Master’s thesis
University of Amsterdam
Amsterdam Graduate Law School
International humanitarian law in a
political discourse:
An assessment of the way in which states interpret rules of
international humanitarian law that best serves their interest
Author: Maarten ten Have
E-mail: maartenrth@hotmail.com Student number: 10727760
Mastertrack: International and European Law (public international law) Supervisor: Prof. dr. T.D. Gill
Abstract
States may interpret the law in a way that best serves their interests, since law can have a legitimizing function and coating political interests in legal argumentation may improve the position of states in the political sphere. The ICRC calls this phenomenon the politicization of IHL and argues how the politicization of IHL goes against the purpose of IHL for multiple reasons. At the same time, the politicization of IHL might be partially or completely inevitable. Accordingly, the research question this thesis focuses on is as follows: “to what extent are political considerations legally permissible when states interpret rules of international humanitarian law?”. The research question is answered from a mix of a legal perspective and a more political perspective. In the legal perspective, an assessment will be made of the extent to which the legal regime of IHL allows for political considerations in the interpretation of rules of IHL. This assessment is based on Kelsen’s positivist argument that proclaims that subjective interpretations from a political viewpoint are inadmissible as correct interpretations of the law. In the more political perspective, an assessment will be made of the extent to which the rules of IHL and the interpretations thereof can be considered to be legitimate by measuring the level of determinacy and symbolic validation of the rules of IHL. The higher the level of these indicators, the more compliance and therefore the less politicized interpretations in pursuit of states’ self-interest is expected, which strengthens the legality of the rules and the interpretations thereof. The analysis shows how rules of IHL generally seem to allow for different interpretations of a rule, and how some rules even allow for justifications for not complying with the rule. However, while these justifications sometimes coincide with the political interests of states, the rules themselves seem not to allow for politicized interpretations because politicized interpretations are hardly ever made in good faith. The most important factor in legally interpreting rules of IHL, therefore, is to do so in good faith and since politicized interpretations are not good faith interpretations, the conclusion of this thesis is that political considerations cannot be considered legally permissible when states interpret rules of IHL.
Acknowledgements
I would like to express my sincere gratitude to my thesis supervisor, Prof. Terry Gill. The conversations with Prof. Gill have been very insightful and steered me in the right direction, while at the same time he always allowed this thesis to be my own work. Thank you for your guidance.
I would also like to acknowledge Jeroen van den Boogaard as the second reader of this thesis, and I am grateful for the valuable comments and insights he gave me on the subject of this thesis.
Table of contents
1. Introduction page 5
2. Theoretical framework page 10 2.1.1. General remarks on legal perspective page 10 2.1.2. Law applicable to the number of civilian casualties in armed conflicts page 11 2.1.3. Law applicable to the use of human shields in armed conflicts page 13 2.1.4. Law applicable to the use of certain modern weapons in armed conflicts page 15 2.2. Political perspective on the legitimacy of state actions in international law page 18
3. Analysis page 21 3.1. General introduction to the armed conflict in Yemen page 21 3.2. The number of civilian casualties in armed conflicts page 22 3.3. The use of human shields in armed conflicts page 27 3.4. The use of certain weapons, such as drones, in armed conflicts page 30
1. Introduction
The International Committee of the Red Cross (hereinafter: ICRC) has determined that public awareness of international humanitarian law (hereinafter: IHL) and its basic rules has grown in the last two decades, which also means that violations of these rules have become more visible to the general public. While this increased awareness certainly has its advantages, since having 1
knowledge of the rules of IHL is a prerequisite to better implementation of the legal regime , it 2
could also cause serious disadvantages. When a legal regime enters the public domain, the risk of politicized interpretations and implementation of the rules of that legal regime also increases. With 3
regards to possible politicized interpretations and implementations of IHL, the ICRC asserts how “states have occasionally denied the applicability of IHL to certain situations even though the facts on the ground indicated that an armed conflict was taking place, or how states have broadened the scope of application of IHL in situations that could not be classified as an armed conflict”. 4
According to Petrov, states can have certain interests when interpreting rules of IHL, such as legitimizing their own actions and stigmatizing the actions of adversaries. Doing so could affect 5
public opinion and the political discourse since the label of legality or illegality makes for a strong argument, which is why it makes sense that states in an armed conflict concern themselves with certain interests when interpreting rules of IHL and then coat these interests in legal argumentation. 6
Since law can have a legitimizing function, this form of legal argumentation may improve the position of states in the political sphere. It is therefore not surprising that states may interpret the 7
law in a way that best serves their interests, and this is what the ICRC describes as the politicization of IHL. Following this description by the ICRC, and bearing the argument made by Petrov in mind, politicized interpretations of rules of IHL will be defined in this thesis as “politically motivated interpretations of the rules of IHL, in which the political interest of the state that interprets the rule of IHL is the leading factor in the outcome of the interpretation”.
ICRC 2007, p. 720 1 ibid. 2 ibid. 3 ibid. 4 Petrov 2015 5 ibid. 6 ibid. 7
The politicization of IHL goes against the purpose of IHL for multiple reasons. The ICRC points out that politicized interpretations can have direct and negative effects on the lives and livelihoods of those who IHL is attempting to protect, such as civilians and combatants who have laid down their arms, when IHL is not or only selectively applied in a certain situation. Selectively applying the 8
rules of IHL also leads to a fragmentation of the body of rules, which is at odds with the humanity principle of IHL. This principle forbids the use of all violence that is not necessary for achieving 9
the legitimate goals in an armed conflict. In this regard, the ICRC said that this core principle of 10
IHL must be applied “equally to all victims of an armed conflict if it is to retain its meaning”. 11
Thirdly, politicized interpretations by a state will likely also have an effect on its own civilians or combatants if the adversary reciprocally also politicizes IHL and interprets rules in that state its interests. Finally, Sassoli mentions that politicized interpretations also defeat the purpose of IHL 12
because it may give the impression that IHL need not be respected in actual warfare. This, in turn, 13
might result in the weakening of the credibility of the rules of IHL, because the less respect there is for the rules of IHL, the less protection there is for the persons IHL is attempting to protect. 14
These concerns lead me to believe that the politicization of IHL is problematic. However, the politicization of IHL might be partially or completely inevitable. For one because legal rules always have to be interpreted, and it makes sense that the subject interpreting the rules does so in light of its own interests. Interpreting legal rules this way is not necessarily illegal, if not even a natural characteristic of legal regimes, as long as it does not cross a certain line. When looking at IHL specifically, one must also note that armed conflicts are situations that are chaotic, as opposed to other situations that law facilitates, and it would be surprising if IHL were perfectly respected in such a situation. It also is questionable whether it is possible for states to objectively interpret 15
rules of IHL, as they themselves make the rules of IHL and at the same time are the addressees of the rules , especially since there can be numerous interests involved in armed conflicts. While the 16
ICRC 2007, p. 720
8
ICRC 2007, p. 721
9
Greenwood [In Fleck 2013], p. 37; ICRC 2015
10 ICRC 2007, p. 721 11 ibid. 12 Sassoli 2007, p. 4 13 ibid. 14 Sassoli 2007, p. 3 15 Petrov 2015 16
absence of third party adjudication and enforcement is, of course, an inherent problem within all branches of public international law, IHL in my opinion deserves special attention because politicized interpretations of rules of IHL might have unjust and extremely severe consequences for the people affected by armed conflicts. This topic therefore calls for a study into what is legally permissible for states when they interpret rules of IHL and what is not, into what are so-called “natural” interpretations of rules of IHL and which interpretations cross the line and must be deemed illegal. Accordingly, the research question this thesis focuses on is as follows: “to what extent are political considerations legally permissible when states interpret rules of international humanitarian law?”.
