Seeking State Responsibility for Violations of Socio-Economic Right in Yemen : Study of whether legal State responsibility for violations of the right to food, water and health, as guaranteed through International Huma

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Seeking State Responsibility for Violations of Socio-Economic

Rights in Yemen

Study of whether legal State responsibility for violations of the right to food, water and health, as

guaranteed through International Human Rights Law and International Humanitarian Law during

the armed conflict in Yemen, is reflective of the reality, or whether there is a gap in State

responsi-bility.

Name student: Eva van Heukelom Supervisor: prof. mr. Liesbeth Zegveld

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Abstract

With the belief in mind that minimum basic needs to be guaranteed through the granting of socio-economic rights, this thesis sought to answer the question whether a responsibility gaps exists for violations of socio-economic rights of the Yemeni people. The armed conflict in Yemen, which can be traced back to early 2011, when the president of the country was forced to resign and the politi-cal transition to his successor failed, has lead the Yemeni people to suffer from the worst man-made humanitarian crisis in the world. The Houthi insurgency, aligned with the former president, gained control over significant parts of the country and the intervention of the Saudi-led Coalition on be-half of the Yemeni government, has caused the conflict to escalate as far as putting 21 million peo-ple at risk. An estimated 7000 peopeo-ple has died so far due to hostilities and almost the entire popula-tion is in need of humanitarian assistance. While the country is further bombed into famine and dis-ease, there has been little effort to call the relevant States for responsibility. The selected socio-eco-nomic rights for this thesis are the right to food, the right to water and the right to health and their content as guaranteed in international human rights law and humanitarian law will be applied to the acts of the relevant States. If one were to strictly speak of State responsibility, there would quite clearly be a gap for the responsibility of the human rights violations in the Houthi controlled area. This would however ignore the human rights obligations of those that do control the area, namely the non-State armed groups, most importantly the Houthi insurgency, do have under international law. Additionally, the lack of control of control or force majeure does not fully exclude the Yemeni government from responsibility. The aforementioned does however not take away the concern that many of the violations discussed here were the direct effect of the acts of the Saudi-led Coalition, for which no human rights obligations could be proven. The stricter alternatives recognised are too limited to establish responsibility for the Saudi-led Coalition and this is problematic. It shows that international law is not able to attribute conduct leading to human rights violations to the most im-portant actor of the conflict, despite the fact that its method of warfare is quite representative of that of States that are currently mostly impacting the lives of peoples living in armed conflict. The exis-tence of an armed conflict means the people of Yemen are not solely dependent on human rights law, but can additionally rely on rules of international humanitarian law. While the right to food, water and health can definitely be found in different rules of international humanitarian law the lev-el of protection granted by it is not equal to that of human rights law. For the time being, the Saudi-led Coalition has the largest influence on their ability to have access to basic needs. At the same time however, through international humanitarian law they are not obliged to provide a standard which is higher than those of the ICESCR core minimum. This protection would already put the people of Yemen in a position which would be an improvement beyond any expectation. This how-ever says more about the unimaginable atrocity of their current circumstances, than it does over the offered standard of protection. Additionally, while the protection of the people might be provided by the rules of international human rights law, the recognition of individuals as the beneficiaries is not recognised in the same manner as in the human rights law context. There is therefore a gap in the State responsibility recognised by contemporary international law, concerning the violation of the socio-economic rights of the people of Yemen.

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1. Introduction

1.1 Introduction to topic

The start of the conflict in Yemen can be traced back to early 2011, when protests inspired by the ‘Arab Spring’ resulted in Ali Abdullah Saleh resigning his longtime presidency. What started as a peaceful protest, has transformed into the worst man-made humanitarian crisis in the world. The newly recognised president Hadi was unsuccessful in gaining control over the 1 territory and the Houthi insurgency, aligning with former president Saleh, quickly managed to gain control over the territory in 2014. The Saudi-led intervention on behalf of the Hadi ad-ministration added fuel to the fire and currently 21 million Yemenis are lacking access to ba-sic needs such as food and medical facilities. 2

