonged time, severity of casualties, organization of the parties. See Tadić, supra note 1, para. 70. Modem conflicts become very hard to define according to these criteria—many constantly shift between armed and non-armed conflict—if these are really the only conditions.

³³ See, e.g., the on-going conflict in Congo—which constantly shifts between short term cease fires and all out armed conflicts see Gettleman, Jeffrey, In Congo a Little Fighting Brings a Lot of Fear, N.Y. Times, Nov. 3, 2008Google Scholar; the conflict in the region of Darfur in Sudan see generally International Commission of Inquiry on Darfur Report to the Secretary-General U.N. Doc. (Jan. 25, 2005) and Darfur Conflict, BBC News, available at http://news.bbc.co.uk/1/hi/world/africa/3496731.stm (last visited Mar. 19, 2009). A similar phenomenon is evident in the current conflict between Israel and Hamas in and around the Gaza strip. See, e.g., Gaza-Hamas Fact Sheet, (US Embassy in Israel, Dec. 22, 2008), available at http://www.israelpolitik.org/wpcontent/uploads/2008/12/gaza_fact_sheet.pdf; see also Gaza Truce May be Revived by Necessity, N.Y. Times, December 19, 2008, available at http://www.nytimes.com/2008/12/20/world/middleeast/20mideast.html?_r=1&scp=2&sq=Ethan%20Bronner%20December%202008%20gaza&st=cse; see also Israel and Hamas: Conflict in Gaza, N.Y. Times, Jan. 4, 2009, available at http://www.nytimes.com/interactive/2009/01/O4/world/20080104-conflict-graphic.html.

³⁴ See, e.g., Meron, Theodor, The Humanization of Humanitarian Law, 94 Am. J. Int'l L. 239 (2000)CrossRefGoogle Scholar.

³⁵ See Benvenisti, Eyal, The International Law of Occupation (2004)Google Scholar (discussing the duties of the occupying power towards civilians in occupied territories). Some of the relevant norms are The Hague Regulations and GCIV, obligating the occupying power to supply occupied territories with essentials. The Israeli Supreme Court has famously declared that Regulation 43 to the Hague Regulation requires the Occupying power to actively promote the welfare of civilians, including building of roads, hospitals, etc. See; e.g., HCJ 393/82 Ja'amait Ascan v. IDF Commander in Judea and Samaria [1982] IsrSC 37(4) 785; for criticism of this decision see Kretzmer, David, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories 68–72 (2002)Google Scholar.

³⁶ API, art. 54(1).

³⁷ GCIV, art. 24.

³⁸ Id. art. 23.

³⁹ Id:

… The obligation of a High Contracting Party to allow the free passage of the consignments indicated in the preceding paragraph is subject to the condition that this Party is satisfied that there are no serious reasons for fearing:

(a) That the consignments may be diverted from their destination;

(b) That the control may not be effective; or

(c) That a definite advantage may accrue to the military efforts or economy of the enemy through the substitution of the above-mentioned consignments for goods which would otherwise be provided or produced by the enemy or through the release of such material, services or facilities as would otherwise be required for the production of such goods…

⁴⁰ See, e.g., Henckaerts, Jean-Marie & Beck, Louise Doswald, 1 Customary International Humanitarian Law (2005)CrossRefGoogle Scholar [hereinafter ICRC Study]. Rule 55: “The Parties to the conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinction, subject to their right of control.”

⁴¹ There is, of course, a possibility that even these prohibitions are not applicable to non-international armed conflicts.

⁴² This Article treats blockades as a form of economic sanctions. The legal rules relating to blockades (as detailed infra note 43) appear to meet the criteria for economic sanctions set out in Section I supra—withholding of economic goods, rather than direct military attacks on military targets.

⁴³ Schmitt, Michael N., Garraway, Charles H.B. & Dinstein, Yoram, The Manual on the Law of Non-International Armed Conflict With Commentary (2006)Google Scholar [hereinafter the San Remo Manual]; see also Doswald-Beck, Louise, The San Remo Manual on International Law Applicable to the International Law of the Sea, 89 Am. J. Int'l L. 192 (1995)CrossRefGoogle Scholar (discussing generally the Sam Remo Manual); see especially San Remo Manual, arts. 93-104:

Blockade

93. A blockade shall be declared and notified to all belligerents and neutral States.

94. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.

