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.

Critiquing Humanitarian intervention in Libya

In 2011, Libya became one of the countries that were quickly impacted by the Arab Spring. Yet, it has been going through a different path than its neighbours Egypt and Tunisia that have largely succeeded in their revolutions. As a result of the dire humanitarian situation in Libya in 2011, the UN Security Council decided to implement multilateral humanitarian military intervention.

Before the application of humanitarian intervention, one has to make detailed calculations and evaluation of the necessity of intervention. The legality of humanitarian intervention is a complex question: does sovereignty rule out intervention in order not to breach territorial integrity? Or does the international community have the responsibility to avoid gross and systematic human rights violations? Regarding sovereignty, “the legal rub of humanitarian intervention is the United Nations Charter, the foundational document of international law whose core principles are sovereignty and non-intervention” (Cronogue, 129).

The implementation of humanitarian intervention in Libya was arguably based on the prominent model of: the Responsibility to Protect (R2P) doctrine. It is argued that “the concept of R2P consists of three elements: the responsibility to prevent a population from suffering serious harm, the responsibility to react if such harm occurs, and the responsibility to rebuild after an intervention” (Gowers, 597). The R2P implies a collective international responsibility “exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing and serious violations of humanitarian law which sovereign governments have proved powerless or unwilling to prevent” (Background Information on the Responsibility to protect, United Nations). “President Barack Obama—along with NATO—claimed that military action was necessary in order to prevent a bloodbath in Benghazi, where Qaddafi’s forces had surrounded a defenseless population” (Gillin, Libya Is Yet Another Reason to Be Wary of Humanitarian Interventions). However, the intervention implied the overthrowing of the leader Qaddafi who targeted civilian protesters, yet, the overthrowing of a government is not legally justified under international law, but is rather considered political. The timing was ideal to exercise humanitarian intervention as “leaders in the Middle East were still reeling from the Arab Spring” (Patrick, Libya and the future of Humanitarian intervention). The Libyan case was illustrated as “a textbook illustration justifying R2P principles, but its implementation also demonstrated the need for legitimacy criteria to guide decisions on authorizing and overseeing international military intervention” (Thakur, 61).

Libya has been perceived as a “failed” state that lacks the ability to protect its own citizens. Since Libya is considered as a “failed” state, the responsibility is seen to be extended to the international community. Although, the use of force in “failed” states is very debatable, humanitarian intervention seems to have been the first option in Libya. Therefore, the Security Council issued Resolution 1970 (2011), which underscored “the gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government” (Resolution 1970). It is also added in the Resolution 1970 that “the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity” (Resolution 1970). The Resolution stressed the significant responsibility of the Libyan authorities to protect and respect its population. The Security Council accompanied Resolution 1970 with the Resolution 1973 that permitted Member States to legitimately take “all necessary measures” in carrying out humanitarian intervention in protecting civilians (Resolution 1973).

Humanitarian interventions are very expensive and their consequences cannot be predicted.  However, humanitarian intervention is a significant instrument that is “claimed” to protect people and punish perpetrators of human rights violations. Humanitarian intervention does not seem to be a “pure tool” that aims to really save lives as it is highlighted that “the United States will remain selective about humanitarian intervention, because it must balance the goal of preventing suffering with other interests and commitments” (Patrick, ‘Libya and the future of Humanitarian intervention’). Actually, the United States always used the arguments of establishing democracy and eliminating human rights violations as a basis for humanitarian intervention. In the case of Libya, it seems that economic interests, more specifically oil reserves were the real interests of the United States. This intervention is reminiscent of the Iraq war in 2003. Moreover, the geographical location of Libya makes it strategically beneficial in the sense that it allows access to Africa.

The United Nations has justified multilateral, UN-authorized humanitarian intervention according to Article 39 of the UN Charter, which states that “the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”. Because this Article is broad and vague, the UN Charter does not contain any clear conditions for collective action. Nonetheless, it has been argued that humanitarian intervention goes against Article 2 (4) of the UN Charter, which stipulates that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. Furthermore, the UN Charter underlines in Article 2 (7) that: “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter”. However, when the situation reaches a perceived “high peak”, the Security Council gives itself the power to employ the humanitarian intervention with the use of Article 39.

The humanitarian intervention in Libya did in fact create a new “failed state”. The humanitarian intervention strategy was actually proven in the Libyan case as a total failure. The presence of a two rival governments makes the position of the country weaker. The existence and role of the militias including some Islamist extremists and ISIS over the country weakens the economic situation due to the constant contest over oil revenues. The creation of these Islamist extremists was the outcome of the continuous sustainment by the West aiming to succeed in the process of regime change. Security cannot be established due to absence of an army and an undrafted constitution. The intervention did not imply any kind of a process of active rebuilding aiming to put Libya on its feet. It is questionable whether the Libyan intervention was really an intervention to protect the population or rather another strategy to remove a political leader who constantly went against the West on the political, social and economic levels. The NATO intervention has succeeded in showing that it was a failure due to the presence of violence after the action. This could be seen with the increased number of deaths and human rights violations. R2P in the Libyan case did not include any kind of protection but rather a kind of violence and humiliation of civilians. Violence has spread all over the country. Saving lives is simply a justification to attack one nation’s territory and breach its sovereignty.

Humanitarian interventions are simply “lies”. They can never be trusted due to the constant hidden goals. Humanitarian interventions cannot function because they produce more negative consequences than good ones and this could clearly be seen in the Libyan case as mentioned above. There is no “pure” behavior of a humanitarian intervention. One has to mention the tremendous influence and control of the United States (U.S) over NATO’s actions. The U.S under NATO’s umbrella looks for its own benefits by trying to act as the “saviors”. Moreover, the humanitarian intervention does not offer any solutions. In other words, the intervention does not try to solve the causes of the conflict or deal with its consequences. If humanitarian intervention in Libya was really “pure”, then the employment of military action was not required. The fact that the use of force was included in the intervention breaches the whole aim and purpose of intervention as it continuously violates human rights.