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.

Egypt’s Military Assistance to the Libyan Government: Legal or not?!

download In the midst of the chaos of the Arab Spring, there have been multiple uses of military force in the internal conflicts by third state parties. Some of these interventions raise questions about their legality according to the international law on the use of force. According to the traditional doctrine in international law, there are only two exceptions to the ban of threat or use of force between states. The first of these two exceptions is the collective use of force by the willing state members according to article 42 of the U.N. Charter in chapter VII, which is under the measures taken by the Security Council. The second exception is the inherent right of self defense according to article 51 of the U.N. Charter. Nowadays, it seems that this classical restrictive view is changing, as there is a third exception on the rise among state practice and supported by the I.C.J jurisprudence. This exception is related to the foreign military intervention by the invitation or consent of the government. It is usually referred to by international lawyers and legal scholars as intervention by invitation. The problem with this new practice is the case of civil war, which raises the question of which government has the authority to consent. There is also the question of the threshold that classifies internal conflicts into civil war and whether or not intervention is allowed in civil wars even with the consent of one of the parties.

-The argument of Consensual Intervention was used by the Egyptian government to justify the air strikes against ISIS militia in Libya. While it is clear that these strikes were a reprisal for the horrific murder of the 21 Egyptian Copts, the use of this argument was necessary due to the lack of legal justification for acts of reprisal against terrorism in international law. One of the bases of the Consensual Intervention argument is article 3 (e) of the G.A. Resolution 3314 on the definition of aggression which construes the following as an act of aggression: “The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement .” This clarifies that the uses of armed forces in that case which do not contradict the agreement with the receiving state are legal. Further support for this argument is found in article 20 of the ILC Articles on State Responsibility which states: “Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”

-The problem is, when there are internal armed conflicts, which of the parties has the capacity to give consent? Or does the consent of any of the parties hold any legal value in the first place? Eliav Lieblich in his paper, “Intervention in Civil Wars; Intervention and Consent” discusses these issues. He argues against the traditional view that rejects foreign military intervention during internal armed conflict. According to this view there should be no intervention during internal armed conflicts as all parties to the conflict have lost their capacity to represent the state and therefore do not have the capacity to give consent to foreign military intervention. Lieblich’s article describes how the I.C.J adopts the view that when the intervention is in favor of the government, it is not unlawful. The I.C.J ruling in the Nicaragua Case clarified the court’s opinion supporting the legality of intervention in favor of the government as it stated:

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. This would permit any State to intervene at any moment in the internal affairs of another State, whether at the request of the government or at the request of its opposition. Such a situation does not in the Court’s view correspond to the present state of international law. 

This has also been reaffirmed by in the court’s ruling in the D.R.C v. Uganda case.

-In the case of the Egyptian air strikes in Libya, there seems to be a new lenient doctrine being adopted by the international community. This new doctrine is largely a result of the ongoing ‘War on Terror’. In Libya there are supposedly two governments plus the ISIS militia groups. The one which is mostly recognized by the international community is the government of Haftar, which is the one that supposedly requested or consented to the Egyptian air strikes. This government does not actually possess effective control over the whole Libyan territory, but the other groups controlling the rest of Libya’s territory are either terrorist groups themselves, like ISIS, or affiliated with terrorist activities. For that reason the whole effective control principle is being abandoned.

-Although this new state practice might be helpful in fighting a rogue terrorist organization, it also opens the way for the misuse of force and intervention in the internal affairs of sovereign states in future situations. This is especially true when there are interests to powerful states recognizing one of the parties to an internal armed conflict in order to be able to take forcible measures. This could also lead to bigger armed conflicts when there is a conflict of interests between powerful states each recognizing one of the parties, replaying Cold War scenarios.

-The Egyptian air strikes in Libya clarify a growing problem with international law. The problem is that the international community needs to further democratize its institutions to cure its ineffectiveness while facing the growing threats to international peace and security. The unilateral use of force should still be an exception, but with the uselessness of attempting to resort to collective measures of the Security Council, unilateral use of force could transform into the norm, which destroys the whole purpose of the United Nations in trying to preserve peace and security in the world.