The answer to this research question, as well as the arguments that will be made in this thesis, will differ depending on the underlying assumptions the author has on legal theory. Because of this, it is important to note beforehand that, in this thesis, the underlying assumptions on legal theory are positivist assumptions. Kelsen’s positivist argument on correct legal interpretation will form the basis of this thesis. Kelsen argued that legal interpretations can differ from each other, and that there may be more than one objectively correct interpretation of a certain rule from a legal scientific point of view. Kelsen admitted that this fiction can have great advantages from a 17
political point of view, when an actor tries to proclaim a politically motivated interpretation as correct while the sole goal of that interpretation is to influence that rule in one’s favour. From a 18
scientific point of view, however, Kelsen argued that no political advantage can justify this subjective use of the notion that multiple legal interpretations can be correct, since doing otherwise would mean that a purely political value judgement would be falsely presented as an objective legal truth. According to Kelsen’s positivist logic, it is thus inadmissible to proclaim subjective 19
interpretations from a political viewpoint as the correct interpretations of the law. From this 20
argument it can be inferred that politicized interpretations can, in certain circumstances, be declared legally impermissible when states interpret rules of IHL, thus justifying the objective of this thesis to determine the extent to which political considerations are legally permissible when states interpret rules of IHL.
Kelsen 2008, p. 356 17 ibid. 18 ibid. 19 ibid. 20
Furthermore, this research question can be answered from a legal perspective alone, since an assessment of the legality of political considerations in the interpretation of rules of IHL can then be made. The legal perspective will then consist of an assessment of the extent to which the legal regime of IHL allows for political considerations in the interpretation of rules of IHL. However, because the topic of this study is also political in nature, a mix with an assessment from a more ‘political’ perspective is also called upon. The political perspective will study the legitimacy of the political considerations in the interpretations by states of rules of IHL. As Sassoli mentioned, politicized interpretations of IHL may lead to the weakening of the rules of IHL, because IHL then might need not be respected in actual warfare. This correlates with whether these interpretations can be considered as being legitimate. The law and the interpretation thereof cannot be respected if considered to be illegitimate, which a contrario means that legitimate legal interpretations can strengthen the legality of the interpretation. 21
It follows that the next chapter will not only provide an overview of (literature on) relevant treaty provisions, rules of customary international humanitarian law (hereinafter: CIHL) and case law, but also a brief overview of theory on the legitimacy of state actions in respect of international law. In the third chapter, then, three topics within the area of IHL of which rules have been subject to political considerations from states in their interpretations will be analyzed.
These must be topics that are relevant to the public perception of IHL, as states will be more inclined to use politicized interpretations in these areas. The first topic with which the general public is concerned is the number of civilian casualties that result from armed conflicts. Disproportionally high numbers of civilian casualties in an armed conflict normally raise a lot of resistance from the general public, because of which this topic is susceptible for politicized interpretations. Another topic with which the general public is concerned, is the use of human shields in armed conflicts. Exploiting civilian populations like this by exposing them to harm is seen as evidence of disproportionality in an armed conflict. Besides, human shielding has become 22
used regularly in contemporary armed conflicts. One of the reasons for this is that today’s 23
possibility of spreading images of civilian casualties enhances the effectiveness of human shields in precluding attacks. Both the nature and the effect of human shielding lead to this topic raising 24
Popovski & Turner 2008, p. 1
21
Rubinstein & Roznai 2011, p. 94
22
Schmitt 2009, p. 294
23
Schmitt 2009, p. 318
resistance from the general public if it is used in an armed conflict, making it a suitable topic for analyzing politicized interpretations with. The final topic with which the general public is generally concerned, is the use of certain modern weapons in armed conflicts, most notably drones. The use of drones has proved controversial, as concerns on ethical, moral and political grounds exist when drones are used. Besides, the perceived lack of transparency and accountability surrounding the 25
use of lethal force by drones might also be ground for concern. Because of these concerns 26
surrounding the use of drones, this topic as well is susceptible for politicized interpretations.
In this study, these three topics will be analyzed in the context of the contemporary armed conflict in Yemen in order to make the subject of this thesis more concrete. An answer to the research question will then, to conclude with, be given in the last chapter.
Weizmann 2013, p. 33
25
ibid.
2. Theoretical framework
This chapter is divided into two sections. The first section provides an overview of (literature on) treaty provisions, rules of CIHL and case law that are relevant for the analysis of the three topics that are to be studied in this thesis. The second section provides a brief overview of theory on the legitimacy of state actions in respect of international law. This legal and more political framework will then constitute the basis on which, in the third chapter, an assessment will be made of the way in which states interpret rules of IHL that best serves their interest.
2.1.1. General remarks on the legal perspective
Before the legal perspective as such is discussed, a few remarks must be made. As was mentioned in the introduction, the three topics that are to be studied will be studied in the context of the armed conflict in Yemen. While relevant aspects of this armed conflict will be discussed more in-depth in the next chapter, it must be noted in this chapter already that this armed conflict is classified as a non-international armed conflict (hereinafter: NIAC). Because of this classification, the legal 27
perspective in this chapter will consist of an overview of the (relevant) law of NIACs. However, since most of the law of NIACs will also be applicable in an international armed conflict (hereinafter: IAC), the conclusion of this thesis will largely be generalizable to IACs as well.
