A NEW CONTROL TEST FOR PROXY WARS IN
INTERNATIONAL HUMANITARIAN LAW
A Case Study of the Role of Saudi Arabia and Iran in the Yemeni Civil War
Marijke C. Bakker
Marijkechristine96@gmail.com
11363169
Master thesis Public International Law
University of Amsterdam
Supervised by prof. dr. T.D. Gill
2
The main research question of this thesis is: How should proxy wars be classified in International Humanitarian Law? Proxy wars are commonly seen as prima facie non-international armed conflicts ‘non-internationalized’ by the ‘overall control’ of a foreign State over a non-State armed group being a party to the pre-existing NIAC. The ‘overall control’ of the State over the NSAG would make the law of international armed conflict applicable to the conflict. However, this thesis argues that the ‘overall control’ test is unsuitable to use for this purpose. It does so by first describing the current doctrine, as well as the consequences of the classification of a proxy war as either a NIAC or an IAC. Then, it uses the Yemeni civil war and the roles of Saudi Arabia and Iran in that conflict as a case study, to illustrate why the ‘overall control’ test is problematic. Thereafter, the identified problems are generalized towards all situations of proxy war and it is argued that the ‘general and strict’ control test is better suitable for identifying a proxy war in terms of IHL.
Table of contents
Abstract ... 2 Table of contents ... 3 List of abbreviations ... 5 1. Introduction ... 6 1.1 Research overview ... 72. Classification of proxy wars ... 9
2.1 ‘Effective control’ or ‘overall control’? ... 9
2.2 Rationale of the ‘overall control’ test ... 11
2.3 Consequences of classification ... 13
2.3.1 The principle of distinction ... 13
2.3.2 Occupation ... 14
2.3.3 State and individual responsibility ... 16
2.4 Conclusion ... 17
3. The Yemeni war ... 18
3.1 Explaining the conflict ... 18
3.1.1 Origins of the conflict (1962 - 2004) ... 18
3.1.2 The Sa’dah wars (2004 - 2010) ... 20
3.1.3 The civil war (2011 - 2020) ... 21
3.2 The role of Saudi Arabia and Iran ... 23
3.2.1 The role of Saudi Arabia ... 24
3.2.2 The role of Iran ... 25
3.3 Conclusion ... 26
4. Classification of the Yemeni war in IHL terms ... 28
4.1 Criteria non-international armed conflict ... 28
4
4.3 The influence of foreign intervention on classification of the Yemeni war ... 32
4.4 Hypothetical scenario of ‘overall control’ by Iran over the Houthis ... 34
4.5 Conclusion ... 35
5. Classification of proxy wars – revised ... 37
6. Conclusion ... 41
5
List of abbreviations
AP Additional Protocol
GC Geneva Convention
IAC International armed conflict
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICTY International Criminal Tribunal for the
former Yugoslavia
IHL International Humanitarian Law
NIAC Non-international armed conflict
NSAG Non-State armed group
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1. Introduction
In 2010, a series of protests broke out across the Middle East that became known as the Arab Spring. In Yemen, the Arab Spring uprisings in 2011 sparked a new phase of unrest and conflict in the country. President Salih was forced to resign, and his vice president Hadi came into power. However, the change of president did not cause stability to return to Yemen, and several groups took advantage of the unrest.1 The Houthi movement, an armed group that had already been in conflict with the government in the Sa’dah wars of 2004-2010, used this instability to occupy and claim governmental control over the Sa’dah region. In 2014, the Houthi rebels took control of Sana’a, the capital of Yemen.2 They demanded,
among other things, a new government. After they seized the presidential palace in January 2015, President Hadi and his government turned in their resignation (which would later be revoked).3
These last events triggered a coalition of Gulf States, led by Saudi Arabia, to launch a campaign of economic isolation and air strikes against the Houthi rebels in support of the government.4 On the other side of the conflict, Iran is being accused of supporting the Houthis.5 Because of the interferences by Saudi Arabia and Iran, the conflict in Yemen is often deemed a ‘proxy war’ between these two regional powers. What is generally understood by the term ‘proxy war’ is quite clear in the ordinary meaning used by journalists and in other non-legal environments. Proxy wars are defined by the Cambridge Dictionary as wars “fought between groups or smaller countries that each represent the interests of other larger powers, and may have help and support from these.”6 How a proxy war is to be
defined in legal terms, however, is a tad more complicated.
IHL knows a classic distinction between IACs and NIACs. IACs are conflicts arising between two or more States, whereas NIACs arise between a State and a NSAG, or between such groups themselves.7 There are conflicts that can easily be categorized as an IAC, e.g.
1 ‘Yemen crisis: Why is there a war?’ BBC News (London, 10 February 2020)
<https://www.bbc.com/news/world-middle-east-29319423> accessed 13 June 2020.
2 Marieke Brandt, Tribes and Politics in Yemen: A History of the Houthi Conflict (OUP 2017) 342.
3 Hubert Swietek, ‘The Yemen War: A Proxy War, or a Self-Fulfilling Prophecy’ (2017) 26 Pol Q Int’l 162, 42. 4 Ibid.
5 Alan Lis, ‘Yemen Is A Battleground In Iran’s Proxy War Against the U.S. And Saudi Arabia’ (Global Security Review, 2 October 2019) <https://globalsecurityreview.com/yemen-iran-proxy-war/> accessed 13 June 2020. 6 Colin McIntosh, Cambridge Advanced Learner’s Dictionary & Thesaurus (4th edn, Cambridge University Press
2013) <https://dictionary.cambridge.org/dictionary/english/proxy-war> accessed 13 January 2020.
7 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
7 the conflict between India and Pakistan,8 and conflicts which are clearly a NIAC, like the conflict between Columbia and the FARC.9 Other conflicts, however, are not so easily divided into one of these two categories. An example thereof, is the proxy war. A proxy war may have characteristics of both an IAC as well as a NIAC. In current literature proxy wars are often shortly mentioned as an example of ‘internationalized NIACs’: NIACs that turn into IACs because of the intervention of foreign powers, which would render the law on IAC applicable to them.10 However, questions can be posed as to the legal and practical logicality of this conclusion. This thesis addresses those questions, and uses the war in Yemen as a case study to then come up with a new legal framework for the classification of proxy wars in IHL.
1.1 Research overview
The main research question of this thesis is: How should proxy wars be classified in IHL? This is an advisory question,11 since it seeks to indicate what should happen in the future
regarding the classification of proxy wars in IHL. To answer this question, multiple sub-questions are explored. First, the descriptive question what the current legal doctrine on proxy wars entails, is answered. In that context, the consequences of classification of a proxy war as either a NIAC or an IAC are also discussed. Subsequently, the Yemeni war is used as a case study to examine the best way to classify a proxy war. First, it is assessed whether the Yemeni war actually is a proxy war, to then determine what classification would do justice to the present conflict. In this determination the consequences of classification are taken into account. The case study of the Yemeni war is then used to generalize towards a renewed view on the classification of proxy wars.
To answer these questions, a literature study is performed based on multiple types of sources. These sources exist of primary sources of international law, case law and treaties, as well as secondary sources of international law, books and journal articles writing about the interpretation or application of primary sources. Furthermore, news articles are used,
Commentary on the First Geneva Convention, 2nd edition, 2016
<https://ihl-databases.icrc.org/ihl/full/GCI-commentary> accessed 13 June 2020, 393-394.
