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Analysis of Jurisprudential Precepts concerning War Crimes in Yemen

The crimes occurring in Yemen are serious and the responsible parties demonstrably unwilling or unable to address them. The intense fighting that resulted in the virtual takeover of Yemen by the Shia Houthis, sent foreign nationals fleeing the chaos, resulting in the recent, splendidly executed, and deservedly, well-publicised rescue of more than 5,000 Indian and foreign nationals by the Indian government.

It also sent shock waves through neighbouring Saudi Arabia which chose to react robustly though there was no attack on Saudi Arabia by Yemenis.
To properly understand the situation, one first needs to study the history of war crimes, war crimes in Yemen, its politics and its turbulent history. The conflict has its roots in the failure of a political transition supposed to bring stability to Yemen following an Arab Spring uprising that forced its long-time authoritarian president, Ali Abdullah Saleh, to hand over power to his deputy, Abdrabbuh Mansour Hadi, in 2011.

As president, Mr Hadi struggled to deal with a variety of problems, including attacks by jihadists, a separatist movement in the south, the continuing loyalty of security personnel to Saleh, as well as corruption, unemployment and food insecurity. Thus, all this shows that political contestations in Yemen have always been driven by personal ambitions and political ideology, and never by sectarianism.

Analysis Of Jurisprudential Precepts Concerning War Crimes In Yemen

History of War Crimes:
As the name itself suggests, war crimes are basically those acts which violate the laws of war and give rise to individual criminal responsibility. War crimes have been exercised since ages. The only line of distinction is that they are now rampant and recognized. The concept of war crimes emerged at the turn of 20th century when the body of customary international law applicable to warfare between sovereign states was codified.

The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474 was the first international war crimes trial, and also of command responsibility. He was convicted and beheaded for crimes that "he as a knight was deemed to have a duty to prevent", although he had argued that he was "just following orders".[1] Thus, we can conclude that this concept of war crimes is not of recent origin.

The main idea had always been that war was a part of nature, and the horrors associated with it were part of nature of war, until this concept changed due to Second World War. The examples of war crimes stretch back to Greek and Roman times. The situation before the 20th century was that the enemy soldiers were treated brutally and whether there was any punishment for this kind of barbaric treatment depended on who eventually won the war. Commanders and politicians usually escaped any punishment for the role they had played in the initiation of war. So, basically there was no structured approach to dealing with war crime.

Eventually, there was no agreement that political and military leaders should take criminal responsibility for the acts committed by their states or their troops. However, outlook changed during the Second World War, when the murder of several million people, who were mainly Jews, by Nazi Germany, and the mistreatment of both civilians and prisoners of war by the Japanese, prompted the Allied forces to prosecute the people they believed to be the perpetrators of these crimes. These trials provide the main precedents for cases being heard by tribunals in this century.[2]

People of a victorious country were never tried for war crimes, rather people belonging to a country that lost were usually the ones to get tried and these trials were basically a trick to get revenge and could be seen as acts of injustice themselves. Fortunately, this wasn’t always the case. For instance, trial of several Americans for war crimes committed in the Vietnam conflict, and the war crimes trials relating to conflict in the former Yugoslavia can be said to be significant exceptions to this terrible tradition.

War crimes fall into four groups
  • Crimes against Peace
  • Violation of the laws and customs of War
  • Crimes against Humanity
  • Genocide

The first category namely, crimes against Peace mainly involves, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances. It also includes participation in a common plan or conspiracy for the accomplishment of any of the above.

Violations of the laws and customs of war, encompasses:
  • Atrocities or offences against persons or property, constituting violations of the laws or customs of war
  • murder, ill treatment or deportation to slave labour or for any other purpose of the civilian population in occupied territory
  • murder or ill treatment of prisoners of war or persons on the seas
  • killing of hostages
  • torture or inhuman treatment, including biological experiments
  • plunder of public or private property
  • wanton destruction of cities, towns or villages
  • devastation not justified by military necessity

The third category namely crimes committed against Humanity deal with atrocities and offences committed against any civilian population, before or during the war, including:
  • murder
  • extermination
  • enslavement
  • deportation
  • mass systematic rape and sexual enslavement in a time of war
  • other inhumane acts like 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.