These basic needs are enumerated in several treaties of international human rights, providing protection to individuals against an arbitrary exercise of power by their govern-ment. While the sovereign State as guarantor provides a good starting point, human rights are often affected by cross border activity by other States. The individual is therefore left vulner-able if State responsibility end there. This requires either for human rights to be guaranteed 3 in areas of law that are binding upon those States or by extraterritorial application of human rights treaties. The conflict in Yemen is an example of human rights violated by the cross border activity of other States. The Saudi-Arabia-led coalition plays a fundamental role in the conflict and has carried out numerous attacks leaving many civilians killed or injured. While 4 the Houthis and certain other non-State armed groups such as Al-Qaeda in the Arabian Penin-sula, have had an continuous impact on the social, cultural and political situation and the armed conflict, no State involvement can be proven on their sides and the law applicable to

UN News Service, ‘Yemen: As threat of famine looms, UN argues Saudi-led coalition to fully lift blockade of 1 Red Sea ports’ (UN News Agency, 2017)

Tom Ruys, Luca Ferro, ‘Weathering the Storm: Legality and Legal Implications of the Saudi-led Military In

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-tervention in Yemen’ (2016) 65 (1) ICLQ 61, 62

Fons Coomans, Menno T Kamminga, ‘Comparative Introductory Comments on the Extraterritorial Applica

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-tion of Human Rights Treaties’ in: Fons Coomans, Menno T Kamminga, Extraterritorial Applica-tion of Human

Rights Treaties (Intersentia 2004) 1-3

United Nations General Assembly, ‘Children and armed conflict: Report of the Secretary-General’ (20 April

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non-State actors would be a completely different research topic entirely. Their involvement will therefore only briefly be discussed.

This thesis will describe the armed conflict in Yemen from its start in 2014 until July 2018 and will focus on the State responsibility for the violation of socio-economic rights of the Yemeni people during that time. While describing these events, it will be shown which State in practice is responsible for the act that lead to the violation of the socio-economic right. It will then be assessed to what extent international law as it stand today allows to legally hold that State responsible. By assessing this, the question can be answered to what extent, a gap exists between the responsibility de facto and the responsibility de jure, and where this gap exist exactly. Put differently, this thesis will answer the question whether the international State responsibility for violations of socio-economic rights of the Yemeni people as guaranteed in international human rights law and humanitarian law can provide enough protection to the Yemeni people or whether a responsibility gap exists?

1.2 Personal motivation

The conflict in Yemen exemplifies why socio-economic rights need to be our main priority and the importance of extraterritorial human rights responsibilities. As this research will show to what extent States can be held accountable for the wrongdoings in Yemen, it will also show where international law is currently falling short. While the Yemeni government, Houthi insurgency and Southern separatists fight over their country, the Yemenis are left without any protection. Meanwhile the interference by the Saudi-led Coalition is only further destabilising and destroying the country while any call for responsibility is waived by Saudi Arabia by asking Iran to stop supporting the Houthi insurgency to help their ‘humanitarian efforts’ in Yemen. This lack of responsibility is not problematic solely in dealing with the 5 consequences of the conflict, it further attributed to the conflict and represent the problem of impunity of States as Saudi Arabia and the UAE. It has also allowed for further disintegration of the country, which was already struggling economically and due to the activities of AQAP, the separatists in the south and the Houthis. It will now continue to be breeding ground for various other non-state armed groups. Many civilians lives are lost so far, if not because of a

United Nations Human Rights Council, ‘The situation of human rights in Yemen, including violations and

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direct attack, due to the destruction of their basic needs. Yemen might not be an important world power, it is a country of 23 million people and these people simply deserve better than to be bombed into famine and other preventable causes of death without any call for respon-sibility.