95. A blockade must be effective. The question whether a blockade is effective is a question of fact.

96. The force maintaining the blockade may be stationed at a distance determined by military requirements.

97. A blockade may be enforced and maintained by a combination of legitimate methods and means of warfare provided this combination does not result in acts inconsistent with the rules set out in this document.

98. Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.

99. A blockade must not bar access to the ports and coasts of neutral States.

100. A blockade must be applied impartially to the vessels of all States.

101. The cessation, temporary lifting, re-establishment, extension or other alteration of a blockade must be declared and notified as in paragraphs 93 and 94.

102. The declaration or establishment of a blockade is prohibited if:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or.

(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:

(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and

(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.

104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.

⁴⁴ Sam Remo Manual, supra note 43.

⁴⁵ As too the general discussion of parallel application of IHL and Human Rights in armed conflicts see Ben Naftali & Shany, supra note 20; Legal Consequences of the Construction of a Wall, paras. 105-13.

⁴⁶ ICCPR, art. 6 14(1), 14(3).

⁴⁷ International Covenant on Economic, Social and Cultural Rights, art. 11, Dec, 16, 1966, 993 UNTS 3.

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

⁴⁸ See Dennis, Michael J., Application of Human Rights Treaties Extraterritorially in Times of Armed Conflicts and Military Occupation, 99 Am J. Int'l L. 119 (2005)CrossRefGoogle Scholar (discussing the U.S. position); see Banković case, supra note 20 (surveying the European position); see generally Ben -Naftali & Shany, supra note 20 (discussing in general the Israeli position).

⁴⁹ See generally Lubell, Noam, Parallel Application of International Humanitarian Law and InternationaI Human Rights Law: An Examination of the Debate, 40 Isr. L. Rev 648 (2007)CrossRefGoogle Scholar (providing a general survey of this issue).

⁵⁰ GCIV, art. 33.

⁵¹ API, art. 75 2(d).

⁵² ICRC Study, supra note 40, at 374 (Rule 103).

⁵³ Targeted persons are not necessarily citizens of the country against which the sanctions are directed. See Buys, Cindy G., US Economic Sanctions: The Fairness of Targeting Persons from Third Countries, 17 B.U. Int'l L. J. 241 (1999)Google Scholar.

⁵⁴ See, e.g., Amnesty Int'l, Trapped—Collective Punishment in Gaza, Aug. 27, 2008, available at http://www.amnesty.org/en/news-and-updates/feature-stories/trapped-collective-punishment-gaza-20080827.

⁵⁵ See supra note 48.

⁵⁶ Pictet, supra note 24, para. 46; Sandoz, Yves et al. , Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convention para. 2910 (1987)Google Scholar.

⁵⁷ API, art. 75 which might represent Customary International Law. See ICRC Study, supra note 40, at 299.

⁵⁸ API, art. 75:

1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, color, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honor, convictions and religious practices of all such persons.

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

…

(d) Collective punishments;…

⁵⁹ Sandoz et al., supra note 56, para. 3055.

⁶⁰ ICRC Study supra note 40, at 374.

⁶¹ See supra note 45.

⁶² GCIV, art. 23.

⁶³ Of course under a different law of international law, for example—if the withholding of the good or service is done in a way which discriminates according to ethnicity—it may be prohibited.

⁶⁴ Sherman, William T., Memoirs of General W.T. Sherman, ch. XXI (Library of America, 2nd ed. 1990)Google Scholar (1889) a transcript of the memoirs is available at http://www.sonshi.com/sherman.html.

⁶⁵ See, e.g., the Lidice Massacre of June, 1942, for a description of this event see http://www.lidice-memorial.cz/history_en.aspx.

⁶⁶ Of course, even specific prohibitions may be subject to limitations because of actions of others see, e.g., GCIV, art. 23:

Each High Contracting Party shall allow the free passage of all consignments of medical and hospital stores[.…]

The obligation of a High Contracting Party to allow the free passage of the consignments[ … ] is subject to the condition that the Party is satisfied that there are no reasons for fearing:

(a) that the consignments may be diverted from their destination.

(b) that the control may not be effective…

⁶⁷ I do not intend to discuss the general problems with the widening and the extended use of IHL standards, which contribute to the ambiguous law in these areas.

For a discussion of these issues see Amichai Cohen, The Proportionality Principle and War in Lebanon, available at http://ssrn.com/abstract=983436; Cohen, Amichai, Rules and Standards in the Application of International Humanitarian Law, 41(1&2) Isr. L. Rev. 41 (2008)CrossRefGoogle Scholar.