Within the law of NIACs, there are some rules that are applicable to each of the three topics that are to be studied in this thesis. Because Yemen is a party to the four 1949 Geneva Conventions, all parties to the conflict are bound by article 3 common to the 1949 Geneva Conventions. This 28
article provides for the minimum standard of fundamental protection to be respected and requires, in short, humane treatment of all persons not or no longer taking active parts in hostilities. 29
Furthermore, Yemen also is a party to the 1977 Additional Protocol II which is applicable to NIACs. Given that the warring parties, such as the Houthis, have the ability to exercise territorial control over large parts of Yemen suggests that they fulfill the required criterion of article 1 of Additional Protocol II for the applicability of said Protocol. All parties to the conflict are, finally, bound by 30
CIHL which is applicable to NIACs. One rule of CIHL that is applicable to all thee topics is rule 31
Rulac Geneva Academy 2018
27
Rulac Geneva Academy 2018
28
Article 3 common to the 1949 Geneva Conventions
29
Rulac Geneva Academy 2018; article 1(1) Additional Protocol II
30
Fleck 2013, p. 587
139, which requires that all parties to an armed conflict must respect and ensure respect for IHL. This obligation does not depend on reciprocity and thus means that compliance with IHL must not be enforced by denying protection to victims of an armed conflict. If the parties to an armed 32
conflict all encourage respect for IHL, this then creates a climate for compliance with IHL and is therefore an important rule to adhere. 33
A final rule that is of relevance for analyzing the interpretations made within the three topics, is of general public international law and is the first paragraph of article 31 of the 1969 Vienna Convention on the Law of Treaties, which stresses the importance of acting in good faith when rules of IHL are interpreted by proscribing that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. When interpreting a rule, the starting-point is the treaty itself, with interpretation proceeding from the more concrete and obvious (such as the meaning of the words) to the less concrete and less obvious (such as the object and purpose of the treaty) in order to justifiably determine the meaning of the text. 34
2.1.2. Law applicable to the number of civilian casualties in armed conflicts
Turning to the law applicable to the first topic that is to be studied, the number of civilian casualties in armed conflicts, the first applicable rule is rule 1 of CIHL. This rule sees on the obligation to distinguish civilians from combatants at all times, and that attacks may only be directed against combatants and not against civilians. Civilians, according to rule 5 of CIHL, are persons who are not members of the armed forces. Armed forces, then, are defined in rule 4 of CIHL and consist of all organized armed forces, groups and units which are under a command responsible to the state party for the conduct of its subordinates. Further protection is provided by rule 6 of CIHL and rule 13 of Additional Protocol II, which both provide that civilians are protected against attacks and dangers arising from military operations, unless and for such time as they take a direct part in hostilities. One of the consequences of the principle of distinction between civilians and combatants was mentioned in the Galic judgment of the International Criminal Tribunal for the Former Yugoslavia (hereinafter: ICTY). In this decision, the ICTY decided that “the practical application of the principle of distinction requires that those who plan or launch an attack take all feasible
Fleck 2013, p. 608 32 Fleck 2013, p. 609 33 ILC 2006, p. 234 34
precautions to verify that the objectives attacked are neither civilians nor civilian objects, so civilians are spared as much as possible”. This is in line with the basic rule on precautions in 35
attack that is established in rule 15 of CIHL, and corresponding specific obligations that arise from rule 16 of CIHL, which prescribes that each party to an armed conflict must do everything feasible to verify that targets are military objectives, and article 22 of CIHL, which sees on the obligation to take feasible precautions before an attack is launched in order to protect the civilian population and civilian objects.
The principle of distinction between civilians and combatants also leads to other obligations in rules of customary nature. Article 11 of CIHL, for instance, prohibits indiscriminate attacks. These are attacks that strike civilians or civilian objects and military objectives without distinction, following the definition the ICTY provided in the Galic decision. Rule 12 of CIHL then 36
establishes the kinds of indiscriminate attacks. These are either attacks which are not directed at a specific military objective; or attacks which employ a method or means of combat which cannot be directed at a specific military objective; or which employ a method or means of combat the effects of which cannot be limited as required by IHL.
Furthermore, indiscriminate attacks also violate the principle of proportionality that is established as rule 14 of CIHL. The principle of proportionality prohibits attacks that are expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage sought by the attack. It is important to note here that the rule sees on the incidental character of such loss, injury or damage to civilians. Intentional loss, injury or damage to civilians always violates IHL and always constitutes a war crime. Multiple factors have to be taken into account when determining whether an attack was proportionate or not. The ICTY in Galic concluded that in order to assess the proportionality of an attack, it is necessary to “examine whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack”. The ICTY also emphasized that this test has to be conducted 37
Prosecutor v. Stanislav Galic (Judgement and Opinion), IT-98-29-T, International Criminal Tribunal for the Former 35
Yugoslavia (ICTY), 5 December 2003, para. 58
Prosecutor v. Stanislav Galic (Judgement and Opinion), IT-98-29-T, International Criminal Tribunal for the Former 36
Yugoslavia (ICTY), 5 December 2003, para. 57 ibid.
