The War in Yemen and Death of the Moroccan Pilot During Operation “Decisive Storm”

On Sunday 10th May, one of the F-16s of the Moroccan Royal Armed Forces involved in the international coalition led by Saudi Arabia intervening in Yemen went missing. For the following days, both sides- the Houthi and the coalition searched into what happened to this missing plane.  The coalition concluded that the security and safety of the pilot is the Houthis’ responsibility. On Friday 15th May, the body of the pilot has been located and found dead and his body returned home later the same week. This incident highlights a broader question and issue in relation to current events in Yemen – whether the war in Yemen is an International Armed Conflict or Non-International Armed Conflict.

The historical background of the Yemeni situation is crucial to understanding the significance of this question. Yemen today is divided into a violent political struggle between two forces: the internationally recognized president Abd Rabbuh Mansour Hadi and his government and the Houthi militant forces, which pushed the president and his government from power and into exile and occupied the capital Sana’a. President Hadi announced his resignation and sent a letter of his resignation to the parliament stating that he could not continue in his office after the Houthis failed to honour a peace deal. Parliament has reportedly refused to accept the resignations.

These forces, few weeks later, dissolved the parliament and established what is called the revolutionary committee. Hadi had been under virtual house arrest in his residence in Sana’a for a month until he found a way to escape to Aden. Upon his arrival in Aden, Hadi withdrew his resignation and considered all the previous actions from the Houthi forces as a “coup d’état.”

On 25th of March, president Hadi asked the UN Security Council to authorize “willing countries that wish to help Yemen to provide immediate support for the legitimate authority by all means and measures to protect Yemen and deter the Houthi aggression,” and his Foreign Affairs Minister Riad Yassin requested military assistance from the Arab League based on the collective self-defense doctrine under the article of 51 of the UN charter.

Internationalizing the conflict

The following day after request, the Arab Coalition led by Saudi Arabia – backed with US strategic support – started launching airstrikes against Houthi bases in Yemen. The coalition insists on their right to respond to the requests and needs of president Hadi and to provide military assistance to the legitimate authority in Yemen. The intervention and the death of the Moroccan pilot raised the question of whether the Yemeni situation still is Non-International Armed Conflict or had it turned into an International Armed Conflict?

Bear in mind that all of the countries in the war including Yemen signed and ratified the four Geneva Conventions of 1949 and Additional Protocols I and II.

The situation in Yemen, before the coalition intervention, can be considered a civil war or Non-International Armed Conflict (NIAC) as per Common article 3 of the Geneva conventions and additional Protocol II.[3] Common article 3 establishes the minimum standards of the laws of war, which are to be applied in an armed conflict taking place within the boundaries of a state, like the war between the government and a rebel group or two rebel groups.  Common article 3 sets the minimum standards that each party in the conflict should be bound by during the conflict which focuses on treating non-combatants, the wounded and sick humanely and without any discrimination depending on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. The other obligations under the four Geneva conventions are not applicable during this kind of conflict.

After the international coalition military intervention in the war, this protection is limited in comparison with the protection under the four Geneva conventions and additional protocols I and II, especially after the increase of the Yemeni civilians’ death. The international coalition intervention in Yemen changed the situation on the ground. Therefore, we should accept that the coalition intervention affected the Yemeni situation and turned it into an International Armed Conflict (IAC), where the Four Geneva Conventions and additional protocol I apply, especially between Houthi militias and the coalition forces. Despite  the fact that, the coalition intervened in the situation on behalf of the internationally recognized government, the effective control over the Yemeni territory remains in doubt as Houthi militias control the Capital, in addition to the massive amount of the death and injuries, this pushes us to consider the situation a International Armed Conflict, which would increase the need to protect civilians from the damaging results of the crisis and work towards the International Humanitarian Law principles.

