Geneva- International human rights expert Dr. Taher Boumedra reviewed his report on human rights about Yemen in Geneva last Monday, which contradicted the report of the experts of the High Commissioner for Human Rights, noting in the introduction of his report that the Commission experts exceeded their basic task as assistants to Yemeni human rights commission . The HR council expert team identified the Houthi coup as a popular revolution giving them official illegitimacy . They violated all UN Security Council resolutions on Yemen, Boumedra said to AIJES.

Full Report:

THE CONFLICT IN YEMEN:

HUMAN RIGHTS, IHL AND RESPONSIBILITY TO PROTECT

Comments on the Report of the UN Group of Experts

By Dr. Tahar Boumedra

Background

The Houthi movement, officially called Ansar Allah (أنصار الله “Supporters of God”), is an Islamic religious-political-armed movement rooted in Sa’dah, northern Yemen. They are of the Zaydi theological school, one of the Shia’a sects closest in terms of theology to Hanafi Sunni Islam. It first emerged as an independent Yemeni movement in the 90’s but gradually moved towards forging an alliance with the Iranian regime and Hizbou Allah in Lebanon.

Under the leadership of Hussein Badr-eddin al-Houthi, the group emerged as a Zaydi opposition to former Yemeni president Ali Abdullah Saleh. Confrontations with Saleh’s government sparked intermittently since 2004. Badr-Addin al-Houthi was killed by Saleh’s forces in 2004. He was succeeded by Abdel Malek al-Houthis.

Tensions flared in January 2015 at the end of the national dialogue conference, brokered by the Gulf Cooperation Council, when a constitution-drafting panel presented the first draft of the constitution. The Houthis rejected provisions about dividing the country into six federal regions. When Hadi refused to concede their constitutional demands, the Houthi rebels stormed the presidential palace and held president Hadi, his prime minister and two other ministers under house arrest. In February, the Houthis declared that Hadi had been replaced with a temporary five-member presidential council.

Hadi fled to Aden on February 21, where he would continue running the country away from the Houti coercive influence. In March 2015, Houthi rebels, supported by Iran, started to advance towards southern Yemen. President Hadi fled again Aden to Saudi Arabia and asked for military support to restore the legitimate government.

A coalition of nine African and Middle Eastern countries lead by Saudi Arabia responded to President Hadi’s call in an operation code-named Operation Decisive Storm. It started a bombing campaign on Houthi rebels and later enforced a naval blockade (Security Council Res. 2216) and the deployment of ground forces. The Houthis claimed that they took power through a popular revolt and are now defending Yemen from a mercenary western backed invasion.

On 15 February 2015, the UN Security Council by its resolution 2201 (2015) acting under chapter VII, reaffirmed:

its strong commitment to the unity, sovereignty, independence and territorial integrity of Yemen (resolution 2201of 15 February 2015);

its commitment to stand by the people of Yemen;

its support for the efforts of the Gulf Cooperation Council and commending its engagement in assisting the political transition in Yemen;

deplored the unilateral actions taken by the Houthis to dissolve parliament and take over Yemen’s government institutions, which have seriously escalated the situation;

expressed alarm at the acts of violence committed by the Houthis and their supporters, which have undermined the political transition process in Yemen, and jeopardized the security, stability, sovereignty and unity of Yemen;

expressed grave concern over reports of the use of child soldiers by Houthi forces, Ansar Al-Shari’a, and government forces.

The Group of Experts however, put the Yemeni conflict in the context of what they called a “popular revolution” against the 33-year rule of Ali Abdullah Saleh (Para 17 of the Report). Putting the ongoing armed conflict in Yemen in the narrow context of a pro-democracy uprising is an opinion of the Group of Experts and does not necessary reflect the reality of the events that started long before the 2011 so called Arab Spring.