1.3 Objectives

The objective of this research are the following. First, if and to what extent socio-economic human rights are guaranteed through international human rights law and international human-itarian law. These rights are clearly guaranteed through the ICESCR, but are sometimes re-garded more as guidelines than a legal obligation. Furthermore, it is only accepted to be bind-ing upon the State within its territory or fallbind-ing under its jurisdiction the victims of the viola-tions are. By approaching the content of these law through different legal instruments, it will be shown to what extent these difficulties of the ICESCR can be overcome already. Second, the conflict appears to be completely funded and run by foreign States, but still qualifies as a non-international armed conflict. To what extent these foreign States can be held accountable for their acts, will be the main objective of this thesis. Assessing State responsibility as if the Coalition States merely ‘back’ the Yemeni government would be profoundly misleading, so the actual role played by the Coalition States will be thoroughly described. This will make it possible to push the possible legal State responsible to a maximum and to compare the legal situation with the reality. A reality in which the human rights of the Yemeni people are mainly violated by foreign parties.

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2. Conflict in Yemen and the violation of socio-economic

rights

The main purpose of this chapter is to present the extent of the armed conflict in Yemen and how this has impacted the Yemeni people. To provide a true understanding of the conflict, it is important to take the socio-economic situation and political tension before the start of the conflict into account. Furthermore, it will be made clear as much as possible, the socio-eco-nomic situation since the start of the conflict and as much as possible, which attacks caused it. In order to be able to attribute the conduct to the relevant State, the involvement of the Yemeni government and the Saudi-led Coalition will be discussed separately.

2.1 The socio-economic situation in Yemen: before the conflict

To get a sense of understanding of this conflict, the history and especially the social and eco-nomic situation in Yemen before and up to the conflict will be discussed briefly. The “Repub-lic of Yemen” has only come into existence in 1990, after years of efforts to reunite the north and south into a single Yemeni State. Sana’a and Aden were the capitals of these two States and still have remained the most important cities, with Sana’a being the current capital of the Republic of Yemen. 6

The idea of one unified Yemen had long been wished for due to the cultural and eco-nomic ties between the areas. Until the beginning of the 20th century, Yemen had never been ruled by one and was a tribal society, until the colonial occupation by Great Britain and the Ottoman Empire. The former ruled the south and the latter the north. Following an uprising 7 in 1962, the Arab Republic Yemen, North-Yemen, was called out and after an internal strug-gle after the leaving of the United Kingdom, the People’s Democratic Republic Yemen (South-Yemen) was created in 1970. 8

Paul Dresch, ‘Turkey, Britain and Imam Yahya: the years around 1990’ in: Paul Dresch, A History of Modern

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Yemen (Cambridge University Press 2000) 160-164

Lisa Wedeen, ‘Imagining Unity’ in: Lisa Wedeen, Peripheral Visions: Publics, Power and Performance in

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Yemen (University of Chicago Press 2008) p. 32-34

Wedeen (n 7) 23, 50-51; Dresch (n 6) 160-165

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There is no definite explanation for the uniting of the two States in 1990 after they had fought in an armed conflict in 1972 and 1979 and had quite a different development throughout the 20th century. The main reason appears to be to solve the worsened economic 9 situation. However, tension between the north and south remained, as did the socio-economic problems, such as inflation, unemployment and water scarcity. The World Bank has even 10 described Yemen as one of the most water-scarce countries in the world. 11

2.2 The socio-economic situation in Yemen since the conflict

In 2011, the transition of the three-decade presidency of Saleh to his former vice-president Hadi was, with the assistance of the UN, the EU and Gulf Cooperation Council, negotiated as a two-phased transition period. It was boycotted by the Houthi insurgency and the Southern 12 separatist movement, but nevertheless received a substantial mandate from the Yemeni people who had long felt that the president was only serving his own interests and the interests of the northern part of the country. The Houthi insurgency started of as a small group of religious 13 extremists who took up arms in an attempt to establish a share of power with the government. The Houthis mainly originate from the Saada province, an impoverished region which has often been seen as the centre of Zaydism, a branch of the Shia Islam. This partly explains 14 why the Houthi’s are often seen as receiving support by the Islamic Republic of Iran, while the Sunni Muslim government, representing the Shafi’i majority of the country, is supported by Sunni countries like Saudi-Arabia and its coalition of eight other Sunni countries. 15

The other non-state armed group which plays a significant role in the conflict are the southern separatist movement. This movement wishes to get autonomy in the “Al Janoob Al

