Yemen, (AQAP) and Ansar al-Sharia, both Muslim extremist groups,

Yemen, a former British colony in the Middle East was
once touted as the next success story in the region. The contemporary Yemeni
state was established in 1990 after the amalgamation of the US and
Saudi-financed Yemeni republic, in the north, and the Russian-backed Republic
of Yemen, in the south. Immediately after the unification, Ali Abdullah Saleh,
who had ruled northern Yemen militarily, since 1978, was sworn in as leader of
the newly emerged country.

In spite of the consolidation of the two regions,
though, the government at the center, headed by Saleh, failed to establish
control and garner trust beyond Sana’a, the country’s capital. Saleh, who had
ridden into power by playing divisive politics began to encounter problems when
Al-Hirak, a resistance group from Yemen’s south, started to rebel just four
years after the new country came into fore. Members of the Al-Hirak group
complained mostly of marginalization and demanded for greater representation in
the central government, or even succession.

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In the early 2000s, Yemen’s fragile unity was further
threatened when Al-Qaeda in the Arabian Peninsula (AQAP) and Ansar al-Sharia,
both Muslim extremist groups, invaded and gained control of the southern part
of the country. The Houthi group, a movement which fights for the Zaidi Shia
Muslim minority in Yemen, executed series of violent uprisings against the
government of Saleh until 2010. The irrepressible Arab spring that swept
through the middle east in the early part of the decade arrived Yemen in 2011.
With a divided citizenry, fractured military, and amid allegations of graft and
autocracy, Abdullah Saleh was forced to step down and hand over to his deputy,
Abed Rabbo Mansour al-Hadi.

The tenure of al-Hadi soon ran into familiar problems
after he enacted the fuel subsidy policy. Pressured by the International
Monetary Fund in the middle of a crumbling economy, al-Hadi lifted fuel
subsidies in 2004. This action was met by massive protests mainly from the
Houthi movement, which had by now amassed enough support country-wide. The
protesters demanded lower fuel prices and a new government. A counter protest
was held by groups loyal to al-Hadi. Further disillusioned by the government’s
unfavorable policies and the new president’s deficiencies, the Houthi group,
supported by many disenchanted Yemenis, assumed control of the northern
heartland of Saada and neighbouring regions.

Emboldened by their successes, the Houthis marched into
Sana’a, the seat of government and seized the presidential palace and other
major buildings, putting al-Hadi and members of the federal executive group
under detention.

Conflict Background

To classify whether the conflict in Yemen is an international
armed conflict (IAC) or a non-international armed conflict (NIAC), different
dynamics have to be examined. According to the International Criminal Tribunal
for the Former Yugoslavia, a non-international armed conflict exists when there
is ‘protracted armed violence between government authorities and organized
armed groups (OAG) or between such groups within a State’ (ICTY, 2000) Hence
for a conflict to be classified as a NIAC, it must exhibit a considerable
degree of intensity of armed violence and the characters participating in the
conflict must show a level of organization.

The current conflict in Yemen started mainly between the
Houthis and the legitimate government of Yemen. Both parties are backed by
foreign actors. The former by Iran and the latter by Saudi Arabia and other
countries. The support of these foreign powers, however, do not automatically
transform the Yemen conflict into an IAC even though all the state actors are
on the same side. However, the Yemen conflict has over the years mutated from a
traditional/national to a multi-national/transnational NIAC – an armed conflict
where a state armed group is engaged in protracted armed violence with a state
and is operating from across an international border (Geneva Academy of
International Humanitarian Law and Human Rights, 2018). While the conflict was
initially between Yemen government forces and the OAGs (The Houthis and
al-Qaeda), foreign armies have become involved in the fighting.  

The focus of this paper is to examine the legality of
Saudi Arabia’s incursion into the Yemen conflict and discuss the lawfulness of
its blockade on Yemen according to Jus ad bellum. Questions have been asked
about how the applications or misapplications of International Humanitarian Law
(IHL), by Saudi Arabia, in the crises, has caused serious humanitarian
challenges, especially for civilians.

Analysis

The foray of Saudi Arabia into the Yemen crisis began in
March 2015, after the ouster of Saudi-backed president Hadi by Houthi rebels.
Worried by the increasing power of the Houthis who were believed to be
supported by regional Shia Power-Iran, Saudi Arabia and a host of other Sunni
Arab states in the region launched a military campaign to help re-instate Hadi
as the legitimate president of Yemen. One could argue that the pre-existing
animosity and contention for regional superiority that had always existed
between Iran and Saudi Arabia fuelled the willingness of the latter to engage
in the conflict. While that may not be far from the truth, Saudi authorities
have explained their participation based on the rules of the laws of war in a
non-international armed conflict.