⁶⁸ These are not meant to be the most important theories in international law, but they represent two extremes. If these two theories support a position, is easier to assume that all theories “in between” also support them.

⁶⁹ There is a wide support for this position in various academic writings, especially with regards to human rights and humanitarian law instruments. Actually, the Martens clause which appears in several international humanitarian law treaties, specifically mentions that the rules included in these treaties is based on the common conception of morality. See Meron, Theodor, The Hague Peace Conferences: The Martens Clause, Principles of Humanity and Dictates of Public Conscience, 94 Am. J. Int'l L. 78 (2000)CrossRefGoogle Scholar.

⁷⁰ See, e.g., Goldsmith, Jack & Posner, Eric, The Limits of International Law (2005)Google Scholar.

⁷¹ Gordon, supra note 5.

⁷² Segall, Anna, Economic Sanctions: Legal and Policy Constraints, 836 Int. Rev. Red Cross 763 (1999)Google Scholar.

⁷³ Kalshoven, Frits & Zegveld, Liesbeth, Constraints on the Waging of War 13–14 (2001)Google Scholar.

⁷⁴ I do not mean to claim that only non-State actors act from within civilian population, or that all non-State actors do so. However, in asymmetrical conflicts there is always the incentive for the weaker Party to act from within a civilian population because of its ineffectiveness in the open field. Symmetrical conflicts are usually between two opponents of similar strength, thus lacking a built-in strength bias. Therefore this incentive is usually not found.

⁷⁵ Goldsmith & Posner supra note 70, at ch. 7.

⁷⁶ This is the realist justification for most of IHL rules see Morrow, James D., The Laws of War, Common Conjectures, and Legal Systems in International Politics, 31 J. Leg. Stud. 41 (2002)CrossRefGoogle Scholar; Posner, Eric A., Terrorism and the Laws of War, 5 Chic. J. Int'l L. 423 (2005)Google Scholar.

⁷⁷ Once again, I do not claim that all non-State actors never respect IHL rules. There are examples of informal agreements between States and non-State actors which limit the armed conflict and have been respected. See, e.g., Waldman, Adir, Clashing Behavior, Converging Interests: A Legal Convention Regulating a Military Conflict, 27 Yale J. Int'l L. 249 (2002)Google Scholar (analyzing the informal understandings between Israel and Hezbollah to limit the consequences of the conflict in Lebanon). Additionally, non-State actors can even accept the entire gamut of IHL by submitting a declaration according to Article 96 of API. What I claim is that in those cases where terrorist organizations, non-State actors, guerilla groups, etc., do not respect IHL, a State has less of an interest to limit its actions against those organizations.

⁷⁸ Posner, supra note 76.

⁷⁹ There is extensive political science on this subject see, e.g., Delbruck, Hans, 4 A History of the Art of War 293–315 (Eng. ed. 1985)Google Scholar; Van Creveld, Martin, The Transformation of War 20–25 (1991)Google Scholar; Kober, Avi, Low Intensity Conflicts: Why the Gap between Theory and Practice, 18(1) Def. & Security Analysis 17, 31, n.10 (2002)Google Scholar.

⁸⁰ Slaughter, Ann-Marie, A New World Order (2004)Google Scholar.

⁸¹ Of course, the fact that some politicians overemphasize the benefits of economic sanctions does not make their use irrational. It only means that their use must be limited in order to be rational. My suggestions hereinafter intend to achieve exactly that.

⁸² There is a strong claim that economic sanctions on Cuba are kept only because they are supported by the strong Cuban community in Florida—a key state in American politics—and not because of any effectiveness of the sanctions. See, e.g., Colomer, Josep M., Who Could End the Embargo? A Game Theoretic Perspective 14 Transt'l L. & Contemp. Probs. 163, 172 (2004)Google Scholar.

⁸³ See the text adjacent to supra note 43.

⁸⁴ See, e.g., Clawson, Patrick, Sanctions as Punishment, Enforcement, and Prelude to Further Action, 7 Ethics & Int'l Aff. 17, 19–20 (1993)Google Scholar.

⁸⁵ See, e.g., sanctions imposed on Iran by the Security Council S.C. Res. 1737, U.N. Doc. S/RES/1737 (Dec. 27, 2006); S.C. Res. 1747, U.N. Doc. S/RES/1747 (Mar. 24, 2007) which target specific persons involved in the WMD industry, weapons, corporations etc.

