Introduction
Global discussion has been redirected dramatically in recent months towards the conflict currently taking place between Russia and Ukraine, questions of ethics of war and the term war crime have come to dominate all public and international forums. The European Union in particular, has expressed grave concern and condemnation of the acts being perpetrated by Russian forces in Ukraine, and their impact on the wellbeing of millions of civilians caught in the crossfire.
Unfortunately, war crimes are not isolated events and across the world at this moment, State authorities are systematically violating human rights through acts of torture and other crimes against humanity. This has been the situation in Yemen for the past eight years, where an escalation of conflict has led to severe human rights violations since 2014. While ECDHR acknowledges that all belligerent parties of the conflict in Yemen committed potential war crimes over the last 8 years, we will focus on those violations committed by the Saudi-led coalition. The members of this coalition are supported by Western countries, politically and economically, so this dispatch aims to call these Western States to action. Air strikes, blockades to humanitarian aid, arbitrary detention and acts of torture, have all been used as tools by the Saudi coalition to overpower the opposition, with little concern for the innocent civilians who are at the centre of this suffering and destruction.
War crimes are a universal concern and the current context in Yemen is one that requires the urgent attention of world leaders. ECDHR calls for international bodies to address and sanction the war crimes being committed by the Saudi-led coalition currently stationed in Yemeni territory. Saudi Arabia and the UAE continue to commit atrocities against Yemeni civilians despite their participation in numerous international human rights conventions. These crimes must be globally addressed and it is the responsibility of the European Union to hold these governments accountable for their crimes.
Military, Political, Humanitarian Context
Yemen has been plagued by conflict and instability since early 2014 when the Houthi movement, also known as Ansar Allah, seized control of the northern part of the country, including the capital, Sanaa. The Houthis, who are predominantly Zaidi Shia Muslims from northern Yemen violently opposed the government led by President Abd-Rabbu Mansour Hadi, who came to power following the ousting of Ali Abdullah Saleh after the Arab Spring in 2011. The conflict became international in March 2015 when a Saudi-led coalition intervened militarily to attempt to restore the Hadi government, for fear of Iran gaining a foothold on their border. This coalition is made up of a group of Arab states, including the UAE, Bahrain, Kuwait, Egypt, Jordan, Morocco, and Senegal, led by Saudi Arabia, and backed by the United States and the United Kingdom.
The conflict has evolved since 2015, with international actors coming and going, and changing alliances, particularly for the Saleh loyalist forces. Indeed, while former president Saleh originally aligned with the Houthis to form a “political council”, he cut ties with them in 2017 and called for his followers to turn against them, which led to his death and the defeat of his forces. The Saleh loyalists eventually joined the Saudi-led coalition in 2018. Meanwhile, fighters from Al-Qaeda in the Arabian Peninsula (AQAP) and Islamic State affiliates have taken advantage of the chaos and led attacks throughout the war-torn provinces.
The continuous fighting has decimated the country, which was already mired in economic instability prior to the start of the war in 2014. Mass famine, destruction of infrastructure, and civilian casualties have prompted the UN to declare the conflict in Yemen as the world’s worst humanitarian disaster, with an estimated 20.7 million people in need of urgent humanitarian assistance. A recent report from the United Nations Development Programme (UNDP) anticipated that by the end of 2021 the conflict would have led to 377,000 deaths, both directly and indirectly through lack of access to food, water, and healthcare. Furthermore, the UNHCR has estimated that there are 4.2 million internally displaced persons in the country.
In 2022, as Yemen enters its eighth year of war, the situation “continues to propel in a downward spiral”. Years of attempted peace talks and mediation have failed, and the conflict remains deadlocked, with neither side willing to yield. According to the BBC, the conflict has taken an even more violent turn since the beginning of the year, with increased air attacks from both sides. The Saudi-led coalition continues to attack the Houthis with air strikes, and the Houthis in turn have used drones and ballistic missiles to attack strategic targets in Saudi Arabia and the UAE. The recent stepping down of President Hadi, and his replacement by an eight-person presidential council made up of the different anti-Houthi groups, offers hope of ending the deadlock at the very least, despite spelling trouble for Yemeni sovereignty.
Obligations of Belligerent Parties under International Humanitarian Law
Regardless of the countries, people, and warring parties involved, conflict is constrained by and answerable to International Humanitarian Law (IHL). The conduct of armed conflict (jus in bello) is regulated by a body of international legislation which has at its core the Geneva Conventions and their Additional Protocols. These international legislative tools are indeed essential to limit the brutality of conflicts and define what is legally acceptable during war and what instead breaches the law of war.
