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Yemen war and international law of armed conflict








TEHRAN TIMES

Yemen witnessing the worst human catastrophe in today’s world 

At the fourth pre-session of the international conference on international law and armed conflict in the region, a faculty member of MOFID University, Mohammad Habibi Mojandeh, pointed to the issue of military intervention of the Saudi-led coalition in Yemen with a focus on “criticism of the doctrine of intervention with invitation” and stated, “What we are witnessing today in Yemen, as the United Nations has described it, is the worst humanitarian disaster in the contemporary world of today.”

He continued, “This tragedy has left the small country of Yemen with a population of about 28 million, which was considered as the poorest Arab country in the region before the Saudi-led coalition military aggression, in a very critical situation in a way that about 150,000 people in Yemen have lost their lives and consequently, hundreds of thousands of Yemeni people have been injured and/or disabled.

Mohammad Habibi Mojandeh, who is a jurist, raised the question whether such military intervention is justifiable from perspective of international law, saying, “I believe that this military intervention is not justified from perspective of international law. Although justifications have been raised for it, these justifications do not have the ability to stand up in the face of these challenges. The Saudi-led military intervention in Yemen, which has resulted in nothing but destruction, cannot be justified under international law in the contemporary world.”

“That legitimate collective defense requires a foreign military attack which is completely rejected here. What is raised as indirect military aggression, i.e. Iran's claim of support for the Houthis (Ansarullah Movement in Yemen), firstly because level of support does not reach the threshold that Houthis’ measures can be attributed to the Islamic Republic of Iran, and secondly the Islamic Republic of Iran is not explicitly mentioned in the documents and correspondence as intervening countries in a way that the Islamic Republic of Iran itself has categorically denied any interference in Yemen’s war, so, this claim is also rejected.”

He said, “The most important reason for recognizing Mansour Hadi's government seems to be the resolution issued by the UN Security Council (UNSC) after the Saudi-led coalition attack, in which it (UNSC) referred to the legitimacy of Hadi's government.”

He concluded that since many countries including Russia, China, Iran, Iraq and Oman opposed the military attack on Yemen and called it contrary to international law, therefore, it cannot be said that there was an international consensus to recognize Mansur Hadi as president.

International law cannot be indifferent to the humanitarian catastrophe in Yemen

Emphasizing that international law cannot be indifferent to this humanitarian catastrophe, Mojandeh said, "Any basis for justifying military intervention in Yemen, that has led to such consequences and damages, must be measured and evaluated with other areas of international law, the most important of which is the right to self-determination.”

In the end, he reiterated that a foreign interventionist cannot intervene to suppress a nation and create a human catastrophe. Therefore, the theory of intervention with invitation on the issue of Yemen should be considered and revised.

The issue of Yemen is a great human tragedy

Dr. Pourya Askary, a faculty member of Allameh Tabatabaei University, was the next speaker who raised the issue of challenges of observing humanitarian rights in the Yemen and stated, “The scourging and destructive war in Yemen started in 2015 and the reason is not clear; but this war has been a humanitarian catastrophe. Dragging Yemeni people to famine and killing of civilians are the outcome of waging war on Yemen and today, these tragedies have aggravated the daily life of Yemeni people with the spread of coronavirus, COVID-19, in this war-torn Arab country.”

He noted that today, after 5 years of the destructive war, Yemen has become a breeding ground for expansion of terrorism, and al-Qaeda on the one hand and ISIL on the other hand," he said.

In the Yemen crisis, the principle of segregation, proportion and caution is not observed

Another challenge in the issue of Yemen is the focus of coalition forces on air strikes. Statistics show that from 2015 up to the present time, 60,000 airstrikes have been carried out by Saudi coalition forces. That is to say, dozens of airstrikes a day have been launched in Yemen, each of which dropped a significant amount of bombs on the Yemeni people.

“What we see in the scene is that the principle of segregation, proportion and caution is not observed, and this is the main challenge and perhaps the most important humanitarian challenge in the issue of the Yemeni war,” Askary emphasized. 

“Under international law, arms sales by the United States, Britain and France must be stopped, but we do not see it,” he added.

"In a situation where civilians are victims and have no choice, it is natural to expect the international community to come to their aid," he said, adding that in such situations, the humanitarian corridor must reach the people caught in the fire of conflict. 

“Therefore, we see that the Yemeni people are left alone with the pains of war, famine, hunger and spread of COVID-19, without finding a way to get rid of them,” he lamented. 

The Laws of occupation must be considered in the current situation in Yemen

Following this virtual meeting, Professor Marco Sassoli, a faculty member of the University of Geneva, stated, "I want to speak about international humanitarian law. I think the sad situation in Yemen is an illustration of the pertinence of humanitarian law, because if it was respected, the situation would be totally different."