on the basis of the military advantage that was anticipated at the time of the attack, and not in hindsight after the attack has taken place and the military advantage is actually known. 38
The ICTY further interpreted the law on proportionate attacks in the Kupreskic judgement. According to the ICTY, the principle of proportionality must be interpreted “so as to construe as narrowly as possible the discretionary power to attack belligerents and so as to expand the protection accorded to civilians”. In the same judgement, the ICTY considered this rule in the 39
context of the cumulative effect of attacks on military objectives causing incidental damage to civilians. It may be that one attack on a military objective might be proportionate to the incidental 40
loss or damage to civilians, but when similar attacks repeatedly occur, these attacks then may become unlawful. This means that the principle of proportionality requires that knowledge of the 41
incidental loss or damage to civilians from previous attacks has to be taken into account before launching a new attack. 42
2.1.3. Law applicable to the use of human shields in armed conflicts
The second topic that is to be studied is the use of human shields in armed conflicts. The ICRC defines the use of human shields as “the intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives”. Human shields are not allowed, as established in rule 97 of CIHL, because the 43
adversary would otherwise be in a position where he would have to choose between attacking protected civilians in an otherwise lawful military operation and relinquishing a possible military advantage, and putting an adversary in this position is contrary to the protection granted to the civilian population. Mere co-location of civilians and military objectives does not constitute using 44
a human shield, since the prohibition on the use of human shields requires the specific intent to
Prosecutor v. Stanislav Galic (Judgement and Opinion), IT-98-29-T, International Criminal Tribunal for the Former 38
Yugoslavia (ICTY), 5 December 2003, para. 58
Prosecutor v. Zoran Kupreskic (Trial Judgement), IT-95-16-T, International Criminal Tribunal for the Former 39
Yugoslavia (ICTY), 5 December 2003, para. 525
Prosecutor v. Zoran Kupreskic (Trial Judgement), IT-95-16-T, International Criminal Tribunal for the Former 40
Yugoslavia (ICTY), 5 December 2003, para. 526 ibid. 41 Bonomy 2013, p. 37 42 ICRC 2005, p. 340 43
Gasser & Dörmann [In Fleck 2013], p. 241
prevent attacks by deliberately collocating military objectives and civilians. Intent might prove 45
difficult to identify in practice, but in some cases can be deduced circumstantially. 46
In the commentary to rule 97 of CIHL, the ICRC notes that the prohibition on the use of human shields falls within the scope of the protection that is provided to civilians by rule 6 of CIHL and rule 13 of Additional Protocol II, unless and for such time as they take a direct part in hostilities. The ICRC established three cumulative criteria for a specific act to qualify as direct 47
participation in hostilities:
“1) the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm); 2) there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part (direct causation); and 3) the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)” 48
Because of the notion of direct participation in hostilities, the distinction between voluntary and involuntary human shields becomes relevant. Involuntary human shields are civilians who are, against their own will, used as a human shield. This situation certainly falls under the prohibition on the use of human shields. More complicated is the use of voluntary human shields, which are situations when civilians of their own free will protect military objectives . It is debated whether 49
these civilians are then directly participating in military hostilities and therefore lose the protection that was granted to them by rule 6 of CIHL and rule 13 of Additional Protocol II. The ICRC holds 50
the position that these civilians could, in some circumstances, cause the threshold of harm required for qualification as direct participation in hostilities, while at the same time the ICRC notes how, in practice, voluntary shields are seen as a legal, rather than a physical obstacle to military operations. This could be interpreted as that the conduct of these civilians does not amount to 51
Independent International Fact-Finding Mission on the Conflict in Georgia 2009, para. 81
45 Schmitt 2009 p. 303 46 ICRC 2005, p. 340 47 ICRC 2008, p. 1016 48 Quéguiner 2006, p. 815 49 Schmitt 2009, p. 316 - 322 50 ICRC 2008, p. 1024 51
direct participation in hostilities because they are protected from attack and thus not directly participate in hostilities. If civilians in voluntary shields would qualify as directly participating in 52
hostilities, this would mean that the attacker would not have to factor them into proportionality and precautions in attack calculations. Whether or not a voluntary human shield results in directly 53
participating in hostilities would likely depend on the circumstances, but in any case these civilians have an increased risk to being exposed to dangers of military operations. 54
Another rule that is of relevance to the use of human shields is rule 23 of CIHL, that obligates each party to an armed conflict to avoid locating military objectives within or near densely populated areas to the extent that this is feasible. The caveat in this rule “to the extent feasible” recognizes that there might be circumstances of war that can change rapidly, because of which military objectives cannot in all circumstances be avoided to be located within or near densely populated areas. Closely related to rule 23 of CIHL is rule 24 of CIHL, which requires each party 55
to an armed conflict to remove civilian persons and objects under its control from the vicinity of military objectives. With regards to this obligation, the ICTY in the Galic judgement noted that failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack. Further case law that 56
is related to the topics of human shields is scarce.57
2.1.4. Law applicable to the use of certain modern weapons in armed conflicts
States have always developed new weapon systems. With each new weapon system developed, a debate can emerge on whether existing international law is sufficient to address the legality of the use of those new weapon systems. This section will be devoted to the law applicable to the use of 58
one particular modern weapon system, namely drones. Drones are unmanned, remotely directed weapons platforms which can perform different functions such as conducting surveillance or
ibid. 52 Schmitt 2009, p. 336 53 ICRC 2008, p. 1025 54 Schmitt 2009, p. 304 55
Prosecutor v. Stanislav Galic (Judgement and Opinion), IT-98-29-T, International Criminal Tribunal for the Former 56
Yugoslavia (ICTY), 5 December 2003, para. 61 Schmitt 2009, p. 309
57
Weizmann 2013, p. 35
attacks. The use of drones is attractive because they provide a strategic advantage, since drones 59
make it possible to deploy deadly force against a remote target without risking dangers to one’s own forces. It has been argued that due to its technology, drones might help to conduct attacks more 60
precisely against military objectives. 61
The use of drones has also proved controversial, however, as was mentioned in the introduction. One of the perceived concerns surrounds the lack of transparency and accountability surrounding the use of lethal force by drones. Legal and political accountability is dependent on 62
transparency, which can be defined as “the public access to the relevant information”. A lack of 63
transparency will therefore result in a lack of accountability. Transparency in the use of drones requires that “the criteria for targeting and the authority which approves the use of lethal force must be known”, and that the use of drones “must be brought within institutions which are able to disclose to the public the methods and findings of their intelligence”. 64
Despite these concerns, there generally is consensus that drones as such are not illegal weapons in the sense that drones do not possess any characteristics that violate rules of IHL. 65
However, as all weapons, drones can be employed in a manner that is unlawful under IHL. For instance, if a drone is used in an attack which causes excessive civilian casualties in relation to the military advantage sought by the attack, the drone attack would then be illegal since such an attack violates the proportionality principle as established in rule 14 of CIHL.
The law applicable to the use of drones in armed conflicts, therefore, relates to the rules that apply to the general process of targeting under IHL. The principle of distinction and proportionality partially set out relevant rules that apply to the process of targeting and the most important rules on these two principles have been discussed in the previous sections of this chapter. The use of drones always has to be consistent with the rules of distinction and proportionality if it is to be lawful, but these are not the sole rules of IHL that apply to the process of targeting. With the principle of distinction and proportionality also comes the duty to take precautionary measures in attacks and against the effect of attacks. The basics of this duty are in rule 15 of CIHL, which provides that “in
ICRC 2018 [Drones]
59
Heyns and others 2016, p. 792
60
Weizmann 2013, p. 35
61
Weizmann 2013, p. 33
62
Heyns and others 2016, p. 817
63
Heyns and others 2016, p. 818
64
Heyns and others 2016, p. 793
the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects. Corresponding specific obligations are contained in rules 16 - 22 of CIHL, examples of which were mentioned in an earlier section in this chapter.