8 ‘International armed conflict between India and Pakistan’ (Rule of Law in Armed Conflicts)
<http://www.rulac.org/browse/conflicts/international-armed-conflict-between-pakistan-and-india> accessed 13 June 2020.
9 ‘Non-international armed conflicts in Colombia’ (Rule of Law in Armed Conflicts)
<http://www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-colombia> accessed 13 June 2020.
10 Dieter Fleck, The Handbook of International Humanitarian Law (3rd edn, OUP 2014) 582.
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mainly to determine the current situation in Yemen. However, it will be kept in mind that news articles are less authoritative than research articles or books based on extensive research. Therefore, news articles will where possible be combined with other news articles, as well as backed up by journal articles or books.
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2. Classification of proxy wars
The ‘internationalizing’ factor in proxy wars, is the intervention by a foreign State in support of a NSAG in a pre-existing NIAC.12 Not all types of support can lead to the conclusion that the NSAG is acting as a proxy of the intervening State.13 To conclude that a proxy war, in legal terms, is going on, the intervening State has to have a certain amount of control over the armed group. In case law of the ICJ and the ICTY, different tests of control have been put forward.14 The first paragraph of this chapter describes this case law
and the general consensus on how these cases should be interpreted, leading to the conclusion that the ‘overall control’ test needs to be used to classify the conflict as an IAC. Then, the rationale for using this test is criticized.
The second paragraph of this chapter describes the consequences of the classification of a proxy war as either an IAC or a NIAC. Even though, because of customary law, many rules that once only applied in IAC now also apply to NIACs, differences in the applicable rules remain.15 These differences can have important consequences in the context of proxy wars. The paragraph deals with the principle of distinction, the law of occupation, and State as well as individual responsibility.
2.1 ‘Effective control’ or ‘overall control’?
The most prominent cases on the relationship between a foreign intervening State and a NSAG are the Nicaragua case, in which the ICJ decided on State responsibility, and the
Tadiç case, in which the ICTY decided on individual criminal responsibility.16 In both cases, the courts had to decide on the amount of control a State had over a NSAG. The ICJ and the ICTY developed different standards of control, respectively ‘effective control’ and ‘overall control’. This led to a debate on which standard of control should be used.
12 Fleck (n 10) 582; Tom Gal, ‘Unexplored Outcomes of Tadiç: Applicability of the Law of Occupation to War by
Proxy’ (2014) 12 J Int’l Crim Just 60; Dapo Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in Elizabeth Wilmshurst (ed), International Law and the Classification of Conflicts (OUP 2015) 57.
13 ICRC Commentary GC I (n 7) 264-266.
14 Case Concerning Military and Paramilitary in and against Nicaragua (Nicaragua v USA) (Merits) [1986] ICJ
Rep 1986; Prosecutor v Tadiç (Judgment Appeals Chamber) ICTY-94-1-A (15 July 1999).
15 ICRC Commentary GC I (n 7) 391. 16 Nicaragua case (n 14); Tadiç case (n 14).
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In the Nicaragua case,17 the ICJ was asked to decide on the responsibility of the United States for acts performed by the contras in Nicaragua. For the US to be responsible, the acts of the contras would have to be attributed to the US. First, the ICJ relied on a test of ‘complete control’ to establish whether the contras could be seen as a de facto organ of the US.18 Then, it developed the ‘effective control’ test to determine whether the contras acted under the direction or control of the US.19 For ‘effective control’ to exist, financing, organizing, training, supplying, and equipping of a NSAG is not enough. The State has to have effective control over the specific operation during which violations of international law are committed.20
In the Tadiç case,21 the ICTY had to decide on individual criminal responsibility. In this context, it established legal criteria to determine in which case a prima facie NIAC turns into an IAC because an armed group is acting on behalf of a foreign power. The tribunal started its analysis by claiming that Article 4 GC III implicitly refers to a test of control.22
However, what that test of control should entail was not specified in IHL. Therefore, the tribunal turned to the law of State responsibility for help. In doing so, it considered the ‘effective control’ test the ICJ developed in the Nicaragua case unpersuasive.23 According
to the ICTY, a better test for the amount of control of a foreign State over a NSAG is ‘overall control’. This “may be deemed to exist when a State (…) has a role in organizing,
coordinating or planning the military actions of the military group, in addition to financing,
training and equipping or providing operational support to that group.”24 The difference
with ‘effective control’ is thus that it does not require specific instruction or direction by a State in an individual operation.
So, which test should be used: ‘effective control’ or ‘overall control’? Both. Both in their own context. Under the current doctrine, it is commonly held that the standard of control for determining State responsibility and the standard of control for determining conflict classification do not need to be the same.25 In the context of the law of State
17 Nicaragua case (n 14). 18 Ibid §109.
19 Ibid §115; ILC, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ (2001) UN Doc
A/56/49(Vol. I)/Corr.4 (ARSIWA) art 8.
20 Nicaragua case (n 14) §115. 21 Tadiç case (n 14).
22 Ibid §95. 23 Ibid §116-136. 24 Ibid §137.
25 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 2007 §405; Kubo Mačák,
11 responsibility, the test of ‘effective control’ is to be used. Even though regarding the law of armed conflict also other tests have been proposed next to the ‘overall control’ test,26 this
test has become the accepted standard by scholars as well as in international courts and tribunals.27 As such, to define whether an armed group is to be deemed a proxy of a State, it must be determined whether the State has ‘overall control’ over the armed group.
However, the use of these different tests does lead to a responsibility gap. Under the current doctrine, there can be situations in which a third State uses a NSAG as its proxy for fighting an IAC, but cannot be held responsible for all acts of the NSAG, unless these acts were under the State’s ‘effective control’. There is also no legal basis to hold the NSAG itself internationally responsible.28
2.2 Rationale of the ‘overall control’ test
Even though the ‘overall control’ test is the test to be used for conflict classification, the rationale behind this test can be questioned. First, the ICTY started its analysis from Article 4 GC III. However, it can be derived from the ICRC’s Commentary to this article that it does not apply to members of NSAGs but only to resistance fighters, fighting against an occupying force in an IAC.29 Then, the tribunal uses the law of State responsibility to interpret the law of armed conflict. But IHL is not to be seen as a lex specialis to the law of State responsibility.30 IHL contains primary rules while the law of State responsibility contains secondary rules. It is therefore illogical to use a test on attribution for the purpose
Internationalized Armed Conflicts in International Law (OUP 2018) 44; Stefan Talmon, ‘The Responsibility of
Outside Powers for Acts of Secessionist Entities’ (2009) 58 ICLQ 493.
26 See i.a. Talmon (n 25) 513ff.; Theodor Meron, ‘Classification of Armed Conflict in the Former Yugoslavia:
Nicaragua’s Fallout’ (1998) 92 The American Journal of International Law 236, 241-242.
