Jonathan Belasco
Professor Amirkhizi
International Law Pol Sci 172 A
12 June 2018
Yemen Memo
RE: Independent Commission on the Conflict in Yemen
Summary of Facts:
Yemen and the Yemeni people are stuck in a state of instability and are left with what is being considered as the world’s worst humanitarian crisis as there have been 16,000 injured or killed, 22 million in need of assistance, 8 million at risk of falling victim to famine and a cholera outbreak that has affected over 8 million people. Beyond that the instability has left up to 2 million people displaced due to the destruction of the nation. This is a huge crisis that has been prolonged since its start in 2014 when Houthi insurgents rose up against the Yemen government and took control of Sana’a the capital of Yemen. These are just some figures to paint a picture of the pain and suffering that civilians in Yemen have been dealing with for the past four years and we as an international body need to reach a conclusion to end this atrocity that has ravished the region and reintroduce stability to the region.
Due to the instability in the region, the United States and Saudi Arabia as well as other Arab states have created a coalition in fighting the Houthi rebels in their tracks and support the legitimized Yemeni government. This coalition formed at the request of the Hadi government and began with the Saudi control of the airspace and airstrikes to hinder Houthi advancement. Actions of the United States includes but is not limited to the refueling of aircraft, logistics and intelligence highlighted by the pentagon claiming to not be a party in the conflict. There have been some combat practices from the US such as air strikes.
Currently there is conflict over the port city of Hudaydah, a critical port held under Huthi control that is responsible for about 70% of Yemen’s imports that is meant as a starting point to take Yemen back but puts almost 250,000 lives at risk as the Saudi Coalition will be fighting on behalf of the Yemen government with ground attacks.
It is in the best interest of the UN to act on behalf of the Yemeni people and ensure a path to peace and a resolution to this conflict holding all parties involved accountable for their actions. The involvement of the two parties, the US and Saudi Arabia raises the question if their actions are justified under the Humanitarian Intervention principle and if any of their actions constitute war crimes. This is a very contentious issue that is being debated by the governments of both nations and is an issue taken up with the UN and should be presented during the 73rd session of the United Nations General Assembly.
Review of Applicable International Law:
For there to be a sound debate to whether the United States and Saudi Arabia are acting properly under the Humanitarian Principle, we must analyze the relevant laws, conventions and statutes that are already in place to assess the actions of these nations in times of crisis such as this one. With that being said we will analyze Common Article 3 of the Geneva Convention, The UN Charter Article 2(4), and various other resolutions made by the UN including Resolution 2216, 2204,2266, and 2342. We will also try to justify the actions made by including the analysis of Article 38 of the Statute of the International Court of Justice as well as protocols I and II of 1977 and the additional protocol of 2005. Using these institutions, we will be able to assess if these two nations are acting in accordance of International law and whether any of their actions constitute war crimes.
Common Article 3 of the Geneva Convention
The purpose of Common Article 3 of the Geneva Convention is curated to set forth the rules that apply in times of armed conflict and seek to protect people who are not taking any part in the hostilities. The full text of the statute is found below explaining its intention in terms of both international and non-international armed conflicts. This is the bedrock of international humanitarian intervention and will be used to justify intervention.
“In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(2) The wounded and sick shall be collected and cared for.”( United States, Congress)
From this the standard is set as to who is protected in the time of conflict and any target of these parties is a violation of the convention and the actors involved in the conflict will be held responsible.
United Nations Charter Article 2(4)
The carter of the United Nations sets the expectations of each member state and how they are to conduct themselves on the international stage and how they are to handle affairs around the world as well as conflict that may arise. Article 2 subsection 4 details how member states should act.
The article states 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.”( United States, Congress)
From this we are shown that members of the UN are to refrain from involving themselves in conflict that serves as the antithesis of the overall mission of the UN. This is expected to be followed by all members of the UN and any shift from these values can result in consequences and sanctions imposed on these member states.