The caveat “constant” in rule 15 of CIHL already gives away that the obligation to take precautions in attack consists of multiple obligations, with each of these obligations being relevant for a different stage in the targeting process and each obligation leading to a different selection of the means, methods and target of the attack. These obligations are both due diligence and good faith obligations. One of the specific obligations that comes from rule 15 of CIHL is in rule 16 of 66
CIHL, and contains the obligation that everything feasible must be done to verify that the targets are military objectives. Close attention must thus be paid to the process of gathering and assessing of information on potential targets, which also depends on the availability of the party’s technical resources. Because drones have the possibility to conduct real-time surveillance, the use of drones 67
might require a wider application of precautionary measures that have to be taken in advance of an attack. Furthermore, the obligation in rule 15 of CIHL to minimise incidental loss of civilian life, 68
injury to civilians and damage to civilian objects may entail precautionary restrictions on the time or location of an attack. 69
The duty to take precautionary measures is not absolute, however, and can better be understood as “a duty to act in good faith to take practicable measures” in which it is acknowledged that “persons acting in good faith may make mistakes”. When assessing whether the criterion of 70
having taken all feasible precautions has been satisfied in a particular attack, the attack must therefore be classified as either a negligent act that is unlawful under IHL, or a mistake that was made despite having taken all of the feasible precautions. All in all, because of the possible 71
increased precision that comes with the use of drones, drones might be a preferred weapon system to use in attacks following rule 15 of CIHL. 72
Wouters 2016, p. 282 66 Weizmann 2013, p. 39 67 Weizmann 2013, p. 40 68 ibid. 69 ibid. 70 ibid. 71 ibid. 72
2.2. Political perspective on the legitimacy of state actions in international law
The second section of this chapter provides a brief overview of political theory on the legitimacy of state actions in respect of international law. In the introduction, brief mention was made of how the law and the interpretation thereof cannot be respected if considered to be illegitimate. This means, a contrario, that legitimate legal interpretations can strengthen the legality of that interpretation - and for this reason, it is important to assess the legitimacy of the political considerations in the interpretations by states of rules of IHL. 73
The argument that law cannot be respected if it is considered to be illegitimate can be explained as follows. As was mentioned in the introduction, the absence of third party adjudication and enforcement of the law within all branches of public international law might have especially problematic consequences for the obedience of the rules of IHL because of the nature of the situations that IHL regulates. If, however, despite the absence of third party adjudication and enforcement of IHL, states do comply with rules of IHL, an argument can be made that it is the legitimacy of the rules of IHL that causes states to feel obligated to obey by the rules of IHL. It is 74
indeed widely argued that legitimacy stimulates compliance with international law. This is 75
particularly argued because of the strength of legitimacy's self-justification in a legal system, because “once something has become legitimate, this provides an exclusionary reason for compliance”. Rules of IHL and the interpretations thereof, therefore, will be respected more if 76
they are considered to be legitimate and this strengthens the legality of both the rule and the interpretation thereof. The concept of legitimacy might then also explain why states feel more obligated to obey by some rules of IHL more than others, or employ a certain interpretation of a rule more in their self-interest than is the case with other rules. Other authors, as well, have argued that 77
the best compliance mechanisms for rules of international law may not be what they call “horizontal management mechanisms”, since enforcement mechanisms of rules of international law are generally weak, but rather vertical strategies of interaction, interpretation and internalization of the rules of international law. 78
Popovski & Turner 2008, p. 1
73 Franck 1990, p. 48 74 Sergeev 2017, p. 7 75 Thomas 2013, p. 7 76 Franck 1990, p. 49 77 Koh 1997, p. 2656 78
In order for an assessment of both the legitimacy of rules of IHL and of the legitimacy of the political considerations in the interpretations of those rules to be made, Franck has composed four indicators of a rule’s and a rule-making process’ legitimacy. The two indicators that will be used to analyze the (interpretations of the) rules of IHL with, are ‘determinacy’ and ‘symbolic validation’. 79
The third and fourth indicator (‘coherence’ and ‘adherence’, respectively) are of less relevance for this study, as will be explained in a later paragraph.
The hypothesis tested by Franck asserted that the extent to which a rule or rule-making process, such as the interpretation of that rule, will exhibit these four indicators, will determine the extent to which states comply with the rule. On the other hand, when these indicators are not 80
present in a given rule or rule process, the rule will be easier to ignore and the state will then be more inclined to pursue its self-interest. States are thus more likely to comply with international 81
law when they accept its legitimacy through some internal process, to which Koh adds that the institutional process to achieve this goal is when international legal norms are interpreted and internalized into the domestic legal systems of states. 82
Turning to the first indicator of Franck’s study, determinacy, Franck describes determinacy as that which makes the message of the rule’s text clear. Rules which are perceived to have a high 83
degree of determinacy have a better chance of actually regulating conduct because states will know more precisely what is expected of them. Indeterminacy makes it easier to justify non-compliance 84
since such a rule leaves more room to be interpreted in a certain way. A rule’s determinacy can be 85
tested by measuring how far definitions or concepts in the rule can be stretched. In another study, 86
Chayes and Chayes also list this indicator as a factor of (non-)compliance with international legal norms. These authors also acknowledge that from an international lawyer’s perspective, such a 87
factor of (non-)compliance might be put forth as an excuse to breach the norm, but that it must be borne in mind that such a defense, like all other issues of compliance, is “subject to the overriding
Franck 1990, p. 49 79 ibid. 80 ibid. 81 Koh 1997, p. 2659 82 Franck 1990, p. 52 83 ibid. 84 Franck 1990, p. 54 85 Franck 1990, p. 57 86
Chayes & Chayes 1993, p. 188
obligation of good faith in the performance of treaty obligations”. In general, CIHL is said to 88
fulfill the criterion of determinacy because the ICRC provided such an extensive list of rules and these rules are described with great precision in comparison to other rules of customary international law. 89
The second indicator of legitimacy of Franck’s study is a rule’s and a rule-making process’ symbolic validation. What is meant by this, is that rule compliance can also be caused by emphasizing the deep rootedness of the rule or the rule-making authority. The rights and duties in 90
a rule are then reciprocally linked to a status that deserves special deference. In doing so, it is 91
important that the cues that are used to achieve this goal are perceived as true by those to whom the cues are addressed, as the cues must reflect historic, social or political reality. These cues can then 92
bestow legitimacy on the rule because the cues reinforce the perception that the rule is entitled to respect. However, in some cases it is unclear as to whether a certain concept is a fundamental 93
concept under customary international law and this lack of clarity could make it hard to measure a certain rule or a rule’s interpretation level of symbolic validation. 94
It will not be necessary to discuss the third and fourth indicator (coherence and adherence, respectively) from Franck’s study in this section, since these indicators are of less relevance for the analysis. The reason for this is that nearly all of the rules that will be studied in the third chapter are rules of CIHL, and each of these rules will exhibit the same high level of both coherence and adherence because of the way the rules of CIHL came into existence. This indicates that states' compliance with a rule will depend much more on the extent to which the rule or rule-making process exhibits the first two indicators as discussed in the paragraphs above.