27 ICRC Commentary GC I (n 7) 265ff.; Robert Heinsch, ‘Conflict Classification in Ukraine: The Return of the
“Proxy War”?’ (2015) 91 Int’l L. Stud. 323, 344; Tristan Ferraro, ‘The ICRC’s Legal Position on the Notion of Armed Conflict Involving Foreign Intervention and on Determining the IHL Applicable to This Type of Conflict’ (2015) 97 ICRC 1227, 1237-1238; Mačák (n 25) 46; Henri Decoeur, ‘Avoiding Strict Liability in Mixed Conflicts: A Subjectivist Approach to the Contextual Element of War Crimes’ (2013) 13 International Criminal Law Review 473, 478; Prosecutor v Blaskiç (Judgment Trial Chamber) ICTY-95-14-T (3 March 2000) §95-123; Prosecutor v
Aleksovski (Judgment Appeals Chamber) ICTY-95-14/1-A (24 March 2000) §134; Prosecutor v Delaliç and others (Judgment Appeals Chamber) ICTY-96-21-A (20 February 2001) §26; Prosecutor v Lubanga (Judgment
Trial Chamber I) ICC-01/04-01/06 (14 March 2012) §541; ICJ Bosnian Genocide case (n 25).
28 Gal (n 12).
29 ICRC, Commentary on the Third Geneva Convention, 1960
<https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?documentId=77CB9983BE01D004C12563CD002D6B3E&actio n=openDocument> accessed 15 June 2020, 57.
30 Marko Milanovic, ‘State Responsibility for Genocide’ (2006) 17 EJIL 553, 587; see also Mačák (n 25) 44;
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of State responsibility, to determine which part of the law of armed conflict is applicable.31 Furthermore, the tribunal based its argumentation on a wrong interpretation of the law of State responsibility. In its assessment of the Nicaragua judgment, it interpreted the ‘effective control’ standard to be used by the ICJ to determine whether a non-State entity should be seen as a de facto State organ under Article 4 ARSIWA.32 However, as explained in the discussion of the Nicaragua case, the ‘effective control’ standard was not used to determine whether the contras were de facto State organs of the US, but to determine whether they acted under the direction or control of the US in the sense of Article 8 ARSIWA.
The ICRC endorses the ‘overall control’ test based on the following reasoning. For classification of the conflict it is important whether the actions carried out by an armed group can be linked to the bearer of international obligations, the intervening State. Therefore, the test to identify the relationship between an armed group and a State for the purpose of conflict classification should be the same as the test for attribution under the law of State responsibility.33 This should be the standard of ‘overall control’, because “[t]he
notion of overall control might prevent the intervening Power from hiding behind the proxy’s veil in order to avoid its obligations and the international responsibilities under humanitarian law.”34 However, as shown in the foregoing paragraph, in the current doctrine
the tests for conflict classification and for State responsibility are not the same, and the classification of a conflict as an IAC when an intervening State has ‘overall control’ has no bearing on the responsibility of that State. Furthermore, the ICRC argues that because of the control exercised by the State over the NSAG, the NSAG is ‘absorbed’ by the State and has become its ‘agent’ for international law purposes. Therefore, the law of IAC applies.35
This reasoning contains the same flaws as the reasoning in the Tadiç case. It uses the law of State responsibility to interpret the law of armed conflict, and stating that ‘overall control’ transforms a NSAG into an ‘agent’ of the State is based on the ICTY’s wrong interpretation of the ‘effective control’ test.
The reasoning on which the classification of a conflict as an IAC in case of ‘overall control’ is based, thus contains several flaws. It has been argued that the ‘overall control’ test could still be useful as a test to determine whether the foreign State ‘has used force
31 Milanovic (n 30) 585. 32 Tadiç case (n 14) §99-101.
33 ICRC Commentary GC I (n 7) 268. 34 Ibid 273.
13 through a non-State group’.36 However, this thesis argues that the ‘overall control’ test is not only flawed because of its rationale, but also because of the consequences it causes. The next paragraph deals with the consequences of the classification of a proxy war as either a NIAC or an IAC.
2.3 Consequences of classification
Because many rules of the law of IAC are nowadays accepted to also apply to NIACs, some scholars have proposed leaving the dichotomy and unifying the law of armed conflict.37 However, some differences still exist that lead to different consequences in case of the classification of a conflict as a NIAC or an IAC. These different consequences are relevant to take into account when thinking of how a proxy war should be classified.
2.3.1 The principle of distinction
The principle of distinction entails that parties to the conflict should always distinguish between civilians and combatants, and between civilian objects and military objectives.38 Even though the principle of distinction also applies in NIACs, in these conflicts there is no combatant status and it is harder to define who is a civilian. Members of the armed forces of a NSAG are not to be seen as civilians, but as ‘fighters’.39 They can be attacked at all times, however they do not have combatant privilege.40 Because of that, they do not enjoy immunity from prosecution under domestic law and cannot obtain prisoner of war status.
Some argue that members of NSAGs in all internationalized armed conflicts should be granted combatant status, because this would provide an incentive for them to abide by IHL.41 It has also been held that members of NSAGs in proxy wars meet the criterion of
36 Mačák (n 25) 44.
37 James Stewart, ‘Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique
of Internationalized Armed Conflict’ (2003) 85 IRRC 313; Tamás Hoffmann, ‘Squaring the Circle? – International humanitarian law and transnational armed conflicts’ in Michael J Matheson & Djamchid Momtaz (eds), Rules and
Institutions of International Humanitarian Law put to the test of Recent Armed Conflicts (Martinus Nijhoff
Publishers 2007) 25ff.
38 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (AP I) art 48; Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Volume I:
Rules (ICRC and Cambridge University Press 2005) Rule 1.
39 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities (ICRC 2009) 27-30. 40 Melzer (n 39) 72, 33; Fleck (n 10) [1203].
14
‘belonging to a Party to the conflict’ laid down in Article 4 GC III,42 and as such obtain
combatant status.43 However, as mentioned before, this article only applies to resistance fighters.44
Nevertheless, there might be another way in which members of a NSAG can be seen as combatants in IAC. According to the ICRC, it is customary law that “[t]he armed forces of a party to the conflict consist of all organized armed forces, groups and units which are
under a command responsible to that party for the conduct of its subordinates.”45 (emphasis added). This customary rule is based on Article 43 AP I, of which it is said that “the armed actors alluded to here are ‘militias’ and ‘organized resistance movements’ as well as so-called ‘national liberation movements’”.46 It is thus not entirely clear whether in fact all
NSAGs can be considered armed forces of a State once they are under a command responsible to that State. Furthermore, it is unclear what is meant by ‘command responsible to that party’. In any case, a State only having a role in the organizing and planning of a NSAG’s military operations, i.e. having ‘overall control’, would probably not amount to a NSAG commander being responsible towards that State for the conduct of his subordinates. Consequently, it is unclear what the status of members of a NSAG is in a proxy war. The NSAG is seen as a proxy of the third State and supposedly the law of IAC is applicable, but the NSAG cannot be equated to the State’s armed forces. Since in IAC there only exists a distinction between combatants and civilians, this would render the members of the armed group civilians who can only be attacked when directly participating in hostilities. This would defeat the purpose of not seeing them as civilians in NIAC.