The body of regulations generally referred to as the 1949 Geneva Conventions consists of four conventions each focusing on a specific category of people not or who are no longer participating in the hostilities. To begin with, the first Geneva Convention applies to wounded and sick soldiers on land. The Convention guarantees their protection and humane treatment, along with assuring the safety of religious personnel as well as medical personnel and facilities. The second Geneva Convention adapts the previous one to the sea by protecting military personnel who are wounded, shipwrecked and sick at sea during a conflict. Likewise, it protects hospital ships and medical personnel at sea. The third Convention focuses on prisoners of war, granting them protection during captivity as well as once the conflict ends, by stipulating that as soon as the armed hostilities are over the prisoners of war should be released and repatriated without delay. During captivity, prisoners of war must not be subjected to any form of violence, including murder, sexual violence, and torture. Instead, they must be provided with adequate food, clothing, shelter, and medical care. Finally, the fourth Convention affords protection and humane treatment to civilians, including in occupied territory. Before 1949, no international treaty protected civilians. In fact, the existing Conventions concerned combatants exclusively. It was only after the devastation of the Second World War that the international community created a set of regulations to avoid any future barbarity and violence against civilians similar to what was experienced during the World Wars.
The Geneva Conventions entered into force in 1950, and it took them more than 50 years to be ratified by all recognised countries and become universally applicable. Their implementation must be applied regardless of a person’s sex, identity, religion, political opinion, or any other forms of discrimination.
By upholding humanity while limiting cruelty in conflict, IHL determines the boundaries within which war ought to occur, both international and non-international armed conflicts, such as those involving non-state parties. IHL is designed around three core principles that summarise the mainstream international understanding of what a balance between military necessities and humanity would look like. Regardless of the reasons motivating the conflict, and regardless of whether the beginning of the conflict was legitimate or not, the three principles of distinction, proportionality, and precaution apply to all warring parties. A pillar of any doctrine of just war, the principle of distinction provides that “the parties to an armed conflict distinguish at all times between civilians and civilian objects on the one hand, and combatants and military objectives on the other, and that attacks may only be directed against combatants and military objectives”. In the established framework of IHL, the principle of distinction should indeed prevent violence against non-combatants and condemn those committing indiscriminate violence. However, this does not preclude the possibility of incidental harm, namely civilian casualties occurring when allegedly targeting military targets. Consequently, legitimate warfare is further organised according to the principle of proportionality which dictates that “when attacking a military objective, incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, must not be excessive in relation to the concrete and direct military advantage anticipated”. In other words, if reasonably foreseeable, the incidental harm should be anticipated, and the attack carried out only if the military advantage is greater than the harm to civilian life. It follows that warring parties should “take constant care to spare the civilian population, civilians and civilian objects in the conduct of all military operations”, namely respect IHL’s third core principle of precaution. This last principle entails both active precaution, that is verifying if the attack respects the previous two principles as well as warning the civilian population unless circumstances do not allow it, and passive precaution, namely doing whatever is possible to protect civilians from the effects of military attacks.
The effects of armed conflicts are further limited by two additional fundamental IHL principles: the principle of humanity and the principle of military necessity, which promote respect for humanity while recognising armed victory as a legitimate consideration in conducting war.
A single and exhaustive list of war crimes does not exist; these crimes are indeed listed in different documents under IHL treaties, international Criminal Law treaties, as well as International Customary Law. As a non-international armed conflict involving both state and non-state actors, the Yemeni conflict is regulated by common article 3 of the four Geneva Conventions and Additional Protocol II as well as by the International Customary Law.
IHL and its three core principles have not been successful in avoiding war and its brutality. However, they participate in an international effort to limit the vilest effects of war, condemning unlawful behaviours and providing protection to non-combatants. By being universal, they apply to all parties and States regardless of their geopolitical influence, wealth, or diplomatic partners.