ibid. 88 Sergeev 2017, p. 10 89 Franck 1990, p. 94 90 ibid. 91 Franck 1990, p. 134 92 ibid. 93 Sergeev 2017, p. 11 94
3. Analysis
This chapter is divided into four sections. The first section will provide a brief general introduction to the armed conflict in Yemen. In the other three sections, the three topics within the area of IHL of which rules have been subject to political considerations from states in their interpretations will be analyzed. In order to do so, a description of the presence of the topic in the armed conflict in Yemen will be given first. These will be descriptions of (alleged) violations of IHL of one of the parties to the conflict, because the political interests of states will be more visible in states’ justifications of, or reactions on, (alleged) violations of IHL. It is important to point out that magnifying (alleged) violations in this thesis is not the same as stating that parties to the conflict only violate rules of IHL, as parties to the conflict obviously also conduct military operations in conformity with IHL.
3.1. General introduction to the armed conflict in Yemen
The armed conflict in Yemen started after an uprising that forced the longtime authoritarian president Saleh to hand over power to his deputy, Hadi, in 2011. Hadi immediately had to deal 95
with multiple domestic problems, varying from attacks by jihadists, a separatist movement in the south, some military personnel still being loyal to Saleh, to corruption, unemployment and food insecurity. The Houthi movement, consisting of a Shiite Muslim minority, took advantage of 96
Hadi’s weakness by taking control of the Saada province and neighbouring areas. The Houthis 97
then attempted to take control of all of Yemen, forcing Hadi to flee abroad in 2015. Because it was 98
suspected that the Houthis were backed by Iran, Saudi Arabia and eight other Arab states began an air campaign aimed at restoring Hadi’s government, receiving logistical and intelligence support from the US, UK and France. It was already mentioned in the second chapter how the armed 99
conflict in Yemen is classified as a NIAC, which is because the government of Yemen, with the help of the Saudi Arabia-led coalition (hereinafter: the coalition), is fighting the armed group of the Houthi movement. While Iran is (allegedly) backing the Houthis, Iran is not presumed to have
BBC 12 March 2019 95 ibid. 96 ibid. 97 ibid. 98 ibid. 99
overall control over the Houthis. Therefore, the armed conflict has not become internationalized and is still classified as a NIAC. 100
The armed conflict in Yemen has been going on since four years and has taken a huge toll on the civilian population of Yemen. Human Rights Watch (hereinafter: HRW) reported that as of 101
November 2018, at least 6.872 civilians have been killed and 10.768 civilians have been wounded. The conflict furthermore has displaced thousands of people from their homes and 102
millions suffer from shortages of food and medical care. HRW has also gathered lots of evidence 103
of violations of IHL by both parties to the conflict, but noted that efforts toward accountability have so far been unsuccessful.104
3.2. The number of civilian casualties in armed conflicts
The majority of the civilian casualties in the armed conflict in Yemen are caused by airstrikes by the the coalition, which have killed at least 4.489 civilians since the beginning of 2016. The exact 105
number of civilian casualties is hard to determine, however, because tracking the number of casualties proves to be very difficult. It is said that the few independent monitors on the ground do not have wide access to information and that officials on both sides of the conflict have an interest in manipulating figures, which could cause the actual number of civilian casualties to be much higher than is currently estimated. 106
Not only is it hard to determine the exact number of civilian casualties in the armed conflict, it is also difficult to determine whether the loss of civilian life was in violation with the rules of IHL and if so, hold the responsible party accountable for the alleged violation. The airstrike that was conducted by the coalition on the 25th of August 2017 can illustrate this point. HRW asked the coalition to conduct serious investigations into the alleged violations of IHL that occurred when
Rulac Geneva Academy 2018
100
Human Rights Watch 2019
101 ibid. 102 ibid. 103 ibid. 104
Keath, AP News 10 November 2018
105
ibid.
apartment buildings in a densely populated neighborhood in Sanaa were hit by airstrikes, which killed or wounded more than two dozen civilians. 107
When asked for a response on this alleged violation of IHL, the coalition said that it carried out the attack, but took the position that “the civilian casualties were only the result of a technical error when the coalition had targeted a legitimate military objective, namely a command and control center of Houthi militants”. The coalition did not provide any further details regarding which 108
countries had participated in the attack. The coalition concluded its reaction by expressing its 109
remorse for the unfortunate incident and collateral damage to the civilians by the alleged indirect targeting of the houses, and emphasized that the coalition is fully committed to implementing the principles of IHL. The Joint Incidents Assessment Team (hereinafter: JIAT), which is the 110
coalition’s investigative mechanism, had absolved the coalition of most wrongdoing after the attack had occurred. At the same time, the ICRC said there was no apparent military target in the area 111
and called the attack outrageous. Furthermore, HRW has reported both factual and legal 112
discrepancies between JIAT’s work and HRW reporting in not only this airstrike, but also in 17 other airstrikes. In absolving coalition members of legal responsibility in attacks, JIAT in most 113
cases finds that “the coalition acted lawfully, did not carry out the reported attack, or that a mistake was unintentional, often due to technical errors”. The US, UK and France, which sell weapons to 114
Saudi Arabia, often claim that “the coalition improves its targeting practices during the conflict to minimize civilian casualties and state that the coalition members are engaged in a good faith effort to comply with IHL”. 115
When the coalition reacted on the alleged violations of IHL in the airstrike that was conducted on the 25th of August 2017, the coalition had not mentioned the applicable rules of IHL explicitly in its reaction. The reaction did refer implicitly to multiple rules of IHL. The extent to which these rules allow for political considerations in their interpretations, will be analyzed next.
Human Rights Watch 2017
107
ibid.
108
ibid.
109
Saudi Press Agency 2017
110
Human Rights Watch 2017
111
ibid.
112
Human Rights Watch 2017
113
ibid.
114
ibid.
