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Yemen through a legal lens

Yemen is in the midst of an internal armed conflict. The Houthi rebels forced the Saudi-backed president Abd-Rabbu Mansour Hadi to flee the capital to Aden in the south.From Aden, the president called for the intervention of the Gulf Cooperation Council.

The conflict between the Houthis and Hadi’s government is viewed as part of a regional proxy war between Iran and Saudi Arabia. After rebel forces closed in on the president’s southern stronghold of Aden last month, a coalition led by Saudi Arabia launched air strikes on Houthi strongholds and bases. The coalition comprises Jordan, Egypt, Morocco and Sudan, with Saudi Arabia exerting pressure on Pakistan to formally join the coalition.

Yemen is a nation in the throes of civil war and perhaps in the process of regime change. But Yemen as a state fully enjoys the protections of Article 2(4) of the United Nations Charter, under which “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”. Pakistan is debating this but appears indecisive.

Further, all states are bound by the principle of non-intervention in the internal affairs of other states. This is a customary international law norm, which is explicitly detailed in Article 2(7) of the UN Charter. In other words, no state has the right to violate the sovereignty of Yemen by using armed force unless certain exceptional circumstances are present.

There are very few instances when the use of force against another state is not classified as an unlawful armed attack prohibited under international law. Firstly, intervention is justifiable if a state exercises its inherent right of self-defence under Article 51 of the UN Charter in response to an armed attack. Under customary international law, self-defence is limited by the requirements of necessity and proportionality. The rule is that only when the danger posed to a state “is instant, overwhelming, leaving no choice of means, and no moments for deliberation can a state respond”.

There are very few instances when the use of force against another state is not classified as unlawful. Further, the International Court of Justice, in a number of seminal cases, has observed that only a state is capable of committing an armed attack. Attacks of non-state actors can only be attributed to the state when the latter effectively controls, directs and commands non-state actors.

Saudi Arabia does not recognise the rebels as a legitimate government, so it cannot argue that it is acting in self-defence against a hostile state. In any case, there is no indication that Houthi forces are targeting Saudi forces outside of Yemen.

A second premise for intervention would be if the UN Security Council passes a binding resolution under Chapter VII of the UN Charter. The Security Council could make a determination that the civil war in Yemen poses a threat to international peace and security under Article 39 of the Charter. It could then order the use of force under Article 42, and direct member states to intervene in order to maintain or restore international peace and security. However, the chances of such a binding resolution being passed in Saudi Arabia’s favour are remote, keeping in mind that Russia or China would veto it.

Thirdly, an intervention would not violate the sovereignty of Yemen if the incumbent government consents to or invites external military intervention. According to the International Law Commission, a state can legally consent to a foreign military presence or request military assistance on its territory against rebel groups. This principle has been reaffirmed by the International Court of Justice. However, such assistance can only be lawfully provided if the incumbent government requesting it exercises ‘effective control’ over its territory.

In this regard, state practice seems to show that the recognised and incumbent government’s will is accorded substantial deference, even when the government has lost control over substantial portions of its territory. However, under international law, it no longer enjoys effective control if it loses control over the capital city and is in “imminent danger of collapse”.

Yemen is in the midst of the latter, where the capital city and sizeable chunks of territory are under the rebels. Control enjoyed by Hadi is limited to Aden and that too is not far from collapse. Therefore, legally speaking, relying on the president’s consent for military intervention is highly problematic.

Doctrines such as the ‘responsibility to protect’ (R2P), ‘humanitarian intervention’ and ‘democratic intervention’ have been suggested as justifications for intervention in Yemen. These doctrines could allow for external military intervention on the premise that the Yemeni state is violating its responsibility to protect the human rights of its population. Such doctrines have not attained the status of international law and are often misused for accomplishing regime change.

At times, humanitarian intervention has been termed ‘imperialist intervention’. For many observers, such was the case in Libya when Muammar Qadhafi was ousted. In relation to the conflict in Syria, China and Russia have prevented any Security Council resolution sanctioning the use of force on the basis of these doctrines. Interestingly, the doctrine of R2P has been used to defend drone strikes in Pakistan — to rid Fata of the menace of the Taliban as Pakistan has failed to protect the human rights of its local Fata population.

Finally, can Pakistan act in ‘self-defence’ of Yemen? Self-defence under the UN Charter includes both the right of individual and collective self-defence. An example of the latter would have been if Pakistan had entered into a pact with Yemen earlier — when its government enjoyed effective control over its territory— to come to its aid if its sovereignty was threatened. As far as we know, Pakistan never entered into any such treaty and it cannot enter into one with a third state like Saudi Arabia, because only a sovereign state itself has the legal authority to do so. Pakistan should, therefore, stay away from this war. It will end up violating international law by participating in hostilities.

The writer is the author of International Law and Drone Strikes in Pakistan: the legal and socio-political aspects.

Sikander Ahmed Shah, "Yemen through a legal lens," Dawn. 2015-04-06.
Keywords: Political science , Political issues , Political relations , International relations , Political conflicts , International law , International peace , Human rights , Civil war , Muammar Qadhafi , Abd Rabbu Mansour , Saudi Arabia , Pakistan , Yemen , Iran , Egypt , Russia , China , FATA