Genocide
Genocide is considered one of the most severe crimes against humanity. In laymen terms, it means the deliberate attempt to destroy a national, ethnic, racial or religious group. However, Genocide, in truer sense, means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:
  • killing members of the group
  • causing serious bodily or mental harm to members of the group
  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
  • imposing measures intended to prevent births within the group
  • forcibly transferring children of the group to another group.
Below given is an incomplete list which includes a number of alleged genocides:[3]

Armenia 1915-1923: Armenians say about 1.5 million people were slaughtered by Ottoman Turks between 1915 and 1923. Turkey rejects the term genocide and says the figure was closer to 300,000 Armenians killed among other numerous victims of a partisan war raging in World War I as the Ottoman Empire collapsed.

Europe 1930s and 40s- The Holocaust: The killing of the Jews, Roma (gypsies) and others by the Nazis.

Rwanda 1994: 800,000 Tutsis and moderate Hutus were killed, and an unknown number forced to flee the country.

Former Yugoslavia 1992-1995: Trials continuing at The Hague.

In my opinion, leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the crimes stated above, are criminally responsible for everything done by anyone in carrying out such a plan. Moreover, the point raised that a person was obeying an order of his Government or of a superior does not free him from responsibility, but can be considered and may reduce the appropriate punishment.

Third-Party Intervention of Saudi Arabia:
The Saudi Arabian-led intervention in Yemen is an intervention launched by Saudi Arabia in 2015, which lead to a coalition of nine countries from West Asia and North Africa, in response to calls from the pro-Saudi president, for military support, after he was ousted by the Houthi movement due to economic and political grievances, and fled to Saudi Arabia.

The intervention initially consisted of a bombing campaign on Houthi rebels and later a naval blockade and the deployment of ground forces into Yemen. The Saudi-led coalition has attacked the positions of the Houthi militia, and loyalists of the former President of Yemen.

Fighter jets and ground forces from Egypt, Morocco, Jordan, Sudan, the United Arab Emirates, Kuwait, Qatar, Bahrain, and Blackwater took part in the operation. Djibouti, Eritrea, and Somalia made their airspace, territorial waters, and military bases available to the coalition. The United States provided intelligence and logistical support, including aerial refuelling and search-and-rescue for downed coalition pilots.

It also accelerated the sale of weapons to coalition states and continued strikes against AQAP. The US and Britain have deployed their military personnel in the command and control centre responsible for Saudi-led air strikes on Yemen, having access to lists of targets. [4]

The war received widespread criticism and had a dramatic worsening effect on Yemen's humanitarian situation, that reached the level of a "humanitarian disaster" or "humanitarian catastrophe", and many have labelled it as a genocide. The question of whether or not the intervention is in compliance with Article 2(4) of the UN Charter has been the matter of academic dispute.

The conflict's status was described a "military stalemate" in 2019. The global COVID-19 pandemic is said to have given Saudi Arabia an opportunity to review its interests in Yemen. In early 2020, it was said that Saudi Arabia was searching for an exit strategy, amid the COVID-19 pandemic and military defeats.

Realists v. Liberalists: Ideologies on Intervention
Realist tradition describes international relations as conflict between states in which the interest of each state excludes the interests of any other. Under realist perspective states are free to pursue their goals without any kind of moral or legal restrictions. As a classical realist, Morgenthau attributes the objective laws of politics to human nature. He claims that the statesman makes his decision regarding foreign policy issues on the basis of rational choice theory which minimizes risks and maximizes the benefits.

The decisions are made based on the assessment of how that policy might affect the power of the nation. So, the statesman is believed to think and act in terms of interest defined as power. Maximizing the state interest in an anarchic and threatening international environment is seen as the only option to ensure survival of the state. Thus, they claim that states struggle for power and interests so by and large material interests rather than norms determine the decision for intervention.

Under conditions of prevailing international anarchy, states strive for either maximizing power and security or minimizing threats to security for the ultimate aim of survival. From realist point of view, military intervention is an instrument so states intervene only if these interests are at stake.

The liberalist theory, in contrast to realist view of international politics, opposes the idea of constant conflict and zero-sum game struggle among states, and instead claims that transnational social bonds that link the individual human beings provide a window of opportunity to cooperate. Liberalist theory also supposes that moral imperatives limit the state actions in contrast to the realist conception. Liberalism suggests that interdependency, interaction, and cooperation among states enable and sustain peace and security.

Thus, liberals mainly concentrate on how lasting peace and cooperation in international relations can be ensured. They believe material power is not the sole determinant of international relations and emphasise the role of international institutions in promoting and enforcing peaceful relations among nations by mitigating the implications of existing anarchy.