The applicable rule of IHL to the coalition’s statement that the civilian casualties were the result of a technical error when the coalition had targeted a legitimate military objective is rule 11 of CIHL, which is the prohibition on indiscriminate attacks. The coalition took the position that the attack was directed at a specific military objective, but that the civilian casualties resulted from a technical error. The legally relevant question regarding the coalition’s justification is whether rule 11 and 12 of CIHL can be interpreted in such a way that these rules allow for a technical error to be the reason for still having complied with these two rules. This justification would, obviously, be in the political interests of the coalition because the coalition would then be excused of committing a violation of IHL.
Rule 11 and 12 of CIHL are to be read together, since rule 11 of CIHL establishes the prohibition on indiscriminate attacks and rule 12 of CIHL defines the kinds of indiscriminate attacks. The weapons system that was used in the attack by the coalition is not by its nature indiscriminate such as is the case with, for instance, biological weapons. Because of this, the analysis must look at sub a of rule 12 of CIHL, which establishes that an indiscriminate attack includes an attack which is not directed at a specific military objective. This rule is normally understood as the prohibition of attacks that fail to identify a specific military target as an objective, for instance when no care is taken to aim an attack specifically at military objectives which are located in inhabited areas. The coalition said that its attack was directed at a specific military target, but that the attack failed to hit its intended target only due to a technical error in the weapons system. It is a given fact that technical malfunctions sometimes do occur, even if states use highly developed weapons systems. It seems unlikely that a technical error that is beyond the control of the attacking party would make an attack indiscriminate as long as the attacking party had taken all the care it could have to aim the attack specifically at a military objective before the technical error occurred. This would mean that the justification of a ‘technical error in the weapons system’ would, in some circumstances, be allowed under sub a of rule 12 of CIHL. However, in this particular instance there was also the allegation of the ICRC that there was no apparent military objective in the area of the attack. This allegation gives the impression that the justification of ‘a technical error in the weapons system’ is not an interpretation that the coalition made in good faith, since it would use the justification for political purposes instead of what the rule was meant for. The interpretation would then become illegitimate, as well as not an objectively correct interpretation of what rules 11 and 12 of CIHL do or do not allow for.
The coalition furthermore said that this attack resulted in the indirect targeting of the houses of civilians. Rule 6 of CIHL and article 13 of Additional Protocol II are applicable to this statement,
since these rules prescribe that civilians are protected against attacks and dangers arising from military operations. Rule 6 of CIHL and article 13 of Additional Protocol II follow from the principle of distinction and the principle of distinction is considered to be a fundamental principle of IHL by pursuing the aim of IHL to limit the effects of armed conflicts. Because rule 6 of CIHL 116
and article 13 of Additional Protocol II reflect this principle well, the level of symbolic validation of these rules is high. In its reaction, the coalition indeed said that it is fully committed to implementing the principles of IHL such as the principle of distinction, which leads me to believe that the coalition thinks of, amongst others, rule 6 of CIHL and article 13 of Additional Protocol II as being entitled to respect, thus bestowing legitimacy on these rules. In addition, the level of determinacy of these rules and its practical application as provided by the ICTY in Galic is relatively high as well. The practical application of these rules requires that states must take every precaution feasible to ensure that civilians are as much as possible protected from attacks, which seems to be clear on itself, even though the concepts of ‘feasible’ and ‘as much as possible’ might be able to be stretched more than other concepts in a certain rule. The notion of feasibility will be discussed more in-depth in the fourth section in this chapter. For now it suffices to say that states are expected to comply with rules 6 of CIHL and article 13 of Additional Protocol II, since these rules exhibit a high level of Franck’s indicators.
Coming back to the coalition’s reaction that the attack resulted in the indirect targeting of the houses of civilians due to the technical error in the weapons system, it is thus very well possible that the coalition indeed intended not to target these civilian objects and wanted to comply with rule 6 of CIHL and article 13 of Additional Protocol II. However, once again the allegation of the ICRC that there was no apparent military objective in the area of the attack questions the extent to which the coalition’s interpretation was made in good faith. If it was known to the ICRC that there was no apparent military objective in the area of the attack, the coalition then should also have known that there was no military objective in the area of the attack after having taken all feasible precautions pursuant to the ICTY’s application of rule 6 of CIHL and article 13 of Additional Protocol II. Because of this, the conclusion must be that the coalition has not acted in accordance with its obligations under rule 6 of CIHL and article 13 of Additional Protocol II if the allegation made by the ICRC proves to be correct. The coalition then seems to have hid behind the expectation that states would comply with the rules because they are considered to be legitimate, but actually made
ICRC 2018 [Fundamental principles of IHL]
their interpretation not in good faith and made a purely political value judgment whilst presenting it as an objective interpretation.
The coalition concluded its reaction by stating that the civilian casualties, the more than two dozen civilians who were killed or wounded in the attack, were an unfortunate incident and considered these civilian casualties to be collateral damage. This statement implies that the coalition argues that the attack was proportional, or phrased in the words of rule 14 of CIHL, that the civilian casualties were not excessive in relation to the military advantage sought by the attack. Like the principle of distinction, the principle of proportionality also is a fundamental principle of IHL. 117
Because rule 14 of CIHL captures the principle of proportionality precisely in one rule, the level of symbolic validation of rule 14 of CIHL is high. However, the level of determinacy in rule 14 of CIHL is not as high because of the way the proportionality of an attack must be analyzed. The ICTY in Galic said that it must be “examined whether a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack”. The concept of ‘excessive’ in rule 14 of CIHL and the ICTY’s application, as well as the concepts of ‘reasonably well-informed person’ and ‘making reasonable use of the information available’, are relatively open for interpretation by states as these concepts can be stretched when interpreting them. This vagueness is necessary, however, because the circumstances of each attack differ and it is impossible to establish one clear rule that would clearly describe what is proportional in all those circumstances. The vagueness of the rule does, however, lead to the overriding obligation of performing the principle of proportionality in good faith being extra important, as Chayes and Chayes argued in their article. The high level of symbolic validation is expected to make states perceive rule 14 of CIHL as legitimate, which, in combination with the importance of the obligation to perform the principle of proportionality in good faith, leads to the expectation that states act in accordance with the proportionality principle.
When compared to the airstrike that the coalition conducted on the 25th of August 2017, the coalition had mentioned that the intended target of the airstrike was a command and control center of Houthi militants, without providing further information about the military advantage sought to gain from the attack. The lack of information therefore makes it hard to analyze whether the coalition interpreted rule 14 of CIHL in good faith. The fact remains, however, that more than two dozen civilians were killed or wounded because of the attack. The ICTY in Kupreskic said that the
ICRC 2018 [Fundamental principles of IHL]
principle of proportionality must be interpreted “so as to construe as narrowly as possible the discretionary power to attack belligerents and so as to expand the protection accorded to civilians”, keeping also the cumulative effect of the incidental damage to civilians from previous attacks in mind. Earlier, HRW reported factual and legal discrepancies not only in this airstrike from the coalition, but also in 17 other airstrikes. This makes it all the more questionable whether the coalition indeed interpreted rule 14 of CIHL in good faith, since the factual and legal discrepancies give the impression that the coalition made a wrong assessment of the situation but was said to have abided by the principle of proportionality in public statements.