2.3.2 Occupation
The law of occupation only applies in international armed conflicts.47 Certain authors maintain that a State is able to occupy another State’s territory through a proxy, when the State exercises overall control over the NSAG exercising effective control over the
42 Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force
21 October 1950) 75 UNTS 135 (GC III) art 4A(2).
43 Mačák (n 25) 173.
44 ICRC Commentary GC III (n 29) 57.
45 Jean-Marie Henckaerts & Louise Doswald-Beck (n 38) Rule 4; also see AP I (n 38) art 43.
46 Annyssa Bellal, ‘What Are ‘Armed Non-State Actors’? A Legal and Semantic Approach’ in Ezequiel Heffes,
Marcos Kotlik & Manuel Ventura (eds), International Humanitarian Law and Non-State Actors: Debates, Law
and Practice (Asser Press 2020) 25-26. 47 See Hoffmann (n 37) 27.
15 territory.48 However, even though NSAGs are able to exercise control over territory, it is questionable whether they are able to live up to the extensive obligations of GC IV and the Hague Regulations.49 There is a reason why the provisions in AP II regarding the protection of civilians are less extensive than the provisions in GC IV. Furthermore, GC IV gives rights to the Occupying Power, e.g. being able to change laws when militarily necessary.50 It is unlikely that States would accept a NSAG to be able to exercise these rights, given the reluctance of States to ascribe non-State groups any legitimacy.51
Because it would be unreasonable to expect all NSAGs to abide by all provisions of GC IV, an approach has been suggested in which the application of the provisions depends on the ability of an armed group to abide by them. This means that armed groups that very much resemble a State should abide by all the rules of GC IV, and other armed groups should be held to minimum humanitarian standards.52 However appealing this approach
might seem in legal theory, it makes the application of the law in practice more difficult. The ‘minimum humanitarian standards’ are likely consistent with the rules of AP II. It is hard to see why the interpretation of the law of IAC should be bent so much to make the law of occupation applicable in a proxy war, when application of the law of NIAC would in many cases lead to the same result.
Furthermore, “dividing up the obligations and creating one rule for one group and another rule for a different party to the conflict is dangerous and would not form a coherent legal framework.”53 It would also lead to unclarity for armed groups as to the rules they
have to follow.54 It has been suggested that this lack of clarity could be taken away if the UNSC would adapt the law of occupation to expressly include occupation by proxy in resolutions on particular circumstances, “if the political will exists in a situation”.55 The
latter statement is exactly why this approach will probably remain a theoretical possibility, again noting the reluctance of States to ascribe non-State groups legitimacy.
48 Sylvain Vité, ‘Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual
Situations’ (2009) 91 IRRC 6974.
49 Gal (n 12); see also Djemila Carron, ‘When is a conflict international? Time for new control tests in IHL’ (2016)
98 IRRC 1019; Marco Sassòli, ‘Taking Armed Groups Seriously: Ways to Improve their Compliance with International Humanitarian Law’ (2010) 1 International Humanitarian Legal Studies 5.
50 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949,
entered into force 21 October 1950) 75 UNTS 287 (GC IV) art 64.
51 Sandesh Sivakumaran, The Law of Non-International Armed Conflict (OUP 2014) 546-549. 52 Gal (n 12) 74.
53 Alexander Gilder, ‘Bringing Occupation into the 21st Century: The effective implementation of occupation by
proxy’ (2017) 13 Utrecht Law Review 60, 75.
54 Ibid. 55 Ibid 77.
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2.3.3 State and individual responsibility
An argument that could be brought in favor of the application of the law of IAC to situations of proxy war, is that it would make it easier to establish State responsibility. However, as shown before, classification of an armed conflict and the establishment of State responsibility are two different fields which do not necessarily need to use the same criteria. Classification of an armed conflict as a NIAC or an IAC does thus not bear consequences on the establishment of State responsibility. Classification of an armed conflict can however have consequences for the establishment of individual responsibility.
Some acts are only criminalized under the law of IAC, and not under the law of NIAC.56 In IAC, war crimes are defined as grave breaches of the Geneva Conventions, or other serious violations of the laws and customs applicable in IAC.57 In NIAC, war crimes are serious violations of Common Article 3 or other serious violations of the war and customs applicable in NIAC.58 An example that shows the difference in criminalization is the
criminalization of torture. In an IAC, torture is a war crime when committed against an enemy combatant, or against a protected person having the enemy’s nationality or ethnicity or who is in another way objectively distinctive. For torture to constitute a war crime in NIAC, it must have been committed against an adversary member who laid down his weapons or is placed hors de combat, or against a protected person under control of the adversary.59
To apply the law of IAC to internationalized NIACs might then seem like a good idea because under the law of IAC there is more criminalization. However, to apply the law of IAC to people being held criminally responsible might clash with the principle of legality.60 If it is already hard for academics to understand at what point in ‘mixed conflicts’ or internationalized armed conflicts, the rules of NIAC or the rules of IAC apply, how are members of an armed group supposed to be aware of this? Especially for low-ranking members it will be hard to foresee the consequences of their actions and be aware of their
56 Decoeur (n 27) 474; Antonio Cassese, Paola Gaeta & John Jones (eds), The Rome Statute of the International Criminal Court. A Commentary. Volume I (OUP 2002) 1904-1905.
57 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187
UNTS 3 (Rome Statute) art 8(2)(a) and (b); GC I (n 7) art 50; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85 (GC II) art 51; GC III (n 53) art 130; GC IV (n 62) art 147.
58 Rome Statute (n 75) art 8(2)(c) and (e).
59 Liesbeth Zegveld, ‘Dutch Cases on Torture Committed in Afghanistan: The Relevance of the Distinction
between Internal and International Armed Conflict’ (2006) 4 Journal of International Criminal Justice 878, 880.
17 legal obligations.61 Even though these people are usually not prosecuted in international courts and tribunals, these courts and tribunals do shape the law applied by domestic courts that do prosecute lower ranking members.62 A proposed solution to the problem of legality is to include the nature of the conflict in the mens rea.63 Another solution to this problem could lay in the classification of proxy wars as a NIAC, though this would admittedly lead to less individual criminal responsibility for the members of the armed group that were aware of the conflict internationalization.
2.4 Conclusion
Proxy wars are defined by the relationship of control between an intervening foreign State and a NSAG. As shown in the first paragraph of this chapter, according to the current doctrine the tests of ‘effective control’ and ‘overall control’ are both to be used in their respective contexts. ‘Effective control’ is used in attributing acts of non-State actors to the State, and ‘overall control’ for conflict classification.
It is commonly held that State involvement amounting to ‘overall control’ over a NSAG ‘internationalizes’ the armed conflict and renders the law of IAC applicable. Nevertheless, the reasoning on which these assumptions are based, as well as the consequences of classifying a conflict as a NIAC or an IAC, pose some questions as to whether it indeed is logical to apply the law of IAC to proxy wars.
In the following chapters, the war in Yemen is described and classified in terms of the law of armed conflict, to further illustrate whether the ‘overall control’ test is indeed suitable for classification of a proxy war.
61 Decoeur (n 27). 62 Decoeur (n 27) 491. 63 Decoeur (n 27).
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3. The Yemeni war
In the introduction of this thesis, it was mentioned that the Arab Spring uprisings in 2011 sparked a new phase of unrest and conflict in Yemen. A ‘new phase’, because the roots of the current war in Yemen can be traced back to the 1962 Revolution.64 The origins and development of the conflict in Yemen are dealt with in the first part of this chapter. The Yemeni war is relevant for this thesis as it is often deemed a proxy war because of the involvement of Saudi Arabia and Iran in the conflict.65 The second paragraph examines the
roles of these countries in the conflict. The explanation of the conflict in this chapter is the foundation on which the next chapter builds in classifying the conflict in IHL terms.