Intervention of the Arab Coalition and the Responsibility to Protect (R2P)

The internationally recognised President Hadi, after fleeing from Aden to Saudi Arabia, requested the intervention of the Arab Coalition to protect from the Houthis’ advancing militias. This request was strongly backed by Security Council resolution 2201 (2015). The United States, the United Kingdom and others lent advice and material support to the ‘Operation Decisive Storm’. This operation falls under the principle of ‘responsibility to protect’ (R2P), a concept that emerged after Rwanda’s civil war where, under the peacekeeping leadership of UN, more than 800,000 people were killed in less than 100 days in 1994. A crime of genocide took place under the watchful eyes of the UN peacekeeping forces that badly failed in preventing it and in stopping it.

R2P or Collective Self-Defence?

Article 51 of the UN Charter provides “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations…”

The Houthis militia move from Sa’dah to take over the capital Sana’a and beyond is an armed attack within the meaning of article 51 of the UN Charter, together with the formation of a Houthis Presidential Council to replace the internationally recognized government, is an act of aggression within the meaning of article 39 of the UN Charter which stipulate that “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.

Article 42 stipulates that in case the Security Council considers that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

On this account the Security Council took a number of measures in resolutions 2014 (2011), 2051 (2012), 2140 (2014), 2201 (2015), and 2204 (2015) and most importantly 2216 (2015). All these resolutions were adopted under chapter VII, aimed at restoring the legitimate government, granting support to the Arab Coalition, countering the Houthis’ aggression and restoring law and order.

The Security Council through the above resolutions had pinpointed the root-causes of the conflict, determined the party responsible for obstructing the peace process (the Iranian backed Houthis/Abdallah Salah alliance) and imposed sanctions against them. They bear primary responsibility for the breakdown of law and order, the disintegration of the Yemeni state and the documented violations of the internationally protected human rights and humanitarian principles.

The Findings of the Panel of Experts established by the Security Council (The Panel of Experts)

Resolution 2342 (2017) mandated the Panel of Experts to:

(a) Assist the Security Council Committee with information relevant to the potential designation of individuals and entities who may be engaging in acts that threaten the peace, security or stability of Yemen, as defined in paragraph 18 of resolution 2140 (2014) and paragraph 19 of resolution 2216 (2015);

(b) Gather, examine and analyse information from States, relevant United Nations bodies, regional organizations and other interested parties regarding the implementation of the sanctions measures and targeted arms embargo, in particular incidents undermining the political transition;

(e) Cooperate with other relevant expert groups established by the Security Council, in particular the Analytical Support and Sanctions Monitoring Team established by Council resolution 1526 (2004).

The Situation in Yemen as Depicted by the Panel of Experts

[After nearly three years of conflict, Yemen, as a State, has all but ceased to exist. Instead of a single State there are warring statelets, and no one side has either the political support or the military strength to reunite the country or to achieve victory on the battlefield.

In the north, the Houthis are working to consolidate their hold on Sana’a and much of the highlands after a five-day street battle in the city that ended with the execution of their one-time ally, former President Ali Abdullah Saleh, on 4 December 2017. In the days and weeks that followed, the Houthis crushed or co-opted much of what remained of the former President’s network in Yemen.

In the south, the Government of President Abd Rabbuh Mansur Hadi was weakened by the defection of several governors to the newly formed Southern Transition Council, which advocates for an independent south Yemen. Another challenge for the Government is the existence of proxy forces, armed and funded by member States of the coalition, who pursue their own objectives on the ground. The battlefield dynamics are further complicated by the terrorist groups Al-Qaida in the Arabian Peninsula (AQAP) and Islamic State in Iraq and the Levant (ISIL) (Da’esh), both of which routinely carry out strikes against the Houthis, the Government and Saudi Arabia-led coalition targets.

The launch of short-range ballistic missiles, first by forces of the Houthi-Saleh alliance and subsequently, following the end of the alliance, by Houthi forces against Saudi Arabia, changed the tenor of the conflict and has the potential to turn a local conflict into a broader regional one.

