The United Nations has termed the humanitarian crisis in Yemen as the worst of all times. Thousands of non-combatants have died during this conflict while thousands more are on the verge of death due to shortage of food, basic facilities, and diseases. Many people have been forced to migrate internally and externally, and there are reports of children are being used as soldiers. Multiple experts have stated that Saudi Arabia has violated International Humanitarian Law (IHL) in Yemen. The Saudi-led coalition intervened in Yemen at the request of the UN-recognized Hadi’s government; the resulting Saudi air strikes are believed to have led to many civilian causalities. This paper attempts to determine the nature of the conflict, discusses the articles of law that are applicable, and examines whether Saudi Arabia is in violation of International Humanitarian Law (IHL) in Yemen.
The government of Yemen and, a Shia group, the Houthi or Ansar Allah have been battling for power since 2004. The Houthi group was founded in 1990 with an ambition to form a government and reduce Saudi Arabia’s influence in Yemen. Saudi Arabia attempted to extend its Salafi ideology in Yemen, while Houthis are Shias and countering this influence; this was one of the reasons for the establishment of this group. In the early 2000s, President Ali Abdullah Saleh ordered the arrest of members of the Houthi group due to which tensions escalated. This was the starting point of the Yemen conflict as the Houthi rebellion began after this incident. Until 2011, many ups and downs in the relationship between the Houthis and the government were observed to have taken place. Subsequently, the Arab Spring changed the dynamics of Yemen in 2011 as many protests broke out against the Saleh government. The Houthis took advantage of the situation and gained strength. Many demonstrations took place in various Yemeni cities in 2011. The government used force against the protestors, resulting in the deaths of hundreds of people. Clashes in the capital city, Sanaa, also erupted when President Saleh refused to resign. He was seriously injured in a bombing and after his recovery, he resigned from the presidency; his deputy, Abdrabbuh Mansur Hadi was elected as president in 2012.
During President Hadi’s two-year term, Yemen faced instability due to protests in Houthi-dominated areas. In 2014, the Houthi group took control of most of Sanaa. A UN-brokered peace agreement between both parties lasted only for a few months and later, the Houthis took over the entire Yemeni capital. They also took control of the presidential palace and forced President Hadi to resign. At this point, military equipment went under the control of the Houthis; President Hadi moved to Aden and temporarily declared it as the capital city. When the situation continued to worsen, Hadi asked for the Kingdom of Saudi Arabia’s (KSA) forceful intervention.
On 26th March 2015, a KSA-led coalition launched an intervention in Yemen. While composed of nine states, the primary role belonged to Saudi Arabia and United Arab Emirates (UAE), the former having played the main part in air strikes and ground operations in Marib. It also imposed a blockade in tandem with the execution of air strikes. In April 2022, Mansur Hadi resigned from his presidency and transferred powers to the newly created presidential council, which consists of eight political leaders.
The Legality of the Saudi Intervention
The Saudi-led intervention was justified by UNSC resolutions 2140 and 2216, which state that President Hadi’s government is the only legitimate government and that the Houthis must return all seized areas and equipment to it. The use of force against other states is prohibited by the United Nations unless done in self-defense or with the authorization of the UNSC. The legitimate government headed by President Hadi had officially invited Saudi Arabia to use force in order to restore peace and order, providing legal grounds for the intervention in Yemen.
Nature of Armed Conflict in Yemen
Under International Humanitarian Law, international armed conflict involves conflict between two or more states, while non-international conflict is between one or more states and one or more groups of armed non-state actors. Also, a single conflict can be termed as an international as well as a non-international armed conflict at the same time.
A conflict can be termed as a non-international armed conflict keeping in view the intensity of hostilities and organization of parties. The intensity of hostilities can be assessed by indicators such as weaponry used, the number of civilians fleeing the conflict areas, destruction and more. The organization of parties is also assessed through certain indicators, including command mechanism, territory controlled by the group, recruitment and training process, and access to weaponry. The conflict in Yemen can be termed as a non-international armed conflict as per common article 3 of the Geneva Conventions.