3.1 Explaining the conflict
3.1.1 Origins of the conflict (1962 - 2004)
Yemeni society is traditionally a tribal community. The tribes are commonly represented by chieftains called ‘shaykhs’. These shaykhs are not to be seen as kings or presidents with supreme or coercive power. Rather, they must obtain their power through persuasion of the members of the tribe.66 Until 1962, Yemen was an imamic State. The 1962 Revolution led to a split between royalists and republicans, between tribes but also within tribes.67 The revolution ended in victory for the republicans and the establishment of the Yemen Arab Republic in the North (North and South Yemen were later unified in 1990). Nevertheless, the Republic did not enjoy support of the majority of the population. Because of this lack of legitimacy, the shaykhs that fought on the republican side were recruited in political positions as local patrons. Their policy-making was influenced by political and personal motives alike.68 The promises of abolition of social inequality and birthright privilege, as
well as a more even distribution of political participation, economic resources and development that was promised by the revolution, were not fulfilled. Even after the
64 Brandt (n 2).
65 See i.a. Vrushal T Ghoble, ‘Saudi Arabia-Iran Contention and the Role of Foreign Actors’ (2019) 43 Strategic
Analysis 42; The Associated Press, ‘Iran supreme leader urges support for Yemen’s Houthi rebels’ (ABC News, 13 August 2019) <https://abcnews.go.com/International/wireStory/iran-supreme-leader-urges-support-yemens-houthi-rebels-64949358> accessed 16 June 2020; Brandt (n 2) 208, 311.
66 Brandt (n 2) 20. 67 Brandt (n 2) ch 2. 68 Ibid.
19 emergence of a multiparty system, weakness of the State and dependence on dominant tribal personalities kept characterizing Yemen’s political environment.69 The new political position of the shaykhs drove a wedge between some of them and their tribes. This estrangement led to the members of these tribes essentially being detached from State influence. In general, it can be said that wherever shaykhs lost the connection with their tribal base, neglecting their tribal duties and not benefitting the tribe by their position, the Houthi movement found place to grow.70
The Houthi movement has its roots in the ‘Believing Youth’, an organization focused on social and religious activism in the context of the Zaydi revivalism.71 The Zaydis belong to a sect of Shia Islam, and the Zaydi revivalism emerged as a countermovement against the spread of radical Sunnism in the heartland of the Zaydi community. Following a dispute in 2001, a split occurred within the Believing Youth between those following Muhammad Izzan and those following Husayn al-Huthi. The second group was the core of the movement that later became known as the ‘Houthis’. Unofficially this group was also called ‘followers of the slogan’, the slogan being: ‘Death to America, Death to Israel, a Curse Upon the Jews, Victory for Islam’.72 The potential of the Houthi movement was reinforced
by the events of 9/11 and the following ‘Global War on Terror’ in which the Yemeni government sided with the US. Yemeni Muslims were exposed to television footage of civilian deaths in Afghanistan and the creation of Guantanamo Bay, where many Yemeni nationals were sent. The Yemeni government contributed to the war against terrorism by setting up a military campaign against Husayn al-Huthi, to thereby disprove American suspicions about the government’s links with radical groups. The cooperation between the US and the Yemeni government was widely unpopular amongst Yemeni civilians.
The people of Yemen were furthermore still dissatisfied with the increasing wealth and influence of shaykhs, who did not use this status to contribute to welfare and development of their tribes.73 The widespread dissatisfaction among the people in Yemen provided the ideal soil for al-Huthi to plant the seeds of the Houthi movement. The social revolutionary as well as political goals of the movement addressed local grievances. Al-Huthi collected funds for schools, provided local electrification and provided clean water supplies. He also started motivating people through lectures focusing on anti-imperialism, Zaydi revivalism,
69 Brandt (n 2) 345. 70 Ibid.
71 Ibid ch 4. 72 Ibid 132-133. 73 Ibid ch 4.
20
and the marginalization of the Sa’dah region and adjacent areas. Furthermore, he organized anti-American demonstrations and instructed his followers to shout the slogan after Friday prayers in mosques across Yemen. The latter led to increasing tensions between the Houthi movement and the government, and eventually to the Sa’dah wars beginning in 2004.74
3.1.2 The Sa’dah wars (2004 - 2010)
The brutal way in which the government forces waged the Sa’dah wars, led to sympathy for the Houthi movement and made it grow in size and fighting ability. Next to that, tribal feuds and rivalries started to merge with the wars because of alignments on the side of the Houthis or the side of the government.75 The killing of Husayn al-Huthi in September 2004 and the spreading of the picture of his body, meant as a deterrent, turned him into a martyr and only strengthened the conviction of al-Huthi’s followers.76 In the second Sa’dah war, the
indiscriminate use of force by the government caused tribes that were originally not Houthi loyalists, to side with the Houthi movement because of a common enemy.77 Because of this,
by the third war not all Houthi rebels were necessarily in it to support the ideology of Husayn al-Huthi, but were motivated by tribal feuds and revenge.78
At the outbreak of the fourth Sa’dah war in 2007, the situation hardly resembled the start of the wars in 2004. The conflict had become much more complex and explosive due to factors like tribal feuding, the emergence of a war economy, political rivalries, and foreign meddling.79 During this war, the government recruited irregular forces from the Sa’dah tribes, which irritated the local shaykhs. They felt that the crisis management of the government only led to expansion of the conflict. They also saw the recruiting of their tribesmen as weakening their power against the State. These feelings led to some of the most influential shaykhs in the Sa’dah region breaking with the regime.80 The fourth war
was supposed to end with the first Doha Agreement, a peace agreement negotiated through Qatari mediation. However, even though it seemed like the Houthi and government leaders were prepared to end the conflict, other people involved in the conflict were not.81 The
74 Brandt (n 2) ch 4. 75 Ibid ch 5. 76 Ibid 167-168. 77 Ibid ch 5. 78 Ibid 187. 79 Ibid 193. 80 Ibid 214. 81 Brandt (n 2) 237-242.