He reiterated that it also indicates some deficiencies of the existing rules. 

"The first problem in humanitarian law is obviously the classification of the armed conflict of international and non-international. Normally we have to strictly separate these two arenas. The question which rises regarding the classification of the conflicts under humanitarian law in case of Yemen’s war is who was the head of government of Yemen when Mansour Hadi asked for the intervention of the Saudi led coalition?" he remarked.

Speaking about Mansour Hadi's administration, he said if Hadi’s government is not an effective one, then the law of international armed conflict could be applied. 

"Obviously, here we can see a certain impact of the UN Security Council resolutions which asked for support for Hadi’s government. This can have an impact on the interpretation of which side is the legitimate government of Yemen at the time when the intervention was consented upon. Some experts even suggest that international humanitarian law of international armed conflict should apply when there is an outside intervention even consented by the government," he stated. 
 
he reiterated, "Well, this is a nice idea, but it does not correspond to state practice. Obviously, as was mentioned, the law of international conflict could also apply if there is foreign support in favor of the rebels. But I agree with what was said that in my assessment, Iran did not have overall control over the Houthi. And I remind you that internationalization could only happen if a foreign state does not just support or help, but has overall control over the rebels."

Sassoli said that sometimes the law of international conflicts is applied, when there are hostilities between forces.

"For instance, there are hostilities between forces supported by Saudi Arabia and forces supported by the United Arab Emirates. This was the Saudi Transitional Council in Aden. Anyway, the classification of the conflict is not so important because, on most issues, the law of international and non-international conflicts is the same, but this is not the case about ‘all’ issues. Obviously, when it comes to the occupation of a territory, only the laws international armed conflict is applied. It is also true about the prisoners of war and combatants," he said, giving an example. 

He reiterated that, "That said, we can conclude that the law of non-international armed conflicts is applicable for Yemen war. Then another question pops up: whether the additional protocol to the Geneva conventions, to which Yemen is a state party, applies? At least, under the lens of article one or protocol two, only Yemen is bound to these laws, not the foreign state which intervenes too heavily. But one could say that if you intervene to help the government, which is bound by protocol two, if you are a party to the protocol, you have to respect the protocol too. The last question is whether the United States and the United Kingdom are parties? Under the support-based approach, some of you may know that the international committee of the red cross has suggested that in a non-international armed conflict if foreign States commit an act which would constitute direct participation in hostilities in the support of one of the parties, they become parties. Even if the intensity of their support would not be sufficient to trigger the applicability of the law of non-international armed conflicts."

Sassoli remarked, "Now let's talk about targeting or bombardments, and the distinction between civilians and combatants' arms. As was mentioned there were residential areas, markets, funeral centers, detention facilities, medical facilities, religious sites, refugee camps which were hit. But the fact that they were destroyed and people there were killed, is not yet so decisive to be accounted as a ‘violation’ under the humanitarian law, because the question is, as you know, what was their target? One can argue that there might be legitimate targets in a residential area, such as rebel commanders or a weaponry construction factory. It may be attacked. And even in a refugee camp, there could be a legitimate target. But even in this case, obviously, the proportionality principle becomes applicable and the attacker must take all feasible precautions to minimize civilian impact. So, it is very difficult to judge whether a law was violated. There is an international commission, a group of eminent international and regional experts on Yemen, which asked all kinds of questions from the Saudi led coalition, like “why there were so often civilians killed in these attacks?” The problem is that the belligerent does not have an obligation to give an answer to that!"

"We would need to know not only what was hit, but also what was targeted. And for this, we would need to know the plans of the Saudi-led coalition. Now, one of the interesting, but also dangerous developments in Yemen is that there are no-strike lists and so-called humanitarian notifications. So there is a system in which the Saudi-led coalition is informed of the locations of humanitarian static locations and humanitarian movements in Yemen, aiming to ensure the safety and security of humanitarian, premises, personnel equipment, and activities in the areas of military operations," he said. 

Sassoli said that this is coordinated by the UN, by the Office on Humanitarian Affairs and etc. This gives the wrong impression that everything else can be hit. 

"But the basic idea of humanitarian law is that you may only hit something, you may only target something if you know that it is a military objective. What we see in Yemen is somehow the reverse: it gives the impression that everything which has not been notified outside the humanitarian side is a legitimate target of attack. Now, why should a hospital under the management of an NGO like Doctors Without Borders be better protected than a local hospital? Why should offices of an NGO be better protected than a simple civilian house? The humanitarian organizations which notify those positions can control that there are no military activities there. Obviously, a humanitarian impartial organization would be very embarrassed if it has to notify lots of positions like that," he said. 