Dresch (n 6) 260-265

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Wedeen (n 7) 50-54

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World Bank Group, ‘Input to the Yemen Policy Note no.4. on Inclusive Services Delivery. Addressing the

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Challenge of Extreme Water Scarcity for Reconstruction and Beyond’ (World Bank Group, 2016) Freedom House, ‘Freedom in the World 2018 - Yemen’ (Freedom House, 2018)

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Ruys, Ferro (n 2) 63-69

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Lucas Winter, ‘Conflict in Yemen: Simple People, Complicated Circumstances’ (2011) 18 (1) MEP 102,

105-14

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Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples - Yemen: Zaydi

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Har” (the Free South), after about 20 years of a country struggling to overcome differences after its reunification. There has been tension between Saleh’s leadership and the Southern provinces ever since the 1994 civil war between the north and south. The northern based regime was not likely to let the region secede, inter alia because of the region’s oil reserves. Earlier this year, the Southern Transitional Council (STC), an alliance of the Southern sepa-ratists and the Yemeni government which managed to work for 3 years of the conflict, was broken by the STC. The unrest in the

Southern regions started around the same time as the uprising of the Houthi insurgency, and together with the unrest caused by Al Qaeda on the Arabian peninsula (AQAP) and the war against them, the collapsing economy and grow-ing poverty, one can begin to start to un-derstand the beginning of the conflict and the need for a political transition in 2011. 16

It has been over seven years since the start of the political transaction in Yemen and the scale of the current crisis is unimaginable. Currently the State is facing the world’s largest food cri-sis and cholera epidemic. Meanwhile, the armed conflict is still not addressed by the in17 -ternational community and the Yemeni government has failed to even attempt to acquire the necessary food, medicine and water. The country depends on humanitarian organisations to fill this gap. Prices for the few supplies that are left in the country have increased up to 25 percent due to the scarcity and inflation. Yemen does not only suffer from water and food 18 shortages, but also the shortages health care and medicine. While the latter cannot prevent a

Freedom House (n 12)

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With more than half the population considered food-insecure by the end of 2017. This has only gotten worse,

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see: Institut de Relations Internationales et Stratégiques, ‘Humanitarian Foresight Think Thank - Yemen Six Month Economic Analysis’ (IRIS, 2017) 7-8; Freedom House (n 12)

UN News Service (n 1)

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food crisis, the lack thereof can make food shortages more lethal. The majority of the popu19 -lation lacks access to health services, an estimate 70.000 to 100.000 people have been killed in the conflict and over 300 health facilities have been damaged or destroyed. Less than half 20 of the country’s health facilities are functioning and even more are likely to close due to lack of water and medicine. This leaves 14 million Yemenis without access to adequate health21 -care. The difficulty of accessing water has lead to the outbreak of several diseases, most 22 importantly of Cholera. This has affected children in particular. The outbreak is mostly 23 caused by the compromised sewer networks in the six main cities and a general lack of access to clean water. Already in 2017 there was an estimated 10 million people in acute need of as-sistance for water, food, health care or all the above. This is just those in acute need, the total of 21 million people, almost the entire population, is in need of some kind of humanitarian aid. 24

2.3 The involvement of Saudi-Arabia and other Coalition States

On March the 26th of 2015, the Saudi-led Coalition launched its first attack called ‘Operation Decisive Storm’ (see map below) on Yemeni soil, in order to “protect the people of Yemen and its legitimate government from a takeover by the [Houthi rebels]”. According to state25 -ments issues by the govern-ments of the coalition States, the assault was launched after a di-rect request from President Hadi. The conflict has had a significantly increased dramatical 26

Alex de Waal, ‘Demography, Economics, Public Health’ in: Alex de Waal, Mass Starvation: The History and

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Future of Famine (Polity Press 2018) 92

World Health Organisation ‘Annual Report 2017 - Yemen’ (World Health Organisation, 2017)

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UN News Service (n 1)

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Institut de Relations Internationales et Stratégiques (n 17)

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World Health Organisation (n 20)