3.3. The use of human shields in armed conflicts
Despite the prohibition on the use of human shields in armed conflicts, weaker parties in an armed conflict are believed to use human shields frequently in order to overcome the problem that their opponent is technologically superior to them. This prohibited method of warfare is thus often 118
used to counter attacks against which the weaker party cannot effectively defend itself. Therefore, 119
it is to be expected that in the armed conflict in Yemen the Houthi rebels will employ this tactic. Because of this, the states that form part of the coalition have to interpret the rules that follow from the prohibition on the use of human shields in these situations and act accordingly. After all, even though the use of human shields is prohibited under IHL, rule 139 of CIHL requires all parties to an armed conflict to respect and ensure respect for IHL and this obligation does not depend on reciprocity. Thus, the coalition still has to comply with its obligations under IHL even though the Houthi militants violate IHL when they use human shields.
In 2016, a UN report found that it were indeed the Houthi rebels who used civilians as shields by concealing their fighters and equipment near or in civilian areas, with the deliberate aim of avoiding attacks. Hospitals, for instance, were used as military command posts from which 120
attacks were launched against coalition forces. The Houthis were not available to comment on 121
this UN report. While the coalition has been accused numerous times of deliberately causing 122
civilian deaths by bombing these hospitals or other civilian structures, it is not always easy to
Schmitt 2009, p. 297
118
ibid.
119
Gulf News 5 August 2016
120
Coughlin 2016
121
Nichols, Reuters 4 August 2016
establish whether civilian structures were indeed used by the Houthis as human shields, thereby becoming possible legitimate military targets.
One of the airstrikes, for instance, hit a mobile clinic of Doctors Without Borders (hereinafter: DWB) that is located in an area controlled by the Houthis. DWB issued a statement 123
saying that the coalition had regularly been provided with the coordinates of the clinic, because of which the coalition must have been aware of the presence of the clinic. It was not mentioned in 124
the statement whether any combatants were present in the clinic, only that the clinic had been evacuated after several airstrikes hit a park nearby the clinic hours prior to the attack on the clinic. In a response to the airstrikes that were conducted on this hospital and other civilian 125
structures, JIAT issued a report finding that the airstrike that hit the mobile clinic targeted Houthi militias that were hiding in this mobile clinic and stressed “the necessity to keep mobile clinics away from military targets so as to not be subjected to any incidental effects”. With regards to 126
other civilian structures that had been hit, such as other hospitals, JIAT stated that these airstrikes as well had been justified since these structures became legitimate targets when the Houthi rebels started occupying these structures, with the Houthis breaching IHL. In the investigation, JIAT 127
thus cleared the coalition of unlawful activity in six of these airstrikes and found that the Saudi-led coalition had committed to both the rules of IHL and the rules of engagement. 128
The mere co-location of the mobile clinic of DWB near military objectives, such as the group of Houthi militias, does not constitute using a human shield. However, if Houthi militias were hiding in the mobile clinic and were deliberately co-locating themselves with the mobile clinic with the specific intent to prevent attacks, then the mobile clinic would be used as a human shield. Assuming that Houthi militias were indeed hiding there with the intent to prevent an attack, though, it seems unlikely that the doctors of DWB in the clinic wanted their mobile clinic to become a military target that they protected of their own free will. After all, they regularly provided the coalition with the coordinates of the clinic to prevent attacks on the clinic and evacuated every patient once the clinic was threatened by nearby airstrikes, prior to the attack on the clinic itself. These are strong arguments for the doctors of the clinic not classifying as directly participating in
Fahim, The New York Times December 3 2015
123 ibid. 124 ibid. 125 Asharq Al-Awsat 2016 126 Coughlin 2016 127 ibid. 128
hostilities. On the other hand, these mobile clinics often are small because of which the doctors of the clinic must have known that the Houthi militias were in the clinic. Having this knowledge may cause the threshold of harm required for qualification as direct participation in hostilities, although this is debatable given that the arguments against the doctors of the clinic directly participating in hostilities may outweigh the argument of the doctors having knowledge of the militia’s presence. For the sake of the analysis of this study, this debate will not be elaborated on and the mobile clinic will be considered as an involuntary human shield, because of which both the clinic and the civilians in it are considered to still be protected by rule 6 of CIHL and rule 13 of Additional Protocol II. In the previous section, it was argued that it is expected that states comply with these rules since these rules exhibit a high level of Franck’s indicators.
In a comment on the attack on the mobile clinic, JIAT said that the airstrike that hit the clinic targeted Houthi militias that were hiding in the clinic and that the clinic was subjected to incidental effects. This implies that the coalition knew that the target of the attack was a mobile clinic, but argued that it became a legitimate military objective once Houthi militias were hiding there. The coalition seems to have applied the distinction between voluntary and involuntary human shields correctly, as it called the damage to the mobile clinic ‘incidental effects’, by factoring the civilian objects and persons into the proportionality analysis as also is required with situations of involuntary human shields.
Furthermore, JIAT stressed “the necessity to keep mobile clinics away from military targets so as to not be subjected to any incidental effects”. Both rule 23 and rule 24 of CIHL are relevant to this statement, as these rules of CIHL indeed obligate Houthi’s to avoid locating military targets near civilian objects, which was not done in the case of the mobile clinic. However, the ICTY in Galic also noted that failure of a party to abide by this obligation does not relieve the attacking side of its duty to abide by the principles of distinction and proportionality when launching an attack. It is therefore not possible for the coalition to evade its own obligations under IHL by pointing to the obligations under IHL of other parties to the conflict, but again JIAT made this remark to prevent the civilians from being subjected to incidental effects which implies that if the coalition has to attack, they will indeed abide by the principles of distinction and proportionality. With Franck’s indicators in mind, this would also be expected of the coalition since both principles have a high level of symbolic validation (as was established in the previous section) and the rule the ICTY provided in order to expand on rules 23 and 24 of CIHL is very clear.
The coalition thus seems to have interpreted the rules regarding attacks on human shields correctly. This does not mean, however, that attacks on medical facilities or other civilian structures,