Violations Committed by the Saudi-led Coalition in Yemen
Airstrikes targeting civilians and civilian objects
The Saudi-led coalition has launched countless airstrikes during the war in Yemen, with many of them hitting civilians and civilian infrastructures, such as residential areas, markets, boats, and even medical facilities, despite their protected status under IHL. As a result, the UN Group of Eminent Experts on Yemen’s 2018 report considered that these airstrikes “have caused most of the documented civilian casualties”, before concluding to “a consistent pattern of harm to civilians” in the 2020 report. For example, an attack launched by the Saudi-led coalition caused approximately 50 civilian casualties in Hayjah Village, on February 15th, 2020. These attacks also impacted the activities of humanitarian organisations, for example with the destruction of a new cholera treatment centre administered by Doctors Without Borders on June 11th, 2018. Moreover, the use of cluster munitions in airstrikes by the Saudi-led coalition has been denounced by Human Rights Watch, as they “can’t distinguish military targets from civilians, and their unexploded submunitions threaten civilians, especially children, even long after the fighting”, according to former senior emergencies researcher at Human Rights Watch, Ole Solvang. For example, in 2015, banned cluster munitions wounded civilians in northern Yemen, Human Rights Watch reported. Considering the impact on civilian lives of these attacks, the UN has raised serious concerns about the legality of these airstrikes, in particular with regard to the principle of distinction, as the targets hit were often distant from actual military targets. Several UN reports by the Group of Experts on Yemen point at the possible failure of the coalition to take all necessary measures to minimise civilian casualties. Moreover, these airstrikes also seem to be in breach of the principles of proportionality and precaution, as the number of civilian victims seems to be too high compared to the direct and concrete military advantage anticipated.
Total blockade by the Saudi-led coalition on all borders of Yemen
On November 6th, 2017, the Saudi-led coalition imposed a total blockade on all borders of Yemen. At first, the United Nations reported that no humanitarian aid nor commercial trade was allowed to enter the country, which put the entire population at high risk of starvation, as Yemen relied hugely on imports before the war. Even though urgent humanitarian relief was eventually allowed in the country again, difficulties persisted, due to increased prices and restrictions on imports. Amnesty International reported that Saudi Arabia was also inspecting vessels, leading to excessive delays which in some cases prevented the delivery of essential goods and humanitarian aid, and contributed to the spread of disease by reducing access to food, clean water, and sanitation. On top of that, shortages of fuel made the difficulties in hospitals even worse, as they needed generators for electricity. Considering the grave impacts on civilians’ right to life, the UN Group on Eminent Experts on Yemen strongly criticised this total blockade. Indeed, it deemed the restrictions as ineffective to achieve the stated military objectives, because of the absence of any clear list of prohibited goods, which violates the principle of military necessity. Moreover, the Group concluded this to be a violation of the principle of proportionality, as there was “no possible military advantage that could justify such sustained and extreme suffering of millions of people”. Finally, starvation as a method of warfare is prohibited under Article 8(2) of the Status of the International Criminal Court. Thus, even if blockades are not illegal under IHL per se, they are if they are considered inconsistent with international law.
Arbitrary detention, sexual violence, and violations of freedom of expression
The UN Group of Experts on Yemen reported widespread arbitrary detention, torture and ill-treatment in some facilities and undeclared centres created by the UAE and affiliated Security Belt Forces. The belligerent parties in question have been violating the right to due process, because of a lack of formal legal proceedings or access to legal representation. Reported violations include sexual violence and rape of adult male detainees, as well as arbitrary detention and enforced disappearances. Indeed, these detentions are considered arbitrary because of the denial of fair trial rights. Since these violations seem to be related to the conflict, they may amount to war crimes, as IHL and International Human Rights Law clearly prohibit enforced disappearances, torture, and other inhuman or degrading treatment. Amnesty International reported that a lot of detainees kept at these facilities are human rights defenders, journalists, activists, and peaceful protestors, who are considered to be dissidents by the authorities. These opponents have been harassed and threatened by smear campaigns by different parties of the conflict, including the Saudi-led coalition. Moreover, sexual violence goes beyond detention facilities, as it is a common practice for security forces to abduct and rape women, in order to extort money from their families and communities, according to the UN Group of Experts on Yemen. Other vulnerable groups have been targeted by such practices, such as disabled people, migrants, and children.
Table 1. Potential War Crimes Committed by the Saudi-led military Coalition in Yemen, from 2020 to 2022.