⁸⁶ I use the Iranian sanctions not as a legal normative analysis of economic sanctions—because there is no armed conflict of any country with Iran (yet?). However, they are examples of the practice of targeted sanctions, which I claim has only limited effect.

⁸⁷ S.C. Res. 1737 and S.C. Res. 1747, supra note 85.

⁸⁸ See generally Gardam, Judith, Necessity and Proportionality in International Law (2000)Google Scholar.

⁸⁹ Note that causing incidental or collateral damage is not forbidden even if the attacking party knew for a fact that damage would occur, so long as such damage does not exceed the required one, and that the damage is not excessive compared to the military objective to be achieved see API, art. 51(5) (b).

⁹⁰ Note that the issue addressed is different and wider from the question of counter-measures. Economic sanctions could of course be counter-measures, and then subject to the limitations on counter-measures, which include the limitation of proportionality. See Draft Articles on Responsibility of States for Internationally Wrongful Acts, International Law Commission, art. 51, U.N. GAOR. 56^th Sess. Supp. No. 10, U.N. Doc. A/56/10 (2001). Economic sanctions, however, are not necessarily counter-measures, and hence are not completely regulated as such.

⁹¹ There is of course wide literature evaluating if the principle of proportionality can actually be applied. See, e.g. Shany, Yuval & Cohen, Amichai, A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case, 5 J. Int'l Crim. Jus. 310 (2007)Google Scholar; see also Cohen, Amichai Proportionality in the Modern Law of War: An Unenforceable Norm or the Answer to Our Problems? 20 Perspectives (Aug. 15, 2006)Google Scholar, available at http://www.biu.ac.il/SOC/besa/perspectives20.html.

⁹² See, e.g., Weiner, Justus Reid & Bell, Avi, International Law and the Fighting in Gaza, 1, 23–25 (Jerusalem Center for Public Affairs – Global Law Forum, Dec. 1, 2008)Google Scholar, available at http://www.globallawforum.org/UserFiles/File/lawbooknovember.pdf.

⁹³ Supra Section II.

⁹⁴ See Ben-Naftali & Shany, supra note 20.

⁹⁵ In addition to the jurisdictional issues stated earlier, it seems preposterous to think that States have taken upon themselves wide human rights obligations toward any effect of their actions, even where they did not have any actual control of the area. See Banković case, supra note 20 (supporting this opinion); cf. in this issue Shany, Yuval, The Law Applicable to Non-Occupied Gaza: A Comment on Bassiouni v. The Prime Minster of Israel, 42 Isr. L. Rev. 101 (2009)CrossRefGoogle Scholar (discussing an alternative opinion).

⁹⁶ See supra text adjacent to note 47.

⁹⁷ Id.

⁹⁸ IHL instruments, supra Section II.

⁹⁹ The Legality of the Threat or Use of Nuclear Weapons is used as an example that no weapon is severe enough to be totally prohibited. Apart from the fact that is quite unclear what exactly this Advisory Opinion states, it is important to note that the use of nuclear weapons, which is not prohibited, is exactly the case that economic sanctions cannot be used. No State will use economic sanctions when its existence is at stake. In any other case, it is justified to prohibit any use of sanctions.

¹⁰⁰ See supra Section III.

¹⁰¹ See, e.g., API, art. 57.

¹⁰² There is an abundance of literature detailing international law as a method for imposing policies on domestic counterparts. This Article does not expound upon this issue. See generally Moravcsik, Andrew, A New Statecraft? Supranational Entrepreneurs and International Cooperation, 53(2) Int'l. Org. 267 (1999)CrossRefGoogle Scholar (claiming that international human rights laws were imposed in central and eastern European countries in order to block future changes in governments and a reversion to communism) Slaughter, Ann-Marie, Government Networks: The Heart of the Liberal Democratic Order, in Democratic Governance and International Law (Fox, Gregory H. & Roth, Brad R. Eds., 2000)Google Scholar, 199, at 216 (claiming that bankers form a transnational governmental network which bypasses decisions of domestic governments)

¹⁰³ A wide volume of writing about the effectiveness of economic sanctions exists. Some of the most recent works are: Caruso, Raul, The Impact of International Economic Sanctions on Trade—An Empirical Analysis (2003)Google Scholar, available at SSRN: http://ssrn.com/abstract=895841; Yang, Jiawen et al. , US Economic Sanctions Against China: Who Gets Hurt?, 27(7) The World Eco. 1047 (2004)CrossRefGoogle Scholar; Escriba-Folch, Abel & Wright, Peter, Dealing with Tyranny: International Sanctions and Autocrats' Duration, IBEI working papers 2008Google Scholar, available at http://ssrn.com/abstract=1159677; Parker, Richard W., The Cost Effectiveness of Economic Sanctions, 32 Law & Pol'y in Int'l. Bus. 21 (2000–2001)Google Scholar.

