A PANDEMIC OF IMPUNITY IN A TORTURED LAND

The Houthi movement has recently been designated as a Terrorist Organization due to their violations of IHL and human rights law. However, they have not been the solely liable for such a conduct.

The United States designated the Ansar Allah movement, better known both at home and abroad as Houthi movement, as a “Foreign Terrorist Organization; a designation that comes along the recognition of three top leader of the group as “Specially Designated Global Terrorist”. The US and its allies in the region, namely Saudi Arabia and the United Arab Emirates, argue that the designation is warranted because of the indiscriminate attacks led by the Houthis upon civilians in Yemen, other than the ones launched against Saudi Arabian bases or attacking shipping in the Red Sea. One of the latest of these attacks dates back the 30th December 2020 and it targeted Aden’s airport at the arrive of the newly formed government in accordance with the Riyadh agreement signed between the ROYG (internationally recognized government) and the STC (Southern Transitional Council). The Houthis deny responsibility for the strike.

This designation will unquestionably make what for the UN already is world’s largest humanitarian crisis even worse. Though, this article will not further analyse how this event will affect the peacebuilding process, hindering UN-led effort to negotiate a ceasefire, or how this recognition could affect humanitarian relief in Yemen. 

Rather, it is aimed at analysing the conflict from the perspective of International Law taking a closer look to theconduct of the parties involved. There is no doubt that the Houthis have been responsible of “indiscriminate attacks” targeting hospitals, using prohibited landmines or other explosive devices. However, the group has not been the sole actor of the conflict who has violated International Humanitarian Laws (IHL). 

Conflict Classification and applicable law

Categorizing the conflict in accordance with IHL is of primary importance to identify the applicable law to the conflict and to fully comprehend the scale of violations. 

Under IHL an armed conflict can be categorized either as an “international armed conflict”, if it is being fought between two or more states, or as a “non-international armed conflict” if it is fought between states and non-state actors. In the latter case, the conflict should meet two fundamental pre-requisites: the non-state party should be well-organized and there should be an intensive hostility between the two parties. 

Even though according to some critics Yemen conflict could be defined as a proxy war, and consequently as an international conflict, given the allegedly military and financial support that the Houthis receive from Iran, these allegations are not supported by proven demonstrations that Iran actually exercises an overall control over the group. Whilst the rebels are ideologically close to the Islamic Republic of Iran, it has not been possible to prove Iranian role in the organization, coordination and military planning of Houthis’ actions. On the contrary, the movement plays an independent role in the conflict having a proper military and political agenda. It comes as a consequence that Yemen civil war is a “non-international armed conflict”.

Thus, given that both the Houthi movement and the Saudi-led coalition are parties to the common article 3 to the Geneva Conventions and 1977 Additional Procol II (AP II) and that the rebels meet all the requirements set at the Article 1 of the AP I, both the above treaty law and customary IHL are applicable to the conflict.

Houthi and Saudi-led coalition conduct

Allegations have been raised of the violation of IHL and human rights law with regard to the conduct of hostilities and detention, arbitrary arrest and obstruction of humanitarian aid.

As for the humanitarian aspects of the conflict, as has been widely discussed in these days, the recognition of the Houthi movement as a Terrorist Organization may hinder humanitarian aid from reaching civilian populations. However, this would be the last of a series of obstacles already in place since at least 2015 when the Saudi-led coalition has imposed a blockade on all routes leading to Yemen to implement the arms embargo against the Houthis which severely restricted the flood of food, water, fuel and other essential goods to the civil population. According to a Human Rights Watch report this blockade has prevented the transfer of basic necessities to Yemen. On the other side, the Houthis have deliberately targeted humanitarian aid to the cities of Ta’izz, Hajjah and Hudaydah also hindering the distribution of cholera or Covid-19 response material.

Other than that, both the parties involved in the conflict have been responsible of indiscriminate and disproportionate attacks thus violating the laws of war. Notably, the attacks did not respect the principle of proportionality and that of distinction which regulate the use of force and the conduction of war attacks. Specifically, according to the AP I, the former principle mandates that “the parties to the conflict shall at all times distinguish between civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”.

It follows that during an armed conflict all civilian objects, as hospitals, schools or civil buildings cannot constitute a direct target of the attacks unless they are being used for military purposes. While according to the principle of distinction “[i]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects”. As a consequence, all parties to a conflict should ensure that the targeted object of the attack is a military target and that the harm caused to civilians is minimized – thus refraining from all the attacks which could cause disproportionate harm.

These aspects have not been respected nor by the Houthis neither by the Saudi-led coalition. Indeed, just as theHouthis have used banned antipersonnel mines or other explosive devices targeting cities and wounding civilians, same unlawful conduct has characterized the Saudi-led coalition which has been responsible of indiscriminate attacks against civilians, residential buildings, medical structures and personnel since the beginning of its intervention in the Yemeni conflict.

All of this had already been confirmed by the Panel of Expert on Yemen dating back to 2017 which noted that a wide number of attacks against civilians had been conducted by both parties; there is no prove that the harmed civilians were actually taking part to the conflict (principle of distinction); the Saudi-led coalition used precision-guided missiles which leads to the conclusion that the hit targets where actually the planned ones; finally, even though the target were military ones, the harm caused is considered to be disproportionate to the military gains. 

Conclusions

American decision to designate the Houthis as a Terrorist Organizations respond to the violations of numerous rules safeguarding human rights and concerning the law of war. However, if the Saudi-led intervention in the conflict can be considered legitim, complying with and explicit request coming from the ROYG, the conduct of the coalition cannot be evaluated as properly legitim and in respect of the applicable law to the conflict.

Just a small part of the vast range of violations of IHL and human rights law has been analysed in the present article. However, this has been sufficient to highlight the “Pandemic of Impunity in a Tortured Land” as the third and most recent report carried out by the UN Group of Eminent Experts on Yemen (GEE) – established by the United Nations High Commissioner for Human Rights with the resolution 36/31 – has been named and which constitutes detailed analysis of the serious violations of international human rights law and IHL in the Yemeni conflict.

In view of the above, it is fundamental that the perpetrators of war crimes in Yemen, whether the Houthis or the Saudi-led coalition, are held accountable of their atrocities

Martina Brunelli

Ciao a tutti, sono Martina Brunelli, laureata in Mediazione linguistica e culturale e attualmente laureanda in Relazioni e istituzioni dell’Asia e dell’Africa presso l’università degli studi di Napoli “L’Orientale”. Sono fluente in quattro lingue e la mia voglia di migliorarmi mi ha portata ad approfondire i miei studi a Siviglia (Spagna) e Rabat (Marocco). La mia collaborazione con lo IARI è iniziata ad ottobre 2019 spinta dal desiderio di mettermi alla prova e di comprendere al meglio l’ambiente socio-politico mutevole e dinamico della regione del Medio Oriente e Nord Africa, la macro-area di cui mi occupo nelle mie analisi per lo IARI. Scrivere per questo giovane think tank mi dà la possibilità di coadiuvare i miei interessi per le relazioni internazionali e gli equilibri geopolitici dell’area MENA al mio desiderio di crescita professionale. Mi permette, inoltre, di confrontarmi con un ambiente giovanile ma allo stesso tempo stimolante.

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