UN resolution 2216, 2204,2266, and 2342
These resolutions made by the UN directly handle the situation at hand with the Yemen conflict and details the mission of the UN to resolve this conflict with the best interests of the Yemen people and the peace of the region and world. This is an important resolution as it stands with the Yemeni people and how the region can reach long term peace and stability. This includes what is expected of the Houthi rebels to abide by the standards set, as well as the Arab coalition that is heavily involved and influencing the progression of the conflict. The resolution in text proclaims,
“ Condemning the growing number of and scale of the attacks by Al-Qaida in the Arabian Peninsula (AQAP),” …” Reaffirming its support for the legitimacy of the President of Yemen, Abdo Rabbo Mansour Hadi, and reiterating its call to all parties and Member States to refrain from taking any actions that undermine the unity, sovereignty, independence and territorial integrity of Yemen, and the legitimacy of the President of Yemen,
Recalling that arbitrary denial of humanitarian access and depriving civilians of objects indispensable to their survival, including willfully impeding relief supply and access, may constitute a violation of international humanitarian law,” …
” Recalling its resolution 2117 (2013) and expressing grave concern at the threat to peace and security in Yemen arising from the illicit transfer, destabilizing accumulation and misuse of small arms and light weapons,” and details that,
“Acting under Chapter VII of the Charter of the United Nations,
1. Demands that all Yemeni parties, in particular the Houthis, fully implement resolution 2201 (2015), refrain from further unilateral actions that could undermine the political transition in Yemen, and further demands that the Houthis immediately and unconditionally:
(a) end the use of violence;
(b) withdraw their forces from all areas they have seized, including the capital Sana’a;
(c) relinquish all additional arms seized from military and security institutions, including missile systems;
(d) cease all actions that are exclusively within the authority of the legitimate Government of Yemen;
(e) refrain from any provocation or threats to neighbouring States, including through acquiring surface-surface missiles, and stockpiling weapons in any bordering territory of a neighbouring State;
(g) end the recruitment and use of children and release all children from their ranks;” and initiates an Arms embargo that sets the standard that,
“14. Decides that all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale or transfer to, or for the benefit of Ali Abdullah Saleh, Abdullah Yahya Al Hakim, Abd Al-Khaliq Al-Huthi, and the individuals and entities designated by the Committee established pursuant to paragraph 19 of resolution 2140 (2014) (hereinafter referred to as “the Committee”) pursuant to paragraph 20 (d) of this resolution, the individuals and entities listed in the annex of this resolution, and those acting on their behalf or at their direction in Yemen, from or through their territories or by their nationals, or using their flag vessels or aircraft, of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, and technical assistance, training, financial or other assistance, related to military activities or the provision, maintenance or use of any arms and related materiel, including the provision of armed mercenary personnel whether or not originating in their territories;“(S/RES/2204 – E)
This reaffirms the support of the Yemeni government and strides for there to be a long-term solution in the region and explains that the actions of the Houthi insurgents are deplorable and there needs to be resolution to the issue and the following resolutions echo this idea as more support and commitment to the conflict.
Article 38 of the International Court of Justice
This article is used to determine how the International Court of Justice will take on cases in accordance with international law and how the,
“1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”( STATUTE OF THE INTERNATIONAL COURT OF JUSTICE)
With this document the ICJ can decide what cases they can pursue and establishes their jurisdiction of the court. With this if the Saudi or US forces are guilty of committing war crimes this allows the ICJ to take them to court for their actions.
Article 6 of Nuremberg Trials
“The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” (The Trial of German Major War Criminals)
This here focuses on the basis of which major war crimes one can be prosecuted under based on the actions that were taken during World War II. This trial set precedent for future cases that deal with the accusation of war crimes.