Saudi’s brutal military campaign against rebels holding
forth in Yemen’s capital of Sana’a has been backed by the US, both logistically
and financially. It is understood that the United States, in trying to protect
its interest in middle east and reduce the influence of al-Qaeda, has given
backing to the Saudi-led coalition. In 2015, as part of military operations
against the rebels, the Saudi navy commenced operations off the Yemeni coast
and a naval and air blockade was ignited. It has however been reported that the
blockade, popularly referred to as the Saudi blockade, has brought untold and
grievous humanitarian crises on Yemen’s civilian population.

A blockade is a means of warfare that aims to prevent
ships and vessels of enemy or neutral states from accessing particular
sea/airports of the country being blockaded. According to Article 102 of San
Remo Manual, it is expressly prohibited to declare a blockade if “it has the
sole purpose of starving the civilian population or denying it other objects
essential for survival or the damage on the civilian population arising from
the blockade is or may be expected to be excessive in relation to the military
advantage gained (ICRC, 1994). The Manual goes further in Article 103 to define
the rules of blockade in IHL. “If the civilian population of the blockaded territory
is inadequately provided with food and other objects essential for its
survival, the blockading party must provide for free passage of such foodstuffs
and essential supplies (ICRC, 1994). However, the San Remo Manual is unclear
about the applicability of blockades in NIACs. Yet, in Article 3 of the Manual,
there is an acknowledgment of the right to self-defence relating to Article 51
of the UN Charter. This Article points to self-defence against an “armed
attack,” a term which is relatable to actions of the Houthis against Saudi
Arabia. One might argue, though, that Article 51 of the UN Charter still only
applies to International Armed Conflicts between two states.

A recognition of belligerency is sufficient enough to
effect a blockade in a NIAC, as historically referenced in the American Civil
War. Just as Heintschel von Heinegg opines ‘It is a correct statement of
the contemporary law that, absent recognition of belligerency, the parties to a
non-international armed conflict are not entitled to establish and enforce a
naval blockade against foreign flagged vessels’ (Heinegg, 2012, p. 228). The
most important point to note is that although the Saudi-Yemen conflict is
majorly classified as a NIAC, the factors involved make the conflict seem more
like an international armed conflict. The Houthi rebels backed by Iran, militarily
and financially, control the government and major swaths of territory in Yemen,
thereby assuming state actor status. Like the Israel-Gaza blockade incident in
2009, which was classified as NIAC due to the nature of the conflict,
contemporary NIACS are gradually assuming the dimensions of IACs and it is
becoming increasingly complex to separate one from the other.

Nevertheless, the Saudi government has justified the
blockade. After successfully shooting down a ballistic missile that had been
fired by Houthi rebels into Saudi airspace, the authorities reacted and
tightened the blockade. It declared the attack “an act of war” by Iran, which
backs the Houthi rebels with weapons shipments and advisers. And it tightened
its blockade of Yemen, rendering it virtually impossible for humanitarian aid
to reach Yemen’s air- and seaports (Aleem, 2017). Saudi intelligence authorities have
reported that the blockade is necessary to prevent the proliferation of arms to
rebels in Yemen by Iran. The stand of the intelligence authorities is within
the law. In the law of blockade in armed conflicts, the blockading country is
allowed to restrict movement of vessels and carriers within the air and
seaports of the country under the blockade, if such vessels are suspected of
arms smuggling. There is also no ambiguity in the actions of Saudi Arabia
triggering the law of extraterritorial self defence once the Houthi rebels from
Yemen fired a missile into its territory.