International organizations act as higher authority since the states accept willingly to limit their own power, autonomy, and, to some extent, freedom through a set of rules put in place by international organizations of which they become members. The empowerment of international organizations ensures the implementation of political, economic, and liberal norms at national and international levels.

War Crimes in Yemen:
According to foreign policy reports, a civilian named, Salah Basrallah, had lost 21 family members in four consecutive airstrikes on his village, including his six children and wife. According to him, near the decapitated area lay remnants of an MK-80 series bomb, similar to those found at many other coalition strike locations and which the United States is known to supply to Saudi Arabia.

There were other attacks that killed 55 people in total, according to local authorities in Saada, including 35 children. Several people were killed in follow-up airstrikes, as they tried to rescue people in the aftermath of the first bombing. It took survivors five days to dig out all the bodies; many had been shredded to pieces. With the coalition bombing campaign hitting the one-year mark, airstrikes continue to devastate the lives of innocent Yemeni families. [5]

These gruesome scenes are just few of the many examples of the horrors that Yemen has seen since the Saudi-led military coalition launched its air campaign in March 2015. On one side of this war is the Houthi armed group, often referred to as the “Popular Committees,” which is supported by armed groups loyal to former Yemeni President Ali Abdullah Saleh and parts of the army. On the other side is the military coalition led by Saudi Arabia and allied forces on the ground, usually referred to as muqawama, or the “resistance,” fighting on behalf of Hadi and his government.

Hundreds of civilians have been killed in airstrikes while asleep in their homes, when going about their daily activities, or in the very places where they had sought refuge from the conflict. The United States, Britain, and others, meanwhile, have continued to supply a steady stream of weaponry and logistical support to Saudi Arabia and its coalition. One year on, it still remains unclear who is winning the war.

Saudi Arabia and its coalition partners claim to have regained control of more than 80 percent of the country, but the Houthis remain in control of the key strongholds of Sanaa, Ibb, and Taiz. Moreover, armed groups such as Al Qaeda in the Arabian Peninsula and the Islamic State are gaining ground and support in the south and southeast parts of the country, taking advantage of the security vacuum to consolidate their power. One thing is clear: Yemeni civilians are losing the most.

Just War Theory:
Just War Theory is a tradition of military ethics that, rather than looking at strictly legal aspects of starting or getting involved in a war, focuses more on the moral side of war. In other words, Just War Theory supplies parties with a set of criteria to judge if a war is or will be, just. This can help to morally justify the actions of their own population, the international community and the population of the country in which the war is taking place.

Moreover, if the different aspects of Just War Theory are not followed, other parties can also use the theory to condemn a war because it is not just. This theory encapsulates several criteria, which can be divided into two components. The first component, ‘jus ad bellum’, or ‘the right to go to war’, focuses on different criteria that should be considered before entering into a war and describes a mainly political process.

This component is generally accepted to include[6]:
  1. the need for a just cause
  2. the idea that only a legitimate authority can make the decision to go to war,
  3. the need for the right intent,
  4. the consideration if waging war is a proportionate response to the cause,
  5. if waging war is the last resort, and
  6. if there is a reasonable chance of success.

The second component of Just War Theory, jus in bello, or the right conduct in a war, focuses on principles that should be considered during a war and therefore, has a more military focus. It includes
  1. principle of discrimination, meaning that a distinction has to be made between combatants and non-combatants,
  2. the principle of proportionality, which means that any harm to civilians or damage to civilian property should be proportional to the military advantage that an attack has, and
  3. the principle of necessity, which means that some actions can be considered just during war if they meet a certain level of military necessity.
If failed to meet one or multiple criteria, it would eventually mean that a war can no longer be considered to be just. Thus, it has become clear that while the Saudi-led coalition managed to meet some of the Just War criteria, it failed to meet several others. One can argue that even when not all criteria are met, it is important to still try to meet the other criteria. However, in order for a war to be truly just, all criteria would have to be fulfilled. Therefore, the intervention was only partly just, meaning it was also partly unjust.

It is interesting to note is that none of the ‘jus in bello’ criteria were met. Several ‘jus ad bellum’ criteria were also not met, especially when taking into consideration the unofficial intents of thwarting Iran, protecting economic interest, that according to many, lie beneath the surface. While, based on Just War Theory, the Saudi-led coalition should not have intervened, the international community should have reminded the coalition of its responsibilities under Just War Theory.