21 second Doha Agreement also failed. It was merely a reactivation of the first one, and contained vague and obscure phrases as well as unfeasible provisions.82
In the fifth and sixth war, the Houthis extended the territory under their control.83 Although during these wars, several ceasefires were concluded, they were never successful. Both the Houthis and president Salih, despite concluding ceasefires, repeatedly sent signals that they were committed to a military solution of the conflict instead of a political one.84 Furthermore, after six years of war all parties to the conflict lost trust in each other, which made a sustainable ceasefire or political solution to the conflict nearly impossible.85 In 2009 Saudi Arabia entered the conflict on the side of the Yemeni government, which gave president Salih little reason the end the military campaign against the Houthis since he now received funding and military support from the Saudi government.86 In early 2010, Saudi Arabia stopped its aerial bombing campaign, which put an end to hostilities and formed the necessary push for Salih to give peace a chance.87 Even though a peace agreement was
negotiated, this was not what ended the sixth war. Rather, the war was ended by verbal communication of the parties to the conflict and a sudden decision by president Salih to suspend hostilities.88
3.1.3 The civil war (2011 - 2020)
However, the end of the Sa’dah wars did not mean the end of the conflict. Between 2010 and 2014 the Houthis continued to expand their territory.89 In 2011, following an Arab Spring uprising, president Salih was forced to resign.90 He got injured by a terrorist attack and transferred to the US for medical care. There he was pressured by the White House not to return to Yemen. Salih’s vice president Hadi ran, unopposed, for office and became president in 2012.91 After his forced resignation, Salih started to collude with Abdulmalik al-Huthi, the current leader of the Houthi movement.92 Or rather, continued to collude, since
82 Ibid 247-248. 83 Ibid 297. 84 Ibid 318. 85 Ibid 319. 86 Ibid 296, 318. 87 Ibid 318. 88 Ibid 325. 89 Ibid 337.
90 Ibid 338; ‘Yemen crisis: why is there a war?’ (n 1).
91 ‘Yemen’s debilitating war’ (2018) 24 Strategic Comments ix. 92 Brandt (n 2) 338-339.
22
he had already begun providing the Houthis with arms and facilitating their expansion when calls for his resignation started.93 The change of president was supposed to cause more stability,94 but instead “the new president proved equally ineffective, particularly in dealing with attacks by jihadists, corruption and food scarcity.”95 The growing instability gave the
Houthis a chance to occupy and claim governmental control over the Sa’dah region. Many disillusioned Yemenis, including Sunnis, supported the Houthis at this point.96 In 2014, president Hadi came up with a plan to divide Yemen into six federal regions. This plan was received with outrage on the side of the Houthis, who brought the Hadi government under increasing pressure to step down.97 In September 2014, the Houthi rebels seized Sana’a.
In January of 2015, the Houthis seized the presidential palace. President Hadi and his government turned in their resignation (which would later be revoked), and the president fled the country in March 2015. These events triggered a coalition of Gulf States, led by Saudi Arabia, to launch a campaign of economic isolation and air strikes against the Houthi rebels.98 Now, five years later, this conflict is still going on. Al-Qaeda and IS have taken
advantage of the chaotic situation to seize territory in the south of Yemen and carry out deadly attacks.99 In November 2017, the launch of a missile towards Riyadh, the capital of Saudi Arabia, gave rise to an even tighter blockade of Yemen by the Saudi-led coalition. In the same month, Houthi fighters launched an operation to take full control of Sana’a. A month later, former president Salih was killed.100 In January 2020 hostilities between Houthis and coalition-led forces escalated again, with ‘fighting on several front lines, missile strikes and air raids.’101 In the figure below it is shown which parts of Yemen were
controlled by which group in December 2019.
93 Ibid 339.
94 ‘Yemen crisis: why is there a war?’ (n 1).
95 Vincenzo Ruggiero, ‘Yemen: Civil War or Transnational Crime?’ (2019) 28 Critical Criminology 503, 504. 96 ‘Yemen crisis: why is there a war?’ (n 1).
97 Brandt (n 2) 341.
98 ‘War in Yemen’ (Global Conflict Tracker)
<https://www.cfr.org/interactive/global-conflict-tracker/conflict/war-yemen> accessed 16 June 2020.
99 ‘Yemen crisis: why is there a war?’ (n 1). 100 Ibid.
23 Figure 1. Yemen: Areas of control and conflict102
3.2 The role of Saudi Arabia and Iran
The involvement of Saudi Arabia and Iran has led many to conclude the war in Yemen is a proxy war, in geopolitical sense, between these two regional powers.103 However, it has also been argued that this is a misconception and the conflict should be regarded as a civil war.104 This paragraph explores the roles of Saudi Arabia and Iran. This information is used
102 ‘Yemen crisis: why is there a war?’ (n 1).
103 See i.a. Ghoble (n 65); ‘Iran supreme leader urges support for Yemen’s Houthi rebels’ (n 65); Brandt (n 2) 208,
311.
104 Justin Chapman, ‘Yemen’s War is a Humanitarian Disaster that Must Be Resolved’ (Pacific Council on International Policy, 1 August 2017)
24
in the next chapter to determine whether a proxy war in legal sense is going on in Yemen and how this war could best be classified in IHL terms.
3.2.1 The role of Saudi Arabia
Saudi Arabia started militarily intervening in the Yemeni war in 2009, following cross-border movement of large numbers of smugglers, refugees and Houthi fighters.105 Saudi Arabia became more involved in spring 2015 when it started a bombing campaign, together with the United Arab Emirates (UAE), in support of the government of president Hadi.106 Since Saudi Arabia shares its border with Yemen, it has an interest in returning stability to the country.107 However, Saudi Arabia’s interest in the conflict also has a regional component. According to them, the Houthis are to be seen as an Iranian proxy. Iran uses them to further its own interests: weakening the position of Riyadh in their regional rivalry and the building of a strategic ring around Saudi Arabia.108 In this context, Saudi Arabia’s
actions are framed as defensive rather than offensive.
The policy of Saudi Arabia can be seen in two ways: either they really believe that the Houthis are a proxy of Iran, or they use this narrative to justify their actions and use their interference in the war to gain more control in the region.109 In the latter point of view it is plausible that Saudi Arabia tries to provoke Iran to interfere more strongly in the war. This would prevent Iran from building stronger relationships with the West and thereby strengthening its position in the region. Proof that Saudi Arabia is trying to provoke Iran can be seen in the brutality of its bombings, causing heavy civilian casualties in areas controlled by the Houthis.110 In the former case, if Saudi Arabia genuinely believes the Houthis to be Iran’s proxies, this could be based on a misperception of the conflict since it is actually not that clear whether the Houthis are really controlled by Iran. Riyadh’s policy could however become a self-fulfilling prophecy. The longer and more brutally the bombing continues, the more the Houthis might want to try and find support of Iran, eventually making them dependent on aid from Tehran.111
105 Brandt (n 2) 308.
106 Daniel Byman, ‘Yemen’s Disastrous War’ (2018) 60 Survival 141, 146-147. 107 ‘Yemen’s debilitating war’ (n 91).
108 Swietek (n 3). 109 Ibid.
110 Ibid.
25
3.2.2 The role of Iran
Iran has already since the start of the Sa’dah wars in 2004 been accused of supporting the Houthis. However, apart from political support, military or financial assistance has been impossible to prove before 2011.112 It seems like Iran only took on a more supporting role towards the Houthis after Saudi Arabia intervened in the conflict in 2009.113 In January 2013 suspicion as to material support by Iran grew when a vessel shipping weapons under the Panamanian flag was searched by the Yemeni coast guard. However, it is only ‘suggested’ that this shipment came from Iran and was meant for the Houthis.114
Since 2014, and since the Houthi rebels became the de facto authority in Sa’dah, Iran’s support has grown.115 It is now generally held that Iran supports the Houthi rebels with financial means,116 arms supplies117 and military training.118 However, it is argued that “this
aid has been quite symbolic and it has had little major impact on the Houthis’ combat potential.”119 On the other hand, it is said that from 2016 on the aid from Iran to the Houthis
increased.120 Furthermore, it is not clear whether or to what amount Iran has influence over
the decision-making of the Houthis. An indication that this influence is not that large, is that the Houthis have gone against Iran’s advice multiple times.121 The alleged attempts by Saudi
Arabia to provoke Iran into increasing its aid to the Houthis, seem to have had little effect.122 Iran would be “unwilling to engage more seriously in this conflict because its interests in Yemen are limited and the potential costs would be incommensurate with the gains”.123
Tehran would not want to risk upsetting the process of its slowly normalizing of relations with the West.124
112 Brandt (n 2) ch 6. 113 Ibid 207.
114 Ibid; UNSC ‘Note by the President of the Security Council’ (2 June 2015) UN Doc S/2015/401. 115 Brandt (n 2) 208.
116 Saleem Haddad, ‘Yemen’ in Louise Arimatsu & Mohbuba Choudhury (eds), ‘The Legal Classification of the
Armed Conflicts in Syria, Yemen and Libya’ (Chatham House 2014) 31.