The Panel has identified missile remnants, related military equipment and military unmanned aerial vehicles that are of Iranian origin and were brought into Yemen after the imposition of the targeted arms embargo. As a result, the Panel finds that the Islamic Republic of Iran is in non-compliance with paragraph 14 of resolution 2216 (2015) in that it failed to take the necessary measures to prevent the direct or indirect supply, sale or transfer of Borkan-2H short-range ballistic missiles, field storage tanks for liquid bipropellant oxidizer for missiles and Ababil-T (Qasef-1) unmanned aerial vehicles to the then Houthi-Saleh alliance.

The Houthis have also deployed improvised sea mines in the Red Sea, which represent a hazard for commercial shipping and sea lines of communication that could remain for as long as 6 to 10 years, threatening imports to Yemen and access for humanitarian assistance through the Red Sea ports.

Yemen’s financial system is broken. There are competing central banks, one in the north under the control of the Houthis, and one in the south under the control of the Government. Neither is operating at full capacity. The Government is unable to effectively collect revenue, while the Houthis collect taxes, extort businesses and seize assets in the name of the war effort.

Yemen has a liquidity problem. Salaries throughout the country often go unpaid, meaning that medicine, fuel and food, when available, are often prohibitively expensive. New profiteers are emerging as a result of the war and the black market now threatens to eclipse formal transactions].

The Findings of the Group of Independent International and Regional Experts on Yemen (The Group of Experts)

Unbalanced Reporting

Paragraph 28 of the Group of experts attributes most of the documented civilian casualties to the Coalition air strikes and devotes 13 paragraphs (27-39) to the Coalition air strikes while addressing mortar shelling, land and sea mining, sniping, indiscriminate shooting and missile launching by the Houthis/Saleh insurgents and other militias and terrorist groups in 6 paragraphs (40-45).

The Group of Experts, contrary to the Security Council resolutions and the findings of the Panel of the Experts, puts the conflict in Yemen in the context of the Arab spring as a popular uprising against the 33-year rule of Ali Abdullah Saleh. The Group of Experts failed to put the conflict in its proper historical context of the Houthi movement challenging the Yemeni central government in view of re-establishing the hereditary Imama as a form of governance. It does not mention that the Houthis had gone into armed conflict against the Government 6 times since 2004.

The Report of the Group of Experts used ambiguous terms to identify the parties to the conflict. ‘Pro-government forces’ to refer to actors fighting against the Houthis-Saleh forces. In reality there are governmental forces assisted by the coalition forces acting with the support of the Security Council. For fairness of the report, it is imperative to underline the legality of these forces.

On the other hand the Houthi militia are referred to as the ‘de facto authorities’. This terminology grants the Houthis a special status that open the way for their recognition as a parallel government.

Furthermore, by using these two terms to distinguish between the forces in conflict, the report had taken out of the equation a number of other actors, such as the terrorist groups Al-Qaida in the Arabian Peninsula (AQAP) and Islamic State in Iraq and the Levant (ISIL) (Da’esh) who are fighting against both governmental and Houthi forces.

In its paragraph 17, the Report referred to the ‘popular revolution’ of 2011 as starting point of the conflict. The reality is that those who rose against the rule of Ali Abdellah Saleh are not those who took up arms to topple the legitimate government of Yemen, occupied Sana’a and established their own Government. The Conflict between the Iranian backed Houthis and the central government started much earlier than that.

Paragraph 13 states that “The government retains positive obligations [in respect of its international human rights obligations] in areas where it has lost effective control”. This statement is contrary to international law of armed conflicts. International law of armed conflict recognizes situations where a rebellion rises against the government without controlling a territory and without having an organised army that applies the rules and customs of war. This is known as a state of insurgency and is subject to the domestic laws including domestic criminal law.  When the conflict develops and the insurgents get organised with a regular army and exercise effective control of a territory, they are treated as belligerents. Belligerents being the de facto authority of the territory under their control are bound by the rules and customs of war independently from the recognised government and are responsible for the protection of human rights and humanitarian principles and other international obligations contracted by the state.