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UN News Service, ‘Amid alarming spike in violence, looming famine, Yemen gripped by uncertainty - UN

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officials’ (UN News Service, 2017) Ruys, Ferro (n 2) 61-62

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Statement issued by the Kingdom of Saudi Arabia, the United Arab Emirates, the Kingdom of Bahrain, the

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State of Qatar and the State of Kuwait, send on the 26 March 2015 and send to the United Nations, see: United Nations Security Council, ’Identical letters dated 26 March 2016 from the Permanent Representative of Qatar to the United Nations addressed to the Secretary-General and the President of the Security Council’ (27 March 2015) UN Doc S/2015/ 217

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impact on the lives of the Yemenis since the start of the air strikes by the Saudi led coalition. 27

Saudi-led Coalition air strikes have repeatedly struck civilians over the last three years. Many airstrikes have been targeted civilian activities such as weddings, funerals and food markets. 28 The Saudi-led coalition has been accused of using cluster initiations, causing civilian death even after the hostilities have died down. Not just by their choice of weapon, but additional29 -ly by the general indiscriminate and disproportionate airstrikes, thousands of civilians have been killed. Even after Saudi Arabia pledged to reduce the number of civilian deaths at the 30 end of 2017, six coalition attacks have been documented, killing at least 55 civilians. It is 31 hard to establish an exact causality between these attacks and the exact State participating in the attack, since no exact information on their role in the unlawful airstrikes is provided.

United Nations General Assembly (n 4) §164

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‘Yemen: Saudi coalition air raids kill 20 at wedding in Hajjah’ (23 April 2018) Al Jazeera; ‘Yemen: From

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civil war to Ali Abdullah Saleh’s death’ (5 December 2017) Al Jazeera; Middle East Institute, ‘Chronology: Jan-uary 16, 2017 - April 15, 2017’ (2017) 71 (3) MEJ 450, 478

Amnesty International, ‘Yemen: Children among civilians killed and maimed in cluster bomb

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‘minefield’ (Amnesty International, 2016)

Human Rights Watch, ‘Yemen: All Sides Fuel Humanitarian Crisis’ (Human Rights Watch, 2018)

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vestigations are conducted by their own agency and even basic information on the specific involvement of each State or whether they have been held accountable is not released. 32

The aforementioned practice of the Saudi-led Coalition have caused many civilians to suffer and there have been several account of breaches of international humanitarian law. The estimated number of civilian deaths caused by direct attacks, currently somewhere around 7000, does not even compare with the extreme situation of the country due to attacks affected the access to food, water and medical facilities the people suffer due to the acts of the parties involved. 33

The clearest example of the former is the continuing blockade of humanitarian aid. The coalition imposed a naval and air blockade since the beginning of their involvement in the conflict in March of 2015. The blockade prevented the supply of food, fuel and medicine to civilians and it an attempt of the Coalition to weaken the Houthi insurgency. The blockade was more restrictive at times, including all of Yemen’s entry ports, but always having an 34 impact on the civilian access to goods needed for survival. Previously it was mentioned how millions of Yemenis are in dire need of water, food, fuel and medical care. People heavily de-pended on the humanitarian aid to survive. Even before the armed conflict, the majority of 35 Yemen’s food was imported via the entry points which were now closed of by the Coalition. 36 The blockade worsened the food insecurity and the Cholera epidemic. Besides the stopping 37 of goods, the Coalition has also restricted the access of humanitarian workers. 38

Human Rights Watch, ‘Yemen: Hiding Behind Coalition’s Unlawful Attacks: Lack of Transparency Under

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-scores Need for International Inquiry’ (Human Rights Watch, 2017) See Appendix I for an overview of these acts

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During 2017, especially in response of a missile strike in Saudi Arabia’s airport in Riyadh on the 4th of No

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-vember 2017. See: Human Rights Watch, ‘Yemen: Coalition Blockade Imperils Civilians’ (Human Rights

Watch, 2017); UN News Service, ‘UN aid official in Yemen urges lifting of blockade, says millions a ‘step away

from famine’ (UN News Service, 2017)