117 Bethan McKernan, ‘Who are the Houthis and why are they fighting the Saudi coalition in Yemen?’ The Guardian (London, 21 November 2018)
<https://www.theguardian.com/world/2018/nov/21/who-are-the-houthis-fighting-the-saudi-led-coalition-in-yemen> accessed 16 June 2020; Byman (n 106) 149; ‘Yemen’s Debilitating War’ (n 91); Swietek (n 3) 52; Seth G Jones, ‘War by Proxy: Iran’s Growing Footprint in the Middle East’ [2019] CSIS Briefs 1; Lis (n 5).
118 McKernan (n 117); Swietek (n 3) 52; Jones (n 117); Lis (n 5). 119 Swietek (n 3) 52. 120 Jones (n 117). 121 McKernan (n 117). 122 Swietek (n 3). 123 Ibid 52. 124 Ibid.
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3.3 Conclusion
Even though the Yemeni war started receiving international attention from 2014 on, the roots of the conflict can be traced back to the 1962 Revolution. In this revolution, the imam was dethroned and the country turned into a republic. However, this republic did not enjoy support of the majority of the population. In the years following, dissatisfaction and unrest grew under the population, which proved the ideal soil for Husayn al-Huthi to plant his Houthi movement. The social revolutionary as well as political goals of the movement addressed local grievances. Increasing tensions between the movement and the government escalated into the Sa’dah wars taking place from 2004 to 2010. Factors in the continuation of this conflict were outside interference as well as brutality of warfare by the government and the merging of tribal feuds and rivalries with the conflict. In these wars, the Houthi movement managed to gain control over a part of Yemen’s territory. After the sudden end of the Sa’dah wars in 2010, the Houthis continued to expand this territory.
The Arab Spring uprising in 2011 ushered in a new phase of the conflict. President Salih resigned and was succeeded by his vice president Hadi. Even though the change of presidency was supposed to create stability, the consequence was the opposite. The Houthis used this instability to occupy and claim governmental control over the Sa’dah region. The seizing by the Houthis of the presidential palace in 2015, led a Saudi-led coalition to interfere in the conflict with aerial bombing campaigns. Since Saudi Arabia shares a border with Yemen, it has an interest in returning stability to the country. However, its interest also knows a regional component. Unclear whether it really believes so, or uses this policy to provoke Iran, Riyadh claims the Houthis are Iran’s proxy. Iran has already since the start of the Sa’dah wars been accused of supporting the Houthis. However, military or financial assistance has been impossible to prove before 2011. It is now generally held that Iran supports the Houthi rebels with financial means, arms supplies and military training. It is unclear whether or to what amount Iran also has influence over the decision-making of the Houthis. However, Iran would be unwilling to seriously engage in the conflict because of not wanting to upset the process of normalizing relations with the West.
Generally it is held that, from a geopolitical point of view, the Houthis should not be seen as Iran’s proxy.125 This because the support of Iran for the Houthis does not seem
significant, and also because of the religious and political differences between them.126 The
125 Brandt (n 2) 208; Byman (n 106); Swietek (n 3); Chapman (n 104). 126 Brandt (n 2) 208.
27 next chapter will assess whether the Houthis should be seen as Iran’s proxies in legal context, and what that means for the classification of the conflict as a NIAC or an IAC.
28
4. Classification of the Yemeni war in IHL terms
The Rule of Law in Armed Conflicts project (RULAC), set up by the Geneva Academy of International Humanitarian Law and Human Rights, identifies multiple NIACs going on in Yemen:127 a conflict between al-Qaeda and the government, a conflict between several armed groups, and a conflict between the Houthis and the government. For the purpose of this thesis, the emphasis lays on the latter conflict. It is argued here that the conflict during the Sa’dah wars clearly was a NIAC. However, the question is whether the interventions in the present conflict by Saudi Arabia and Iran have changed the nature of the conflict.
4.1 Criteria non-international armed conflict
For a NIAC to exist, two criteria need to be fulfilled: the armed violence needs to reach a certain level of intensity, and any NSAG has to have a certain level of organization to qualify as a party to the NIAC.128 State’s armed forces are presumed to satisfy the organization requirement.129 Factors that may be relevant in deciding the intensity of the conflict are the seriousness of attacks, in which can be taken into account the number of casualties, the extent of material destruction and the number of civilians fleeing combat zones; the number, duration and intensity of individual confrontations; the number of persons and type of forces partaking in the fighting; the spread of clashes over the territory and over a period of time; any increase in the number of government forces and mobilization and the distribution of weapons among both parties to the conflict; the type of weapons and other military equipment used; the blocking or besieging of towns; existence and change of front lines between the parties; the occupation of territory, as well as; whether the conflict has attracted the attention of the UNSC, and, whether any resolutions on the matter have been passed.130 Indicative for the level of intensity can also be the way the State deals with
127 ‘Non-international armed conflicts in Yemen’ (Rule of Law in Armed Conflicts)
<http://www.rulac.org/browse/conflicts/non-international-armed-conflicts-in-yemen> accessed 16 June 2020.
128 Prosecutor v Tadić (Judgment Trial Chamber) IT-94-1-T (7 May 1997) §562.
129 Prosecutor v Haradinaj and others (Judgment Trial Chamber) IT-04-84-T (3 April 2008) §60; ICRC
Commentary GC I (n 7) 429.
130 Prosecutor v Limaj and others (Judgment Trial Chamber) IT-03-66-T (30 November 2005) §90; ICTY
Haradinaj (n 149) §49; Prosecutor v Boskoski and Tarculovski (Judgment Trial Chamber) IT-04-82-T (10 July 2008) §177.
29 irregularities: the way force is used against the armed group(s) and how human rights are interpreted.131
With regard to the organization criterion, also several indicative factors are identified. These factors include the existence of headquarters; designated zones of operation; the existence of a command structure as well as disciplinary rules and mechanisms within the group; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations; its ability to define a unified military strategy and use military tactics, and; its ability to speak with one voice, negotiate and conclude agreements.132 Furthermore, “the leadership of the group must, as a minimum, have the ability to exercise some control over its members so that the basic obligations of Common Article 3 of the Geneva Conventions may be implemented.”133 However, the
criterion of organization does not require NSAGs to be as organized as State armed forces, and the organization does also not need to be at the level required by AP II.134
The first article of AP II confines its material scope to NIACs taking place between a State and its dissident forces or other organized armed groups “which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”135 So, not all
NIACs are covered by AP II, because it has a higher threshold for application than CA 3 GC.136 When the threshold for AP II is met both CA 3 and AP II will apply, if the State is a party to AP II.137 Where the threshold for AP II is not met, only CA 3 applies.