¹⁰⁴ Reisman, supra note 3.

¹⁰⁵ Reisman, supra note 3, at 591.

¹⁰⁶ Id. at 592.

¹⁰⁷ As mentioned in Section V(A), this is relevant only if the State has a duty to provide oil.

¹⁰⁸ It is not this Article's purpose to completely analyze Kant's approach and its compatibility with current IHL. See, e.g., Orend, Briand, Kant on International Law and Armed Conflict, 11 Can. J. L. & Juris. 329 (1998)CrossRefGoogle Scholar.

¹⁰⁹ See, e.g., API, art. 57; ICRC Study, supra note 40, at 51.

¹¹⁰ One could imagine cases where specific economic sanctions cause immediate damage see, e.g., stopping the flow of electricity which can immediately stop life preserving medical devices. However, this Article claims that military operations are more likely to have these immediate effects and it is less likely for economic sanctions to have them.

¹¹¹ Of course, if the State does not consider it an interest it does not have to impose these limitations.

¹¹² See, e.g., Goldsmith & Posner, supra note 70; Abbott, Kenneth, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Int'l L. 335 (1989)Google Scholar; Guzman, Andrew, International Law: A Compliance Based Model, 90 Cal. L. Rev. 1823 (2002)CrossRefGoogle Scholar; Guzman, Andrew T., How International Law Works: A Rational Choice Theory (2008)CrossRefGoogle Scholar. For a somewhat different account see Hathaway, Oona A., Between Power and Principle: An Integrated Theory of International Law, 72 U. Chic. L. Rev. 469 (2005)Google Scholar.

¹¹³ GCI, art. 46, which prohibits reprisals against wounded in land; GCII, art. 47, which prohibits the reprisals against wounded and survivors of shipwrecks at sea; GCIII, art. 13, prohibits reprisals against prisoners of war; GCIV, art. 33 prohibits reprisals against civilians in occupied territories. APII, art. 51(8) states that: “Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57.”

¹¹⁴ Cohen, The Proportionality Principle and War in Lebanon, supra note 67.

¹¹⁵ Posner, supra note 76.

¹¹⁶ Ozdag & Aydinli, supra note 21.

¹¹⁷ The details in these sections are based on the decision of the Israeli Supreme Court in HCJ 9132/07 Gaber Al-Bassiouni v. The Prime Minister [Jan. 30, 2008] (unpublished) an official English translation, available at http://elyon1.court.gov.il/files_eng/07/320/091/n25/07091320.n25.pdf.

¹¹⁸ Id. para.12

¹¹⁹ See, e.g., Shany, supra note 95; Shany, Yuval, Faraway, So Close: The Legal Status of Gaza after Israel's Disengagement, 8 Y.B. Int'l Human. L. 369, 373 (2005)Google Scholar; Mari, Mustafa, The Israeli Disengagement from the Gaza Strip: An End of the Occupation?, 8 Y.B. Int'l Human. L. 356, 366 (2005)Google Scholar; Stephanopoulos, Nicholas, Israel's Legal Obligations to Gaza After the Pullout, 31 Yale J. Int'l L. 524, 525–26 (2006)Google Scholar; Martin, Susan, Warner, John, & Fagen, Patricia, Palestinian Refugees in Gaza, 28 Fordham Int'l L. J. 1457, 1464 (2004–2005)Google Scholar.

¹²⁰ Press Release issued by the Prime Minister's Office, Security Cabinet Declares Gaza Hostile Territory, Sept. 19, 2007, http://www.mfa.gov.il/MFA/Govemment/Communiques/2007/Security+Cabinet+declares+Gaza+hostile+territory+19-Sep-2007.htm [hereinafter the Gaza Strip decision];see also Al-Bassiouni v. The Prime Minister, supra note 117, para. 2 (noting the decision of the Israeli Cabinet from Sept. 19, 2007).

¹²¹ The Gaza Strip decision, supra note 120, para. 4 (“The sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis.”).

¹²² See Al-Bassiouni v. The Prime Minister, supra note 117.

¹²³ Gisha Report, supra note 22.