The consideration of the Yemeni situation as a NIAC will put the international community in contradiction with the object and purpose of the four conventions because the Geneva Conventions were adopted to guarantee the protection of the civilians and military personnel who are no longer taking part in hostilities. The spirit of the provisions of the Conventions pushes us to adopt the four Conventions and to increase the protection for the Yemeni civilians, who are facing a humanitarian crisis because of the war. Indeed, if we cannot stop the existing war and the humanitarian crisis, we should at least increase the protection for the civilians and the military personnel and adopt the wide scope of the object and the purpose of the four Geneva Conventions. I’m advocating towards the implementation of the four Geneva Conventions and Additional protocols, as way to protect the nation from a full blown crisis.

http://mashable.com/2015/03/31/yemenis-say-enough-war/
IMAGE: HANI MOHAMMED/ASSOCIATED PRESS

Moreover, the fighters from the Houthi’s and the coalition should be considered combatants and if they are detained. In this case, the third Geneva Convention relative to the treatment of Prisoners of War (POW’s) should be adopted. I believe that the Yemeni situation is critical and has transformed from a Non-International Armed Conflict into an International Armed Conflict, where the four Geneva conventions should be applied along with their protections. Therefore given that the Yemen conflict has become an international armed conflict, the countries involved in the Saud-led coalition and the Houthi militias need to act according to International Humanitarian Law and respect the rules of law, particularly the protection of civilians and POW’s.

The legal framing of the Egyptian military intervention in Libya

I never thought I would be writing about an Egyptian military intervention into another country in my day and time, but the dramatic changes and developments in the armed conflict in Libya has posed the question of whether Egypt’s role in this situation was legal or not. At the same time, the question of which doctrine of the international law Egypt can use to justify the Airstrikes on Da’esh is raised – whether the self-defense and or protecting citizens abroad or assisting another state.

On 15 February 2015, a video was released showing images of 21 kidnapped Coptic Egyptians being killed by a militant group declaring their loyalty to ISIS or Da’esh. As a response to this video, which I don’t think is appropriate to share; the Egyptian president announced a week of mourning over the victims and called for an urgent meeting with the National Defense Council. A few hours after the meeting, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.6120938-3x2-940x627

These air strikes open the question again about the legality of the Egyptian Military intervention inside the Libyan territory especially after the different statements from the President Sisi and the Foreign Affairs Minister in UN Security Council meeting.

The historic background of the Libyan situation is significant in this context. Libya today has divided into a violent political struggle between two major powers: the internationally recognized, Tabruk parliament and Tripoli’s parliament. The Islamist groups cooperated with Misrata’s forces to stage a counterattack in Tripoli and occupy the capital. This forced the newly elected parliament into exile to Tabruk to be under the protection of general Haftar.

Alongside with this political struggle and declining situation, in June 2014, the jihadist group Majilis Shura Shabab Al-Islam (the Islamic Youth Shura Council) in Derna announced its allegiance to the Islamic State in Iraq and Syria (ISIS). A few months later, the organized militant group in Egypt, Ansar Beit Al-Maqdis, which continually attacked the governmental buildings and military bases, also announced its allegiance to ISIS and changed its name into Wilayet Sinai or the Sinai State. This link between the groups increases the suspicion of cooperation between the two groups and increases military operations against the Egyptian government and Army.

The use of language

A few hours, after the president Abd El-Fatah El-Sisi’s speech on the killing of 21 Christian Egyptian in Derna by militant group loyal to ISIS, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.

2015-635596428048984075-898The Egyptian citizens reacted to the video of the killings with significant anger and asked for revenge and reprisal attacks. During his speech president Sisi used the word “the right of response” to the killing of the Egyptians in Libya. Also, the ministry of Foreign affairs issued a statement after the airstrike stating that the airstrikes were under legitimate right of states of self-defense individually or collectively and its right to protect its citizens abroad. The linguistics used in both statements refers to framing the airstrikes towards the Egyptian citizens and protecting the citizens. The president statement directed to the citizens, and to settle down the anger of the citizens, but at the same time, statements like revenge or reprisal are not appropriate to be used in the international law context.

Therefore, framing the argument and defense of the attack through “the right of response” is to legitimate the illegitimate act.

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A few days later, the weakness of the doctrine of the right of response and the excuse of protecting of citizens abroad which had been used by the president and the ministry of foreign affairs was clear. The use of this doctrine in international law is rare and is not preferred. Therefore, during the UNSC urgent meeting in relation to the situation in Libya, the Foreign Affairs Minister instead commented on the Egyptian airstrike in Libya by using a different argument for the strikes, by stating “Egypt has decided to respond to the requests and needs of the Government of Libya and has provided military assistance”. The Foreign Affairs Minister’s statement framed the airstrikes as assisting the Libyan government in the war against terror after asking for help as part of consensual intervention, as the coordination and assistance of another country is not a violation against international law. Therefore, Egypt’s strikes over the Libyan territories were not in contradiction of the United Nations charter and customary international law. This new statement is directed to the international community, thus the language used must be the most appropriate to be accepted in doctrine and according to international law.