The legal analysis of the blockade of Yemen by the
Saudi-led coalition thus raises legal questions. Is the blockade expressly
legal? Has any violation occurred as a result of establishing the blockade? On
the surface, it might seem that Saudi Arabia has violated the prohibition of
starvation as a means of warfare. Article
14 of
the Additional Protocol II in all its
entirety prohibits the starvation of civilians as a method of combat, or the
destruction, removal and acts of rendering useless, for that purpose, objects
indispensable to the survival of the human population (ICRC, 1977).This
prohibition is further contained in several military manuals and the 26th
International Conference of the Red Cross and Red Crescent in 1995 strongly
condemned “attempts to starve civilian populations in armed
conflicts” and stressed “the prohibition on using starvation of civilians as a
method of warfare” (ICRC, 1995). Do the
sea and air ports of Yemen count as objects indispensable for the survival of
the Yemen civilians? Apparently, yes. Yemen is mostly dependent on food imports
from foreign markets to meet its domestic consumption and feed its citizens

Nevertheless, it could
also be argued that civilians caught between the crossfire of the conflict are
collateral damage especially since the blockade was not initially effected to
deprive civilians of the means of sustenance. In this sense, the notion of military
necessity and collateral damage comes into play. The principle of necessity
allows measures which are actually necessary to accomplish a
legitimate military purpose and are not otherwise prohibited by international
humanitarian law. In the case of an armed conflict the only legitimate military
purpose is to weaken the military capacity of the other parties to the conflict
(ICRC, 2018). On the other hand of the argument, though, lies the principle of
proportionality which seeks to limit the causation of harm to civilians in the
event of a necessary armed attack and in the event of harm being
necessary, it must be proportional to the military advantage, according to Article
51(5, b) of the Additional Protocol 1 (United Nations, 1979). In these
conditions, however, even though Saudi Arabia has not directly attacked objects
indispensable to civilian survival, except for unconfirmed reports of bombing
of hospitals, its blockade on Yemen’s sea and airports, even though legal and
within the ambits of IHL, has brought untold hardship and caused serious
humanitarian concerns among civilians. Another legal question that arises is if
the blockade that has caused harm to civilians in considerable extents is
proportional to the military advantage gained by Saudi Arabia.

The answer to that is multi-faceted. Perhaps, the best
way to answer is to look at the United Nations statement concerning the
enforcement measures carried out in Yemen by Saudi Arabia. The United Nations
Security Council (UNSC) not expressly condemning the blockade said it is “gravely distressed by the continued deterioration of the devastating humanitarian
situation in Yemen, expressing serious concern at all instances
of hindrances to the effective delivery of humanitarian assistance, including
limitations on the delivery of vital goods to the civilian population of Yemen”
(UN Security Council, 2017). Looking at the wording of the statement, the UNSC
did not clearly condemn the blockade, it instead expressed worry over the
humanitarian situation affecting the civilians.

Conclusion

The Yemen Blockade is as serious as it
is complicated. There is an ambiguity surrounding the legality of the blockade
and one has to dig deep into various War manuals and legal documents dealing
with laws of blockade, to reach a final opinion. It seems that the Mavi Marmara
incident in Israel’s Operation Sea Breeze has set a precedent for blockades in
NIACs. It might be a good time to start revising legal documents and including
laws explicitly governing blockades in NIACs, since most of the laws regarding
blockades deal with IACs which are becoming rarer as NIACs take center stage.

Overall, regardless of the legality of
the blockade, stringent measures need to be taken to cease the humanitarian
disaster happening in Yemen. Although, Saudi Arabia has promised to partially
lift the blockade and allow vessels carrying aid supplies access to the ports,
it has not lived up to its promise. The Sana’a airport still remains closed and
many of the seaports are inaccessible by humanitarian agencies.

 The United
Nations has estimated that 8.4 million people in Yemen are just “a step away”
from famine More than 10,000 people have been killed
in the three years of war, and one million people are threatened by an outbreak
of cholera (Alkhalisi, 2018).

The situation is dire. Violence, famine, and the denial of humanitarian
aid threatens to exacerbate the fastest-growing cholera epidemic ever recorded,
affecting nearly 900,000 people, according to UN figures.
While numbers of new cases have declined for eight consecutive weeks, the UN
warned that if the embargo is not lifted, “cholera will flare up once again.” (Quackenbush, 2017).

The effects of the conflict are clearly
disastrous and the Yemen civilian population, most especially children and
women are paying dearly for it. The United Nations as a matter of urgency
should intervene and implement ways to lift the blockade so that very much
needed supplies can reach the civilian population who are inarguably most
affected by the blockade. According to expert opinion, the end of the war in
Yemen is merely a drop in the ocean of the tough years that lay ahead of the
country’s restoration process.

The Yemen conflict is slowly becoming a forgotten one
despite the graveness of its consequences in the past 3 years. It is about time
for the UN, through the UNSC, to prevail and intervene firmly on the situation,
and put an end to the terrible humanitarian issues happening in Yemen.

 

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