An estimated 85 to 90 percent of all food, see: UN News Service (n 1); Institut de Relations Internationales et

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Stratégiques (n 17)

Human Rights Watch, ‘Yemen: Coalition Blockade Imperils Civilians’ (Human Rights Watch, 2017); UN

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News Service, ‘UN aid official in Yemen urges lifting of blockade, says millions a ‘step away from famine’ (UN

News Service, 2017)

Amnesty International, ‘Report 2017/18 - Yemen’ (Amnesty International, 2018)

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The United Arab Emirates (UAE) initial involvement in the conflict was solely on the side of the Saudi-led coalition, deploying troops for the fight on behalf of the Yemeni government. After Saudi-Arabia, the UAE was seen as the most important Coalition State. Earlier this year, when the Southern Transitional Council stopped its alliance with the Yemeni govern-ment, the STC militias have taken control over Aden, forcing the Hadi administration out. 39 Saudi-Arabia continues to support the Yemeni government, but the UAE has additionally started supporting the Southern separatists in January 2018. The UAE still claimed to support the Yemeni government, but its most recent deployment of Emirati troops in the island of So-cotra did not have prior consent of the Yemeni government and the Yemeni government has made a public statement calling it an attempt to colonise the country. In its recent battle in 40 June 2018, the UAE appears to support the Coalition yet again in the battle for the Hodeidah airport. 41

April Longley Alley, ‘Eight Days in Aden- a Forgotten City in Yemen’s Forgotten War’ (International Crisis

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Group, 2018)

International Crisis Group (n 39). Additionally, several news articles such as Mohammed Mukhaskaf, ‘Yemen

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Civil war: Deadly clashes between separatist and government forces deepens split between Gulf allies’ (28 Jan-uary 2018) The Independent; Al Jazeera, ‘UAE-backed group vows to ‘overthrow’ Yemen’s government’ (22 January 2018) Al Jazeera; Raf Sanchez, ‘Yemen’s government ‘prepares to flee’ as UAE-backed separatists seize control in Aden’ (30 January 2018) The Telegraph; Mohammed Vall ‘Yemen: UAE attempting to ‘colonise’ Socotra’ (13 May 2018) Al Jazeera; ‘Anger erupts on Yemen’s Socotra as UAE deploys over 100 troops’ (3 may 2018) Al Jazeera

BBC News, ‘Yemen war; Why the battle for Hudayday matters’ (13 June 2018); Patrick Wintour,

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3. Socio-economic rights guaranteed through international

human rights law and international humanitarian law

In this chapter the substantive law to determine the socio-economic right violations are dis-cussed. The focus is on the right to food, right to water and the right to health. These rights, although only explicitly mentioned in the ICESCR, are also guaranteed through other human rights instruments and International Humanitarian Law. The legal norms presented here are the result of an extensive assessment of international human rights law and humanitarian law and only those most relevant are presented here. The norms presented are thus not exclusive and additional norms may apply, but are not expected to provide more protection than those presented here.

3.1 Socio-economic rights guaranteed in international law

While the two pillars of international human rights law, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cul-tural Rights (ICESCR) were recognized as equal, in practice there has been a greater em42 -phasis on civil and political rights than on economic, social and cultural rights. Under the 43 ICESCR, States have legally binding obligations to take steps to the maximum of their avail-able resources to achieve progressively the realization of the rights mentioned in that Covenant. Furthermore, they cannot limit a right in such a way that the minimum core of 44 that right would be affected, since this would go against the nature of that right. The mini45 -mum core obligations reflect a “bottom-line” of obligations and need to be guaranteed re-gardless of the level of economic development or political stability of the State concerned.