Analysis of Commission’s Questions:
In light of what is going on in Yemen it is important that we hold all parties accountable for the extent of their involvement in the region. This includes the Houthi rebels that have initiated the conflict and others involved such as the United States and Saudi Arabia and decide whether they are acting within the legal limits. As far as acting within accordance with the Humanitarian Intervention Principle I do not believe that either nation is acting within the legal limits and their presence in the region is unjustified. The idea of the Humanitarian intervention principle that allows actors from outside a conflict to intervene in the struggle with the presence of military forces, interfering in internal affairs of a state with a presence in airspace that has not committed an act of aggression against another state and that does not pose direct threats to states’ interests. This means that the intention of the intervention should only occur when there is a,” threat to the peace, breach of peace or act of aggression”. Both nations have stated that their involvement in the region is strictly humanitarian with the United States limiting their involvement to “non-combat support” to Saudi Arabia including intelligence sharing and air-to air refueling for its warplanes. But the US has taken a more active involvement by deploying troops who are actively fighting Al Qaeda in the south part of the country and supplying Saudi Arabia with weapons. The US has also deployed missiles on sites operated by Houthi rebels. Beyond that there have also been accusations from organizations such as Human Rights Watch claiming that there is credible evidence that the US provided Saudi Arabia with cluster bombs carried out with aircraft of US or western origin which is banned under the 2008 Convention on Cluster Munitions. Though many of these are intended to stop the insurgency there have been multiple casualties of civilians that has also endangered many of them and the cluster bombs that were used may act as mines putting the lives of the innocent at risk. This is one of the many reasons that the US involvement in Yemen has gone far beyond that of the Humanitarian Intervention Principle as their interests are mainly in maintaining a friendly relationship with Saudi Arabia and gaining economic benefits by ensuring Yemeni ports are open to trade. Even the United States Congress has called for intervention to cease as the actions taken by the US based on the War Powers Act puts them at war and this operation was never formally approved therefore unconstitutional.
Saudi Arabia on the other hand is also guilty of overstepping their presence in Yemen. They are in the region participating in a proxy war with Iran to assert dominance in the region and keep the Hadi government in power that favors the Saudi crown. The Arabian army is indeed fighting Houthi rebels but has been accused of overstepping their presence and conducting unlawful airstrikes on civilian targets. Their mask is the idea of humanitarianism, but the message is clear that their main objective is to compete with Iran for power. As a way to assert their dominance other than airstrikes the Saudi forces have been accused of attacking facilities that are run by aid organizations, using phosphorus as a weapon, establishing secret prisons, targeting of wounded and medical personnel and Using cluster munitions. These accusations must be further investigated as there is no way that they could be used to bring about peace and security upon the Yemeni people but poses a threat to their very existence.
Actions speak louder than words and when it comes to armed conflict, the United States and Saudi Arabia have intervened in the crisis occurring in Yemen guised under the pretense of Humanitarianism but plagued with other interests at stake. Both states are in violation of many international laws forcing an investigation as to whether they are suspect to war crimes. With that being said both Nations are at fault of violating United Nations Charter Article 2(4), Article 3 section 1(b) of the Geneva Convention, UN resolution 2216, 2204,2266, and 2342 as both parties have violated the Humanitarian Intervention Principle and have brought forth unnecessary violence upon the Yemeni people by using tactics that are far beyond the limitations set forth by these governing bodies acting upon their own interests with almost no end to the conflict in sight.
From these actions depriving the people of Yemen of their human rights granted to them it is up to the International Court of Justice to bring these nations to justice for defying Article 6 of the Nuremburg Trials where these states are guilty of perpetuating war crimes and crimes against peace. I can attest to the fact that the improper engagement of assistance from the United States makes them guilty of aiding in the war crimes Saudi Arabia has committed as millions of innocent civilians have died due to the destruction of key infrastructure, blockades on the country depriving citizens of key necessities to function, the use of unauthorized weapons with no end in sight to this struggle. I urge the general assembly to investigate the actions of both forces and take the necessary steps to hold them responsible for their deeds with the guidance of the ICJ in pursuant to article 6 of the Nuremburg Trials and article 38 of the International Court of Justice.
Works Cited
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