‘Responsible command’ exists when an organization is capable of planning and carrying out sustained and concerted military operations, as well as capable of imposing discipline in the name of a de facto authority.138 By ‘sustained’ is meant that the operations are continuous. ‘Concerted’ means ‘done in agreement according to a plan’.139 This amounts to
a higher degree of organization than required for CA 3. Furthermore, for AP II to apply the
131 ICTY Boskoski and Tarculovski (n 130) §178. 132 ICTY Limaj (n 130) §90.
133 ICTY Boskoski and Tarculovski (n 130) §196. 134 Ibid §197.
135 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims in
Non-International Armed Conflicts (adopted 12 December 1977, entered into force 7 December 1978) 1125 UNTS 609 (AP II) art 1.
136 ICRC, Commentary on the Second Additional Protocol, 1987 <
https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475> accessed 16 June 2020, 4453.
137 Ibid 4457. 138 Ibid 4463. 139 Ibid 4469.
30
armed group must have control over a part of the territory, while for CA 3 this is only an indicative factor for the organization requirement. The criteria of responsible command and control over territory, establish the basis on which can be said that the armed group is able to abide by the rules of the protocol.140
4.2 Applying the criteria to the Yemeni war
During the Sa’dah wars, the conflict between the government and the Houthis was classified as a NIAC.141 In the current conflict, it is said that an armed conflict has existed between the Houthis and the government from March 2011.142 There is no question that the Houthis have satisfied the organization requirement in the Sa’dah wars, satisfied it in 2011 and still satisfy it until this day. In March of 2011, they were able to oust government forces from Sa’dah city and install a new administration. This is proof of their ability to launch military operations as well as of the effectiveness of their leadership. Furthermore they were able to establish control over territory, recruit new members, provide military training, secure access to weapons and other military equipment, and to take part in political negotiations.143
The degree of control the Houthis had over certain territories in Yemen, was enough to be able to carry out sustained and concerted military operations and to impose discipline in the name of a de facto authority. Therefore, the Houthis were able to implement AP II. Because Yemen is a party to AP II, thus the Protocol applied.144
At present, the Houthi movement still lives up to the organization requirement. They are still able to gain access to weapons, recruits and military training.145 Furthermore, they have expanded their control over Yemeni territory (see Figure 1) and they have a clear command structure, as shown in Figure 2.146 The Houthis furthermore have spokespeople who are able to represent the movement in peace talks, like the negotiations with the Hadi government in Sweden.147 The Houthis are said to exercise de facto authority in the areas they control,
140 ICRC Commentary AP II (n 136) 4470. 141 Haddad (n 116).
142 Ibid 29. 143 Ibid. 144 Ibid 30.
145 UNSC ‘Letter dated 25 January 2019 from the Panel of Experts on Yemen addressed to the President of the
Security Council’ (25 January 2019) UN Doc S/2019/83.
146 Ibid.
31 and since the degree of control they hold does not seem diminished since 2011, it can be assumed AP II is still applicable.148
Figure 2. Structure of the Houthi movement149
Control over territory is not only an indicative factor for organization, but also an indicative factor for the intensity of the conflict. The takeover of Sa’dah city by the Houthis in March 2011 followed after violent exchanges with pro-government armed groups.150 During this
takeover, most property of the provincial governor was either seized or destroyed.151 In the spring of 2011, violence broke out in the region of Hajjah, southwest of Sa’dah, and left almost 50,000 citizens fleeing their homes. The Houthis have been held responsible for this escalation of violence, and were furthermore accused of lying landmines in the region.152 Next to that, the Houthis took part in the Arab Spring uprisings against the government,153
148 See UNGA ‘Situation of human rights in Yemen, including violations and abuses since September 2014. Report
of the Group of Eminent International and Regional Experts as submitted to the UNHCHR’ (9 August 2019) UN Doc A/HRC/42/17 3.
149 UN Experts Report on Yemen 2019 (n 145). 150 Haddad (n 116) 25.
151 Lucas Winter, ‘Yemen’s Huthi Movement in the Wake of the Arab Spring’ (2012) 5 CTC Sentinel 13. 152 Ibid.
153 UNSC ‘Letter dated 20 February 2015 from the Panel of Experts on Yemen established pursuant to Security
Council resolution 2140 (2014) addressed to the President of the Security Council’ (20 February 2015) UN Doc S/2015/125.
32
to which the government reacted with severe violence.154 People killed during these protests are estimated around 1,000 or 2,000. The number of internally displaced persons has risen by 100,000 from mid-2011 to March 2012.155 In October 2011, the UNSC adopted Resolution 2014 (2011) expressing concern about the deteriorating security situation, ‘including armed conflict’, in Yemen.156 In February of 2014 the UNSC adopted a new
resolution, ‘determining that the situation in Yemen constitutes a threat to international peace and security in the region’.157 Later that year, after days of heavy fighting,158 the Houthis established control over Sana’a. Fighting between the Houthis and the government increased even further in 2015, causing president Hadi to flee the country.159 As described in the foregoing chapter, these events motivated a Saudi-led coalition to militarily intervene in the conflict. From March 2015 to June 2019 more than 7,000 civilians were killed and more than 11,000 injured as a direct result of the armed conflict.160 Over the years, the UN
has reported airstrikes by the coalition, use of indirect fire weapons by the Houthis and the Yemeni government, and Houthi use of landmines. All parties to the conflict are suspected of indiscriminate use of weapons.161 Furthermore, the blockade of Yemen by the Saudi-led
coalition is deemed to be a violation of IHL.162 As mentioned in the foregoing chapter, in January 2020 hostilities between Houthis and coalition-led forces escalated again. From all this information, it can be inferred that the intensity level required for a NIAC to exist, has been reached from 2011 until now.
4.3 The influence of foreign intervention on classification of the Yemeni war
The interference in the conflict by the Saudi-led coalition on the side of the Yemeni government has no influence on the classification of the conflict as a NIAC. The intervention of a third State in a NIAC on the government’s side, is not able to change the
154 Haddad (n 116) 23. 155 Ibid 24.
156 UNSC Res 2014 (21 October 2011) UN Doc S/RES/2014. 157 UNSC Res 2140 (26 February 2014) UN Doc S/RES/2140.
158 ‘How Yemen’s capital Sanaa was seized by Houthi rebels’ BBC News (London, 27 September 2014)
<https://www.bbc.com/news/world-29380668> accessed 16 June 2020.
159 UNSC ‘Letter dated 22 January 2016 from the Panel of Experts on Yemen established pursuant to Security
Council resolution 2140 (2014) addressed to the President of the Security Council’ (26 January 2016) UN Doc S/2016/73.
160 UNGA Human Rights report Yemen (n 148).
161 Ibid; UN Experts Report on Yemen 2019 (n 145); UNSC ‘Letter dated 27 January 2020 from the Panel of
Experts on Yemen addressed to the President of the Security Council’ (28 April 2020) UN Doc S/2020/326.