Manisuli Ssenyonji, ‘The International Legal protection of Economic, Social and Cultural Rights’ in: Man

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-isuli Ssenyonjo, Economic, Social and Cultural Rights in International Law (Hart Publishing 2009) 2-4 Idem

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Article 2 ICESCR

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Article 4 ICESCR: Amrei Muller, ‘Limitations to and Derogations from Economic, Social and Cultural

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The conflict in Yemen reflects the importance socio-economic rights. The socio-46 economic rights cannot only be found in the ICESCR, they are also related to the enjoyment of other human rights found in instruments as the ICCPR. The clearest example of this is the right to life. Furthermore, the socio-economic rights themselves have been recognized also in other human rights treaties which might grant additional protection. Moreover, human 47 rights law is not the only area of international law that provide protection for the socio-eco-nomic rights of the Yemeni people. The protection of the population during an armed conflict is guaranteed in several principles of international humanitarian law (IHL). This is best re48 -flected in the fundamental IHL principle requiring parties to the conflict to distinguish be-tween those participating the armed conflict and those hors de combat as well as bebe-tween military objects and civilians objects, the principle of distinction. This principle had lead to 49 several other more specific principles, such as the prohibition of attacking objects indispens-able for the survival of the civilian population. The substantive rules of IHL that can specifi-cally be seen as guaranteeing the socio-economic rights to water, food and the highest

Office of the United Nations High Commissioner for Human Rights, ‘the Right to Health: Fact Sheet No

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31’ (OHCHR & WHO, 2008)

Article 24(2)(c) Convention on the Rights of the Child; Article 14(2)(h) Convention on the Elimination of All

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Forms of Discrimination Against Women

Even though many States are involved in the armed conflict in Yemen, for IHL purposes the conflict is con

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-sidered to be a Non-International Armed Conflict (NIAC) because there is no resort to armed force between States, but between non-State armed groups and the Yemeni government. Other States that are party to the con-flict, are considered to be intervening on behalf of the Yemeni State. The fact that the initial intervention was with the consent of the Yemeni government, confirms this. See: Case ‘Tadic’ (Prosecutor v. Dusko Tadic) (Deci-sion Appeal) [1995] ICTY § 70; Terry Gill, ‘Classifying the Conflict in Syria’ (2016) 92 ILS 353, 362-367

The conflict in Yemen is classified as a Non-International Armed Conflict. The principle of distinction for

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NIACs can be found in: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted on 8 June 1977) (Protocol I); Common Article 3 of the Geneva Conventions. The principle of distinction is also clearly recognised as part of customary in-ternational humanitarian law and described by the Inin-ternational Committee of the Red Cross in: ’Customary International Humanitarian Law’ (2016) Rule 1, Rule 5, Rule 8, Rule 9, Rule 11 (ICRC Customary Law).

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able standard of health, will be discussed under the relevant right to get a complete overview of socio-economic rights guaranteed for the Yemeni people in international law. 50

3.1.1 Right to food

International Covenant on Economic Social and Cultural Rights

The right to food is explicitly included in the ICESCR in article 11 on “the right to an ade-quate standard of living” for himself and his family and according to the drafter of this arti-cle, this right includes adequate food, clothing and housing. The article recognizes a funda51 -mental right to be free from hunger, an absolute and minimum standard. The recognition of 52 the right to food and the interpretation of the CESCR of this right has been recognized by the UN Commission on Human Rights and the UN General Assembly and also taken into ac-count in State practice. Moreover, the UN General Assembly has repeated time and again in its resolutions that food should not be used as a tool for political pressure. 53

The current lack of food supplies in Yemen meets the threshold of a famine, putting almost the entire population at risk and leaving 7 million severely food insecure. The impo54 -sition of blockades and restrictions on movement are expected to have caused the most severe impact on the food insecurity, given that about 90 percent of goods used to be imported. 55 These restrictions were imposed by the Saudi-led coalition and the Yemeni government is

Although not uncontested, International Humanitarian Law is seen here as being applicable together with

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human rights law. There is nothing a priori preventing the application of international human rights law when international humanitarian law is applicable. The International Court of Justice has stated some rights ‘may be matters of both’ and has continued to apply human rights law during times of armed conflict. In addition to the ICJ, the International Law Commission has argued that the object and the purpose of human rights treaties re-quire that they continue to offer protection in times of armed conflict and unless specifically provided for in the treaties, it does not grant the State a reason to suspend the treaty provisions. See: Geneva International Law Commission, ‘The Effect of Armed Conflict on Treaties: An Examination of Practice and Doctrine: Memoran-dum of the Secretariat’ (Geneva International Law Commission, 2005); Case ‘Legal Consequences of the Con-struction of a Wall in the Occupied Palestinian Territory’ (Advisory Opinion) [2004] ICJ § 106

Article 11 ICESCR

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Article 11 ICESCR; Office of the High Commissioner for Human Rights, ‘CESCR General Comment No. 12:

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’The Right to Adequate Food (Art. 11)’ (12 May 1999) UN Doc E/C.12/1999/5.