He reiterated, "Clearly, it’s much easier for these humanitarian organizations to report the locations which are being used for military activities like distributing or storing weaponry. In this case, it would be much more delicate for them to inform the Saudi-led coalition that there is no more humanitarian protection in those locations. I think this is a very doubtful idea."

"Let’s speak about proportionality there again. There is a means of evaluation, which includes the reverberating effect in particular, in urban areas," he said, elaborating by giving an example. 

"Imagine there is a military objective which is located in midst of a town and you have to destroy it. When you destroy this military objective in a town, you will also destroy the water pipes and the electricity lines under or near it. This effect may not be disproportionate. But if you have several such attacks, then the entire infrastructure for the civilian population will be affected. Then many civilians will die, not from the bomb, but from the lack of purified water. Or hospitals can no longer operate because there's no more electricity. This is something which should be much more taken into account, because proportionality is not only about the individuals who are standing nearby, but also about the second or third layers of the effects an attack might leave behind. In case of Yemen’s war, one thing which is particularly raising concern is that hospitals were destroyed," he stated. 

"It is often argued, including by humanitarian organizations, that above-mentioned hospitals are deliberately targeted to weaken the resilience of the civilian population or of the fighters. I must say, such behavior may be beyond imagination, but unfortunately, this seems to be the case. Nevertheless, we have to understand that even if a hospital loses [humanitarian] protection, even if it is used for activities outside its humanitarian functions which are harmful to the enemy, still there must be first a warning and the appropriate time limit before you can attack. It’s not like you can bomb this place without any warnings and then announce that you bombed it because it was used by the enemy. You must first warn the hospital and the hospital must have time to rectify the situation. Things might be different when it comes to schools. In existing humanitarian laws, schools do not have special protection like hospitals. But obviously, schools are civilian locations. But on the other side, it is not unlawful to use a school for military purposes," he stressed. 

"Obviously, you have to evacuate the children. But even if then the school is destroyed after the evacuation, children will have no more educational infrastructure. In my view, this has to be taken into account in the proportionality evaluation," he said. 

He stressed that a particular issue in Yemen is also that of sieges and blockades. Sieges are on land warfare when one party besieges a town and does not let anyone in or out, which means that the civilians in the besieged town will starve. 

"This is really something where humanitarian law does not fit to the reality because how can you solve this problem using humanitarian law? You can then solve this problem only if the civilians are let out. But obviously, the fighters who are besieged in the city do not like to let the civilians out because if they do so, the enemy can simply attack the entire town. So, there are always ordinary civilians in a besieged who have to be respected. In this case, humanitarian assistance for civilian population must be led in, but here the problem is the besieging party may insist on a distribution system in the besieged town to make sure that only civilians will benefit from the humanitarian assistance. This obviously never works because no organization can guarantee that in the end, the fighters will not benefit from the humanitarian assistance. It is lawful to starve, because this may make them surrender, and then they must be fed," he said. 

He remarked, "Now let’s go to the issue of blockade in Naval warfare. Well, first of all, I would say this is a very old-fashioned institution. I'm not sure if such an institution also exists in aerial warfare or not. We often make an analogy between aerial warfare and Naval warfare. Astonishingly, under traditional customary law, it is lawful to declare a blockade, but only in an international armed conflict over an enemy coast, which means that you don't let anything in and you don't let anything out. But blockades are unlawful if they are employed only to starve the civilian population. One could argue that humanitarian assets used for the civilian population must be led through. In my opinion, what we see in Yemen is a non-international armed conflict, and no one can use blockade in a non-international armed conflict."

The academician said, "However, Saudi-led coalition did not officially declare a blockade in Yemen. The UN Security Council also did not authorize a blockade. So, officially the coalition only controls Yemeni ports and imports of member states and this has been authorized by the security council. If the idea would be that Hadi’s government is the legitimate government of Yemen, these measures could be taken even without a UN Security Council resolution. In this case, the excuse for deprivation of Yemenis from humanitarian assistance will be the bureaucratic flaws as we see in many other conflict areas like Syria."

Sassoli stated, "It is clear that weapons enter Yemen, but apparently not from the sea and by the ships which are controlled both by the coalition and UN. The ships bring the food necessary for the civilian population, because Yemen is a net importer of food. 

Then comes the issue of protecting wounded, sick, hospitals and ambulances. The wounded and the sick must be respected, collected, and cared for without discrimination. Both sides must be committed to this. So enemies and your own comrades have to be treated in the same way. I already mentioned that the hospitals may be targeted only under very exceptional conditions, but it’s not unlawful to search and investigate hospitals and ambulances, unless there's a special agreement to enter a hospital and to try to find enemies in that hospital and then to arrest those enemies. But if there are patients, if they are wounded and sick, they must be treated properly."