Applicable Laws on the Role of Saudi Arabia in the Yemen Conflict
The most important treaty law that is applicable in the Yemen conflict is common article 3 of the Geneva Conventions and the Additional Protocol II of the 1977 Geneva Conventions, as both specifically talk about non-international armed conflict. Common Article 3 is concerned with the protection of the civilian population and people that are no longer part of hostilities, while Additional Protocol II has 28 articles that are specifically applicable to non-international armed conflict. Apart from these treaty laws, customary international humanitarian law also applies in context to the Yemen conflict.
Violations of International Humanitarian Law (IHL) in Yemen
Experts who have assessed the events and operations conducted by Saudi Arabia in Yemen have concluded that the former is in violation of IHL in the latter. Since the beginning of the conflict, Saudi Arabia has conducted more than twenty thousand airstrikes which have resulted in the deaths of over seventeen thousand civilians. It is reported that Saudi Arabia deliberately hits civilian targets including hospitals, schools, mosques, buses, factories, and detention centers. Such acts demonstrate that Saudi Arabia is in violation of IHL including Additional Protocol II, Customary IHL and common article 3 of Geneva Conventions.
Geneva Conventions Violation
Common Article 3
Common article 3 of the four Geneva Conventions specifically talks about non-international armed conflict. It focuses on the humane treatment of all hostages and treatment of the wounded being cared for. It also prohibits enforced disappearances and torture, and states that people who are not participating in conflict must not be harmed in any way. This common article 3 of the Geneva Conventions alone is not enough for non-international armed conflicts, which is the reason that later Additional Protocol II was also introduced for conflicts involving non-state actors.
Reports suggest that Saudi Arabia is involved in enforced disappearances and the torture of Yemenis in Yemen’s Eastern Governorate al-Mahrah. Allegedly, civilians who are not part of conflict are subject to enforced disappearances and torture for peacefully protesting against the presence of foreign forces. All these instances indicate that KSA is violating common article 3.
Additional Protocol II (1977)
The additional protocol II has twenty-eight articles. Saudi Arabia’s actions in Yemen violate Additional Protocol II as it has been involved in airstrikes without keeping in view the civilian population. Article 4 of Additional Protocol II is being violated by Saudi Arabia which prohibits violence to life, health, and mental health. Article 13 also prohibits the killing of non-combatants, but the Saudi air campaigns in Yemen have resulted in civilian casualties. Article 11 gives security to medical staff and hospitals; Saudi Arabia’s targeting of hospitals violates this article. Article 16 says not to hit historic places and religious sites during the conflict, and reports suggest that Saudi Arabia has targeted mosques as well. Article 5 says to not restrict the liberty of the population; Saudi Arabia has detained and arrested Yemenis protesting against its role in the conflict. Saudi Arabia has also been involved in the forced displacement of people in Yemen which violates Article 17 of Additional Protocol II. Article 14 gives security to infrastructure which are responsible for the production of food and related matter important for survival, but reports suggest that Saudi Arabia has hit factories and food storage facilities in Yemen.
Violation of Customary IHL
Principle of Proportionality
The Principle of Proportionality says that military gains achieved in any operation must be greater than the harm that is being caused due to it. It is part of the customary IHL, and it means that a military operation must not be conducted if the loss is more than the military gains. On many occasions, Saudi Arabia conducted air strikes due to which civilians died, without gaining any major military objectives. On 30th March 2015, Saudi Arabia conducted an air strike on a camp in which displaced people were living and it resulted in the loss of around 25 civilian lives while injuring over 200 people. The strike was conducted on the Al-Mazraq camp in Yemen. There are number of other air strikes conducted by the Saudi air force which achieved little military objectives while the harm caused was greater.
Principle of Distinction
This principle states that the parties which are involved in the conflict must distinguish between combatants and non-combatants. It also states that civilian objects and military targets must be clearly identified, while the operations must only be directed toward military targets. Sites like schools, hospitals and other civilian buildings must not be targeted in any way.
Saudi Arabia has violated this Customary IHL by hitting civilian targets including hospitals, schools, buses, and other civilian buildings. For instance, on 24th July 2015, Saudi Arabia conducted an airstrike targeting a civilian residential compound, that resulted in the deaths of over a hundred people. Till now, Saudi Arabia has conducted more than twenty thousand air strikes, most of which have resulted in deaths of non-combatants in Yemen.
