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.

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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.

Operation ‘Decisive Storm’: Between Collective Self-Defense and Legal Ambiguity

The Yemeni conflict is taking headline news. It’s not that Yemen is usually considered peaceful. On the contrary, Yemen has long been plagued by a series of conflicts, natural disasters, political changes, unification and separation movements, more than most countries. However, even while being the Gulf Cooperation Council (GCC’s) troubled child, it came as a surprise to many when 10 countries declared war on Yemen, lead by Saudi Arabia(KSA). Understanding the Yemeni conflict is far more complicated than this blog post would allow me to explain. However, what is important to understand is that Iranian-backed Houthi rebels attacked and took over the country from KSA backed President Hadi, and KSA and the ‘Decisive Storm’ coalition maintain that their involvement to right the wrong done by the Houthies is lawful under international law.

Al-Arabiya news Collective and IndividualSelf-defense

Saudi Arabia has been very clear about the fact that this military action has an element of self-defense. The Gulf Cooperation Council recognized that the heavy artilleries military drill, conducted by the Houthi rebels on Thursday, 12 March on the Saudi-Yemeni borders was hostile behavior. Both the timing and the method of those drills are seriously called into question. From a legal standpoint, the argument in favor of Saudi Arabia would claim that the actions of the Houthies were a threat of use of force, which, according to UNGA resolution 2625, such a threat “violate the existing international boundaries of another state”. Those “drills” came with Saudi claims that Houthies have attacked their army before on the borders according to Reuters. Under such circumstances, Saudi Arabia can claim their inherent right of self defence under article 51 of the UN charter. The biggest flaw of the Saudi directed argument is that according to both Saudi Arabia and the international community, the Houthi rebels are an illegitimate militia, and hence, do not act on behalf of the state. Although article 51 does not specify that an armed attack needs to occur by a state, UNGA resolution 2625 assumes that a state would be the entity, which “threatens” the use of force, not an armed group. Hence that claim standing on its own does not provide enough ground for Saudi Arabia alone striking in Yemen. However, this is only the beginning of the justification.

The main threat is Iran’s involvement in the conflict. Iran unlawfully arms the Houthi rebels in Yemen, as well as support them ideologically. This is illegal, as arming and controlling a militia inside a country is considered infringing on state sovereignty, but Iran is not particularly shy about it. High religious clerks have been openly declaring that Yemen is within their sphere of influence. Houthi militias, on that note, progressed into Yemen, increasing their territorial control. Iran’s actions violate international law on many different aspects. First, arming paramilitary activities in another state, especially for the purpose of extending their political influence, violates any bases of friendly relations proposed in UNGA resolution 2625. Secondly, extending military aid to a certain militia for a specific political (or any other) reason is considered an act of aggression, according to the UN’s Definition of Aggression (Res. 3314, art. 3(g) & art. 5.1). Lastly, in the International Court of Justice case on Nicaragua, it was decided by the judges that the United States was violating international law “by training, arming, equipping, financing and supplying…or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State”. This was seen as grounds for collective security; as such intervention in Yemen by Iran was considered a threat to the peace and security of the entire region due to Yemen’s geographical position.

The response came swiftly from Saudi Arabia. In a collective response, Operation ‘Decisive Storm’ witnessed perhaps the strongest Middle Eastern coalition of forces in history. Ten countries mobilized to strike strategic regions in Yemen. Also, Egyptian maritime forces were sent to protect the Gulf of Aden from any threat of closure from Iran and Houthies. The Arab League Heads of State summit, which followed, cemented the principal of collective self-defense by agreeing to create a “joint Arab military force”.

Operation Decisive Storm is being advertised as the last solution to a draining conflict in Yemen. The Gulf Cooperation Council has sponsored the Yemeni issue since 2011, starting many “initiatives”, which have ended in very little success because Yemeni factions continue to fight. More importantly, with the Houthi rebel’s swift accumulation of power on the ground, Saudi Arabia depicted Houthies as a threat to regional and international peace and security, after they became so close to controlling the Gulf of Aden. Additionally, operation ‘Decisive storm’ arguably took place when the threat was imminent, leaving no time for deliberation. It was also necessary as there were no peaceful means to solve this conflict, hence, following the US rhetoric on the preemptive use of force. The biggest problem with such a claim is that the Security Council did not get involved, let alone authorize the use of force in Yemen. This did not rally much criticism towards Saudi Arabia, even though there is a draft resolution being proposed in the Security Council on the conflict in Yemen with the Russian Federation holding a humanitarian stance, rather than a legal one, against the strike.

In both cases, however, there has not been a direct attack on either Saudi Arabia or other countries. However, the issue is being presented as though the Yemeni-Iranian attack is imminent. Under those circumstances, this is a pre-emptive self-defense, and the legal literature behind the legality of such attacks is covered intensely over the Iraq war of 2003. Even if such an attack is legitimate, is the response from Saudi Arabia a proportionate and deterrent response? It is far too early to constructively build an argument either for or against the Saudi-led attacks.

Intervention at the request of the legitimate president

It seems that this has been the new method by which countries justify intervention lately Saudi Press agencyin order to adhere to international law, and you cannot blame them. Intervention based on the request of the president or ruler of one state to suppress non-state rebel groups is perfectly legal under international law. In fact, countries like Egypt, and even Russia went though great lengths to confirm that the use of force in Libya and Crimea, respectively, were justifiable based on the presidents’ or legitimate rulers’ request.

The “legitimate” president of Yemen, Abdrubbuh Mansour Hadi, who has resigned when surrounded by Houthi rebels then retracted his resignation when he walked free, looked surprisingly elated upon reaching Saudi Arabia, after spending a few days in hiding. Firstly, there are question marks over his legitimacy as the president of Yemen, as he first resigned in January 2015, when Houthi rebels took over Sanaa, the main capital. He later rescinded the resignation, stating that he took this step under pressure from the rebels however this was prior to his request from the international community to intervene. Secondly, the level of conflict that was occurring prior to the Operation Decisive Storm was dire, to say the least, as expressed in the UN Security Council Resolution 2204 on Yemen, with multiple “terrorist” and paramilitary entities gaining effective control of major parts of the country. President Hadi’s decision to request intervention as he leaves Yemen for Saudi Arabia questions his control and influence over Yemen in the first place. Lastly, with President Hadi having little control over his country, is the situation in Yemen a civil war gone international? Nevertheless, Hadi further reiterated his request at the Arab League Heads of State Council in Sharm el-Sheikh, Egypt, last Saturday.

To conclude, it is important to understand that the Saudi/Arab Coalition involvement in Yemen is fairly recent. The legal questioning, let alone the justifications, have not been drawn out yet. It is, however, important to question the legality of the collective self-defense mission in Yemen, against the proxy-Iranian militia, with a political motive, under an ideological shroud. Additionally, the different interpretations, which will be given to this collective self-defense action versus the western-led ones, would be an interesting issue to observe. Finally, it is important to note that civilian casualties do occur, and hence, the humanitarian legal aspect should always play a part when assessing the success or failure of the operation.