*A list of potential war crimes committed by the Saudi-led coalition from 2015 to 2022, with sources included, is available at the following link: https://docs.google.com/spreadsheets/d/11txvwjxzueYzb53VnVLrKL6JiMFw8i2v8L1yxx589nI/edit?usp=sharing
European** Accountability and Responsibility
**This article includes the UK in its analysis of war crimes, given the UK’s membership in the EU up until recently.
Since its inception in 2015, the Saudi-led coalition’s military activities have raised a number of concerns for the international community. Under the guise of a battle against ‘terrorism’, the coalition has been able to enter Yemen with an aggressive mode of combat and commit the most egregious of crimes, all in the name of freedom and peace. ECDHR believes it is important that at this point, the EU takes an effective stand against the Saudi-led coalition and holds these perpetrators accountable for their numerous war crimes against the citizens of Yemen. It is most important that it is the EU who addresses this issue as its member states hold a certain level of accountability in the perpetuation of this war, through the sale of arms to both Saudi Arabia and the UAE. In the following text, a detailed breakdown of the involvement of European member states and the UK in the trade of arms with Saudi Arabia and the UAE is provided.
UK Involvement
According to Amnesty International, among the six different types of cluster munitions that have been used by the Coalition in Yemen territory, remnants of weaponry manufactured in the UK have been found in the governorates of Sanaa, Hajjah, Amran and Sa’da. A call for repercussions for company executives as well as governments has also been made by Amnesty International in the past in an effort to bring those responsible to justice. Among the companies named in this statement were Raytheon Systems Ltd, MBDA UK Ltd and BAE Systems Plc. In the past, state representatives of the UK have claimed that the actions of the Saudi led coalition were not reasonably believed to be a pattern of events or practices that might constitute serious consequences in terms of trade. Since then, the UN and a number of credible humanitarian organisations, including ECDHR, stand by the accusations of war crimes and crimes against humanity caused by the coalition and its use of excessive force. In response, the Department of Trade previously stated that “the government takes its export responsibilities seriously and assesses all export licences in accordance with strict licensing criteria” and that “we will not issue any export licences where to do so would be inconsistent with these criteria.” With undeniable evidence of their weapons in active use by the Saudi led coalition, the UK has a duty to take responsibility for its participation in the conflict in Yemen and the subsequent suffering it has caused, under the Rome Statute of the International Criminal Court Article 8 subsection 2 (a)(i)(ii)(iii), of which the UK is a signatory. By stopping the trade of arms with Saudi Arabia and the UAE, and condemning the human rights atrocities being committed by these forces, the UK will send a clear message of contempt for the practice of war crimes both universally and specifically within the context of the war in Yemen.
EU Involvement
In the same statement published by Amnesty International which documented the involvement of UK companies in the sale of arms to the Saudi-led coalition, a number of European countries were also mentioned. These included: “Airbus Defence and Space S.A.(Spain), Airbus Defence and Space GmbH (Germany), Dassault Aviation S.A. (France), Leonardo S.p.A. (Italy), MBDA France S.A.S. (France), Rheinmetall AG (Germany) through its subsidiary RWM Italia S.p.A. (Italy), and Thales France”. Furthermore, international accredited NGOs like the European Centre for Constitutional and Human Rights (ECCHR), have found that many of the remnants of bombs released during these coalition airstrikes were originally manufactured by European states, particularly Italy and Germany. Following an airstrike which took place on the 8th October 2016 on the Deir Al-Hajari village in Yemen, pieces of weaponry found in the rubble were attributed to the company RWM Italia S.p.A. which is a subsidiary of a German manufacturer known as Rheinmetall AG. It has also been found through investigation by ECCHR, that the targeting equipment used by the coalition are also made by Thales, a french company. The sale of European manufactured arms to Saudi Arabia and the UAE during a period in which they are engaged in war in Yemen, is a form of participation and engagement in the war and perpetuates the injustices that are enacted through those same arms. This violates multiple international humanitarian law conventions, including Article 6 of the Arms Trade Treaty. As long as the arms trade continues between Europe and Coalition countries, human rights violations will continue in the Yemen territory and European states and companies will remain responsible in part for these crimes. ECDHR calls on the EU to hold Saudi Arabia and the UAE accountable, as well as themselves, for the war crimes going on in Yemen as a result of the coalition’s activities.
Conclusions
Over the last eight years, the Saudi-led coalition has been regularly violating IHL and International Human Rights Law in Yemen, thus potentially committing numerous war crimes. The coalition has indeed regularly been targeting civilians and civilian objects, through airstrikes, a blockade, and other acts of violence, thus failing to respect the key principles of distinction, proportionality, and precaution in warfare. By politically and economically supporting members of the coalition, particularly through the supply of munitions by companies from the European Union and the UK, Western States have been aiding those potential war crimes. It is now the utmost responsibility of Western States to condemn those crimes by imposing strong economic and political sanctions on all perpetrators. Finally, investigations and accountability for the crimes committed should be ensured.