"Now, when it comes to detainees, unfortunately, we have reports about ill-treatment of detainees, rape, and detention conditions which are unacceptable. From a legal point of view, obviously, we have to make sure whether these people should basically be detained or not. There must be a reason for detention. There must be a legal basis and a procedure for internment. In my view, both side of conflict can and must establish courts. They must establish mechanisms, which make sure that there is a control of the legality of the detention of such persons," he said.

"Now, an important issue is obviously humanitarian access and humanitarian assistance. The starting point is that the starvation of the civilian population is prohibited. Here, I like to read an article of protocol additional to article 18. I find it interesting because it starts well, it says: “if the civilian population is suffering from undue hardship” –  which is certainly the case in Yemen owing to a lack of supplies essential for its survival such as foodstuff and medical supplies, I would say in Yemen fuel is also an object indispensable for the survival of the civilian population, because you need fuel to operate the water pumps and the lorries which transport the food into the regions where the civilian population is in need –  'relief actions for the civilian population which are of an exclusively humanitarian and impartial nature, and which are conducted without any adverse distinction shall be undertaken,'" he noted.

Sassoli stressed that unfortunately, the provision continues to say, “Subject to the consent of the high contracting party concerned”. 

"However, also under recent Security Council resolutions including those concerning Yemen, the arbitrary denial of consent is prohibited. And one could make the argument that for the regions controlled by the Houthi, it is sufficient if the Houthi would agree with the humanitarian assistance brought for instance from Oman. It is important to stress that humanitarian assistance is not only and mainly the task of the humanitarian organizations, but the besieging government also has the obligation to make sure that the inhabitants benefit from humanitarian assistance and all belligerence must let humanitarian assistance in if the civilian population is in need," he said. 

"Another problem is the association of children with government forces and armed groups. You know that under the Geneva conventions and the different protocols, children under 15 years not be used to participate in hostilities and may not be recruited. This is unfortunately violated sometimes in Yemen. But I think one should not over-stress the association of children with the armed group, because although the governments and armed groups often do not have a civilian branch, education branch and so on, but the people fighting along with an armed group may have their children and their families by their side. Therefore, sometimes you cannot avoid association of children with armed groups. Simply they may not be used to take part in hostility. 

Obviously, human rights laws also apply in Yemen. This leads us to the issue of the relationship between international humanitarian law and human rights law. The advantage of human rights law is that there can be all kinds of commissions of inquiry debates in the UN human rights council," he remarked. 

The professor said that there's often only the international committee of the red cross, which works confidentially and bilaterally. 

"Therefore, we do not have public reports about the respect or the violation of those laws. Most of the humanitarian problems in Yemen are also violations of human rights law. Human rights law binds the state regarding everyone on the territory of this state, even in the respect of inhabitants who are in rebel-controlled areas. There are jurisprudences, for instance that of the European court on human rights, that imply even if a government does not control a certain area, it has remaining obligations on the human rights of the inhabitants of its territory. And this is precisely important for humanitarian accesses. So while I said that under humanitarian law, you need the consent of the government to bring humanitarian assistance in rebel-controlled areas, under human rights law, the government MUST give his consent to fulfill the right to health, the right to food, and the right to life of the inhabitants of those areas," he reiterated. 

"One big issue is the extraterritorial application of human rights law. It is clear that the government of Yemen has to comply with the human rights of inhabitants of Yemen. Saudi Arabia and the United Arab Emirates also have to comply with human rights law in Yemen, but their compliance is controversial. There is no doubt that human rights law also applies if they occupy a territory, but if they just support the government or they conduct hostilities, then it is not clear whether human rights applies or not," the academician noted. 

"There has been a recent decision by the European Court of Human Rights in the case of Georgia against Russia. Even this court, which is generally quite progressive, has found that during the hostilities, the persons affected by bombardments, for instance, are not under the jurisdiction of the state which is bombing. Another problem with human rights law is that it’s not clear whether human rights law binds armed groups or not? In Yemen, there is controversy over who is the government and who is the rebels? This diminishes the utility of human rights. To conclude, I would say, most of the humanitarian problems except the issue of humanitarian assistance, are adequately regulated by international humanitarian law. The problem is mainly “respecting those laws” and even a controversy about the classification of the conflict. Whether it is an international or a non-international armed conflict would not fundamentally change those rules. So, the real issue is how do we make the belligerence respect those rules? This is a problem, unfortunately in all conflict areas, including Yemen," Sassoli noted.

The link to the conference: iil.qom.ac.ir

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