Principle of Precaution
According to this principle, parties to the conflict must ensure that civilians are taken care of during the conflict. If there is a slight chance that civilians would be hurt in an operation then the parties should consider tactical restraint. Also, before conducting the operation, a warning should be issued to civilians so they can leave the target area in order to avoid civilian casualties. This principle also prohibits the use of chemical weapons, and cluster bombs during a conflict.
Saudi Arabia has used cluster bombs against rebels in Yemen. As per this customary IHL, the use of chemical weapons and cluster bombs is not allowed in any way but in 2016, the government of Saudi Arabia admitted that it had used cluster bombs, supplied to it by the UK government, against Houthi rebels. Also, Saudi Arabia conducts air campaigns without any tactical restraint.
The United Nations Charter does not allow the blockade of any country, a measure Saudi Arabia has taken against Yemen. This blockade has resulted in a shortage of food items and prevented fuel from reaching Yemen. This has made the crisis even worse, as fuel is needed in order to run generators in hospitals full of the wounded.
Impact of Infrastructural Destruction and Blockade on Yemeni Children
Yemen being the poorest country in the Middle East, relies heavily on imported food, oil, medicines, and other essential commodities but the air, land and sea blockade imposed by coalition forces has left the Yemeni population devastated. Reportedly, even after the ceasefire between both sides, Saudi Arabia continues to seize the ships that contained fuel. The blockade has caused shortage of necessary supplies including drinkable water, leading to rise in diseases among children. Over 45% of Yemen’s population is under 15 years of age and it is estimated that over 13 million children are suffering directly or indirectly as a result of blockade and infrastructure destruction. More than ten thousand children have been killed, over two million had to migrate internally and around two million are out of school.
UN Probe on War Crimes
In September 2017, the United Nations Human Rights Council (UNHRC) adopted a resolution to investigate possible war crimes in Yemen. Initially, Canada and some European countries pushed for a full commission to examine war crimes committed by both the parties in Yemen. However, Saudi Arabia, the UK and France objected a full commission request, so the UN formed a team of three experts to document war crimes. In October 2021, UNHRC members rejected the draft resolution stating that independent investigators must be given an additional two years to document war crimes in Yemen. Twenty-one countries voted against the resolution and eighteen voted in favor. It is important to note that since its foundation, this is the first instant of the UNHRC rejecting a draft resolution. Previously, the investigators had reported that war crimes were being committed by both the parties in Yemen.
Saudi Arabia has always been critical of the war crimes investigation in Yemen and experts are of the view that the UN probe ended due to the strong lobbying of KSA. However, some scholars take this development as a positive one and believe that at this time it is important to find a peaceful solution to this crisis instead of pointing fingers. Apparently, KSA has been unsuccessful in limiting the Houthis and the Iranian influence in Yemen has grown over the years. However, it is unlikely that Saudi Arabia will disengage from Yemen empty handed as it would question KSA’s reliability. Although, the Houthis and coalition forces coordinated a ceasefire in April 2022, it is unlikely to continue for long; and the rejection of a probe on war crimes may lead to KSA’s further intense operations to defeat the Ansar Allah. This scenario might lead to more destruction and civilian casualties.
Yemen had seen resistance even before the Arab Spring, but the latter ignited the already existing problems and led to a civil war. Later, pursuant to the Yemeni government’s invitation, Saudi Arabia became actively involved in the conflict and is in continuous violation of treaty laws as well as customary IHL. Customary IHL, additional protocol II, and common articles of the four Geneva conventions apply to this conflict. The KSA’s deliberate targeting of civilians, hospitals, mosques, factories, and soft targets place it in clear violation of IHL. Presently, both sides in Yemen have extended the truce that has been in place since April 2022. Owing to the ceasefire, limited commercial flights have been resumed from Sanaa, while a few fuel and aid ships have also been allowed to enter Yemen. The temporary ceasefire has slightly reduced the sufferings of Yemeni people, but the truce is no end in itself. This truce may not last long as it is far more advantageous to the Houthis than the government and coalition forces. The Houthi rebels are expanding and strengthening their military positions while at the same time recruiting new people. Owing to the rejection of the draft resolution to investigate war crimes in Yemen, Saudi Arabia is likely to take more aggressive steps if the ceasefire ends in October this year. Additionally, the perception that international institutions are quite unsuccessful when it comes to IHL has strengthened after rejection of the resolution to probe war crimes in Yemen and this may have set a precedence for other such conflicts.
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