The word and framing used is important in international law and in strengthening the legitimacy of the Egyptian airstrikes in Libya. The justification of airstrikes based on the self-defense and/or protecting civilians abroad arguments or the right of response are weak in international law in comparison to the argument of the assistance of another country in the war against terrorism. The president used the phrase right of response to comment on the killing of Egyptians in Libya because he was directing the statement to Egyptian citizens while the Minister of Foreign Affairs could not use a weak legal argument in his speech to the international community justifying the airstrikes. Therefore, he used the argument of state requesting assistance of another state. The linguistics used by the president and foreign affairs minister differ because each one of them is talking to a different audience. Framing and language of law is just as important domestically as it is internationally.

Is the Principle of Negative Equality in Civil Wars Still Valid? An Analysis of “Decisive storm” Under the Law of Armed Conflict

http://www.bbc.com/news/world-middle-east-29293849
http://www.bbc.com/news/world-middle-east-29293849

Although the beginnings of the Arab Spring’s revolutions might seem similar, their evolutions are totally different; the Yemeni revolution is no exception. The situation in Yemen has recently evolved dramatically, leaving the state in a civil war. This leaves limited choices for the legitimate Yemeni president Hadi to seek foreign assistance. Based on the invitation by President Hadi, a Saudi Arabian-led coalition constituted of ten Arab states launched a military operation against the Houthi rebels known as “Decisive Storm”. Although the traditional “negative equality” doctrine of international law prohibits intervention in civil wars on either side of the parties, I argue in this post that there is no room for applying this principle in the Yemeni case for two reasons: first, I believe that the principle itself is no longer applicable in contemporary international law, second even if it is, the Yemeni case lacks the requirements for the application of this doctrine.

The principle of the prohibition of intervention in civil wars emerged in post Cold War era based on 1975 resolution of the Institute de Droit International (IDI), in an attempt to limit military interventions and the use of force by superpowers in internal conflicts and in order to guarantee self-determination. However, this previously mentioned resolution allows two exceptions, which are the provision of humanitarian aid in art (4) and the response to unlawful foreign intervention in art (5).

The principle of “negative equality” is no longer applicable

Recent state practice as analyzed by Dapo Akande & Zachary Vermeer here   breaks with the general rule of non-intervention in civil wars. This state practice indicates that third states can lawfully intervene alongside with governments with or without the latter’s consent in cases of terrorist attacks. Examples include the French intervention in Mali based on an invitation from the Malian president which was reflected under UN SC Resolution 2085 which affirmed that assisting Mail is based on respecting its sovereignty. Other  examples  are the US led coalition against ISIS in Iraq and Syria backed by the Iraqi president’s invitation and the US intervention in Afghanistan in 2001 with no condemnation from the international community.

This practice has been further developed in cases that fit with the magnitude of human tragedy to fall under a broader concept of R2P without any invitation. Examples include the intervention in Iraq known as “Desert fox operation in 1998, Kosovo in 1998, Georgia in 2008, Libya in 2011, and the recent intervention in Iraq to rescue the Yazidis in 2014.

The principle of negative equality does not apply in Yemen.

The principle of negative equality lacks the basis for application in the case of Yemen. First, tracing the history of the principle and the reasons behind it proves that it is driven by the necessity to limit intervention by superpowers in order to pave the way for exercising self-determination by the opposition when they seek it. In addition, according to IDI Res 1975, if a foreign state unlawfully intervenes with the rebels, it allows a third state to lawfully intervene alongside with the government. Finally, the effective control test might not be the sole test for deciding the legitimacy for presidents in contemporary international law.