Violation of International Law and Human Rights:
International humanitarian law, or the laws of war, distinguishes between “international” and “non-international” armed conflicts. Under the Geneva Conventions of 1949, the laws concerning international armed conflicts apply to all cases of armed conflict between two or more states. While international humanitarian law provides no guidance on whether an entity such as the Houthis represents the Yemeni state, as a matter of general international law, the Houthi authority does not appear to meet the requirements of statehood.[7]

Even though many countries are involved in the conflict in Yemen, the fighting does not involve one state engaged in armed conflict with another state, so it is not an international armed conflict. Instead, the legal regime for a non-international armed conflict applies. The non-international armed conflict between coalition forces with its Yemeni allies and the Houthi forces and their Yemeni allies is governed by international humanitarian law set out in treaties and in the rules of customary international law.

During armed conflict situations, in which the laws of war apply, international human rights law remains in effect. Yemen and the other countries involved in the fighting are all party to a number of human rights treaties, and all these treaties outline guarantees for fundamental rights, many of which correspond to the rights to which combatants and civilians are entitled under international humanitarian law such as prohibition on torture and inhuman and degrading treatment, the requirements for non-discrimination and right to a fair trial.

In addition, there have been many human rights violations committed by various groups after the Yemeni Civil War. All sides of the conflict have been accused of human rights violations. Coalition forces led by Saudi Arabia and backed by the United States and other nations have also been accused of violating human rights and in some cases, breaking international law. Coalition attacks, especially airstrikes, have been accused of causing large scale civilian deaths.

The use of force by these groups has excubated the humanitarian crisis situation in Yemen, as critical infrastructure has been damaged or destroyed in attacks. In addition to the attacks, blockades of critical resources, such as fuel, to Yemen by Saudi Arabia have hindered the transport of food in Yemen, and the ability of civilians to travel to locations where there are adequate medical facilities. The situation in Yemen has been described as "one of the worst crises in the world" by the United Nations Humanitarian Coordinator for Yemen, which in itself prove that the very idea of human rights is tethered.

Conclusion
According to the reports of the experts, all the parties involved in the decades-long-war are responsible for the violations. The reports argue that the forces loyal to the exiled government of Yemen, and its international partners such as Saudi Arabia and the UAE, have regularly indulged in war crimes. It also indicts Houthi rebel forces for similar violations. The report demands that the UN security council refer the situation in Yemen to the International Criminal Court and expand the list of persons sanctioned.

It also asks for the creation of an international criminal justice mechanism in Yemen and recommends the creation of a special court to deal with the international crimes committed during the war in Yemen.

The war in Yemen has killed thousands of people. The Saudi-led land, sea and air blockade of the country has led to a serious lack of essential commodities, including food and medicine, in the country. This has pushed millions of Yemenis to the verge of starvation and death, creating the “largest humanitarian crisis” of the century.

Despite the international condemnation and appeals of the UN, the Saudi-led coalition, with active support of the US, continues its airstrikes and ground offensive against the Houthi government which controls capital Sana and other northern and eastern areas of the country.

In addition to a devastating effect, these war crimes also have a lasting, destabilizing impact on the safety and security of communities, nations and regions for decades after they occur. Therefore, investigation and prosecution of these crimes should be the central aim to fight against this impunity. Moreover, the government should strive to enhance efforts of law enforcement authorities, international criminal tribunals and national prosecution services to investigate and seek justice for these criminal acts.

Furthermore, the law enforcement should promote and facilitate access to their services, technical tools, resources and expertise in the area of serious international crimes and should also support member countries and partner organizations by sharing information and coordinating international investigations. And it is a known fact that investigating these types of serious international crime requires specialized training and knowledge and thus, the capability of investigators should be deemed a priority in this field.

End-Notes:
  1. James T. Johnson, Just War Tradition and the Restraint of War: A Moral and Historical Inquiry, available at www.britannica.com
  2. BBC- Ethics, War- War Crimes, available at www.bbc.co.uk
  3. BBC- Ethics, War- War Crimes”, available at www.bbc.co.uk
  4. Cem Boke, “Third-party Intervention to Civil Wars: Realist, Liberalist and English School Theoretical Perspectives”, available at www.behorizon.org
  5. Rasha Mohamed, “Saudi Arabia is committing War Crimes in Yemen”, available at www.foreignpolicy.com
  6. Birgit Kruitwagen, “Just War or Aggressive Intervention?”, available at www.militairespectator.nl
  7. The Conflict in Yemen and International law”, available at www.hrw.org

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