The Group of Experts is mandated to examine all alleged violations and abuses of international human rights and other appropriate and applicable field of international law. International law of armed conflict has two main branches, namely jus ad bellum, i.e. the rules regulating resort to use force by belligerent parties (in self defence, collective self defence or when authorised by the UN). The other branch is the jus in bello, i.e the regulations of the conduct of the belligerent actors in time of armed conflicts also referred to as International Humanitarian law as codified in the 4 Geneva conventions and their two additional protocols. ICRC is the depository of the Geneva Conventions and is universally recognised in monitoring IHL.

In terms of accountability, violations coming under the jus ad bellum are considered crimes of aggression. The use of force in threat of international peace and security if determined as such by the Security Council under Article 39 of chapter 7 of the Charter, it constitutes the fourth crime falling under the jurisdiction of the International Criminal Court (ICC).

The Group of Experts had in its report overlooked this issue. It had restricted itself to examine issues of jus in bello, namely human rights and humanitarian law and omitted the examination of the issues of jus ad bellum, in the instance the illegal use of force as the fourth crime falling under the ICC’s jurisdiction.

Protection of Civilian Objects, Rule of Proportionality and Collateral Damage

To determine civilians and civilian objects is not an easy task. In a war zone, no legal presumption of civilian status exists for persons or objects under customary international law. What level of certainty is required for a commander to consider a person or object a legitimate military target when flying at supper sonic speed and at a height reducing visibility? The military codes of the United States and of most countries that operate according to military codes compatible with the 4 Geneva Conventions provide no clear guidelines.

The Group of Experts made no attempt to address this issue and gave no indication whether they actually studied the military codes of members of the coalition and made no recommendation in this direction, even though it entails serious consequences on the officer who took the action that caused civilian casualties, whether targeted as such or suffered as collateral damage.

Other than in law enforcement operations, there is no general principle of proportionality applicable to the conduct of hostilities during an international or non-international armed conflict. The rules and principles of international humanitarian law themselves are the product of balancing humanity and military necessity. There are, however, some rules that explicitly require the parties to an armed conflict to apply a specific proportionality test, such as the prohibition of unnecessary suffering and casualties with no military advantage.

The Group of Expert seems to have focused on the applicability of human rights and IHL in time of peace not in time of war.

The Group of Experts Interaction with the Joint Incidents Assessment Team (JIAT)

The experts reviewed the summaries of 71 incidents investigated by the JIAT, the investigation team established by the Coalition in response to allegations of air strikes affecting civilians or civilian objects.

The group of experts failed to pinpoint the applicable rules of customary IHL or the Geneva conventions that have been violated and overlooked by the JIAT.

Mapping of Actors in the Conflict

The report provides names of the decision makers in the chain of command of the parties to the conflict. This list sends a strong public message that the named actors could be considered suspects of crimes of war and crimes against humanity and could be held accountable accordingly. This bold action of the experts is unprecedented, it is feared that it might constitute an obstacle to maintaining working relations with the named decision makers while the conflict is ongoing. It is difficult to expect cooperation from Saudi Arabia and other members of the Coalition when their top leadership are listed as potential war criminals.

It is admitted that in certain situations human rights’ monitors, as a last resort, name and shame suspect perpetrators of crimes against humanity. However, publically naming and shaming is not always the wisest way of addressing complex human rights situations. The ongoing conflict in Yemen gathers all the ingredients to turn into a full scale regional war. The Group of Experts should have given consideration to the ongoing process for the restoration of peace and security to prevent further abuses and violations and should not have neglected a reflection on how to implement all aspects of international law, both (jus ad bellum and jus in bello) as mandated by the Human Rights Council (Res.36/31). And most importantly, they should have emphasized that the earlier the war is stopped the better human rights and humanitarian principles are upheld and protected. AIJES