Self-determination

 

http://events.tru.ca/event/2014/international-seminar-indigenous-self-determination

http://events.tru.ca/event/2014/international-seminar-indigenous-self-determination

The principle of non intervention in civil wars is a purpose–based norm that seeks to guarantee peoples the right to exercise self determination as expressed in the UN Human Rights Covenants of 1966 and in GA resolution 2625 (XXV). In the context of civil war, peoples should have the right to choose their own governments without interference by third states, which was clear in the articulation of Art 1(a) of IDI Res 1975. According to the language of the article that describes rebels as “insurgent movements”, those rebels should be seeking self determination and to be supported by a significant part of the population, which was affirmed by M. Dietrich Schindler in his interim report presented at the IDI session in Rome in 1973:[1]

“..assistance to the established government in case of civil wars … is illegal … when the insurgents, without having received any substantial assistance from abroad, succeed in establishing their control over a significant part of the territory and are supported by a large part of the population” (translated from French, emphasis added).

In addition, Georg Nolte and Doswald-Beck argue that third state intervention, even by consent, is unlawful if it is against the expressed will of a significant part of the population such as in uprisings which meet the requirements of the right to self-determination. By applying these criteria to the Houthis, although that they have effective control over a significant part of the territory, they are not supported by a significant part of the Yemeni population which does not represent an exercise of self-determination. To illustrate, although the religious sect (Zaydi) which most the Houthis are affiliated to, represent about one third of the Yemeni population, not all the Zaydis are supporting the Hountis.

Counter- intervention

http://www.islamicinvitationturkey.com/wp-content/uploads/2011/11/Irans-military-drill.jpg
http://www.islamicinvitationturkey.com/wp-content/uploads/2011/11/Irans-military-drill.jpg

 

One of the exceptions to the non-intervention in civil wars principle is the case of counter intervention as expressed in Art(5) of IDI Res 1975. To illustrate, if a foreign state intervenes on the side of the rebels in any of the ways expressed by the resolution which vary from military to financial to economic support, this gives third states the right to intervene on the side of the government. Therefore, the Iranian arming of the Houthis is considered unlawful intervention according to the ICJ judgment in Nicragua Case where the court considered arming the rebels as unlawful intervention. In addition, according to Hojatoleslam(a Shiite clerical rank just below that of Ayatollah and a representative of Supreme Leader Ayatollah Ali Khamenei to the Iranian Revolutionary Guard Corps (IRGC)), Yemen has become an area of their territorial hegemony, which was later affirmed by Ali Akbar Velayati, the foreign affairs adviser to Khamenei(and was further analyzed by Aliaa Makady here in this blog). In addition, there is a Yemeni evidence- based claim affirmed by Reuter’s investigations of the Iranian support to the Houthis with no official declared denial from Iran. Therefore, this triggers the lawful right of the Yemeni government to seek assistance from third states, which is what happened in the “Decisive Storm” operation by the Saudi Arabian led coalition.

Invitation by the president

After the adoption of the United Nations Charter, there has been a debate concerning the legality of intervention by invitation. Christine Gray, argues in her book “International Law and the Use of Force” that consent by the government does not legalize state intervention in a civil war with two exceptions either UNSC authorization or a counter intervention.On the other hand, Yoram Dinstein’s argument is that state practice, such as the French intervention in Mali or US airstrikes against ISIS in Iraq and Syria proves that consent by the government may legalize intervention. This position was affirmed by ICJ in the Nicaragua Case:

“…it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition.”

Furthermore, there has been a debate over the existence of “effective control” standard over Yemen by the president Hadi in order to determine his capacity to consent for intervention. State practice shows that this standard is not always decisive; there are some cases in which the international community disregarded territorial effectiveness and replaced it with accepting the internationally recognized governments, such as Somalia and Libya.

To sum up, the situation in Yemen reached the edge of a civil war and the threshold of a human tragedy. However, there is no room for applying the principle of non- intervention in civil wars because state practice in the contemporary international law showed that it is no longer applicable. Second, even if we were to assume that this principle is still valid, there are three reasons to disqualify its application in the case of Yemen: first the “Decisive Storm” operation falls under a counter-intervention in response to Iran’s prior intervention on the side of the Houthi rebels. Second, the Houthis lack support by the Yemeni people, so there is no room for a claim of self determination, and finally, the effective control standard is no more the sole determinant of the legitimacy of presidents in having the capacity to consent to foreign interventions.

[1]IDI Year book, 468, 1973.