Food and Agriculture Organization of the United Nations, ‘The Right to Food Guidelines’ (FAO, 2006)

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Institut de Relations Internationales et Stratégiques (n 17) 7-10

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United Nations Human Rights Council, ‘The situation of human rights in Yemen, including violations and

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abuse since September 2014’ (13 September 2017) UN Doc A/HRC/36/33; UN News Service, ‘Yemen: As threat of famine looms, UN urges Saudi-led coalition to fully lift blockade of Red Sea ports’ (UN News Service, 2017)

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recklessly ignoring evidence that its current policy is creating starvation of the majority of its peoples to whom it owes the fundamental right to be free from hunger. 56

International Covenant on Civil and Political Rights

States have a obligation to not only respect, but also ensure respect for the right to life of all individuals within its territory and subject to its jurisdiction. This right is clearly mentioned 57 in the International Covenant on Civil and Political Rights, where positive obligations for a State to ensure the right are generally recognized and “all necessary steps” need to be taken. The formulation of this rights puts the State in the position of guarantor, meaning that a lack of wilful omission by the State could lead to State responsibility, if a causal effect between the omission and the loss of life can be established. 58

Customary Human Rights Law

it has been noted that the right to food has been endorsed more often and with greater una-nimity and urgency than most other human rights, while simultaneously being violated more systematically than most rights. In the context of armed conflict, the prohibition of food de-privation as a weapon of warfare is recognized as customary law, but this should be seen as part of customary international humanitarian law rather than human rights law, even though this customary law would attribute to the realization of the right to food in human rights law. 59

International Humanitarian Law

Objects indispensable to the survival of the civilian population are civilian objects and may not be attacked as such. Specifically recognized in this respect is the prohibition of starva60 -tion of the civilian popula-tion and thus a prohibi-tion of destroying objects “for the specific

Appendix I, under 1

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Article 6 ICCPR

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Ruth Stoffels, ‘Legal regulation of humanitarian assistance in armed conflict: Achievements and gaps’ (2004)

58

86 (885) IRRC 515, 518-520

Food and Agriculture Organization of the United Nations (n 52)

59

ICRC Customary Law Rule 7, Rule 54

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purpose of denying them for their their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away or for any other motive”. Not just would this be a violation of IHL, it also con61 -stitutes a war crime. The term starvation is recognized to cover not only starvation due to 62 deprivation of food and water, but additionally an insufficient supply of essentials to survive. In the Additional Protocols I and II a non-exhaustive list of the objects considered indispens-able to the survival of the civilian population are mentioned and among them are livestock, crops, foodstuffs. 63

To put this IHL obligation in human rights terms, the right is granted by providing for negative obligations for parties to the conflict. While the prohibition of “starvation of civil-ians as a methods of warfare” provides such a minimum protection that to speak of a “right” would be a gross overstatement, it does lead to the conclusion that even when a State has not ratified any human rights treaties, in times of armed conflict it is bound by some minimum in relation to food for the civilian population.

The Saudi-led coalition is accused of using starvation as a method of warfare. The stopping of good from entering seaports controlled by the Houthi’s have further endangered the lives of many civilians living in Houthi controlled areas. The Yemeni civilians were al64 -ready in dire need of water, food and medical supplies. To block humanitarian aid, which in itself is already a breach of IHL, should therefore additionally be seen as using as using star-vation of civilians as a method of warfare. This because the position of the Houthi insur65 -gency in the region was attempted to be weakened by denying the civilian population these supplies and thus their military goal was pursued through the starvation of the civilian popu-lation.

ICRC Customary Law Rule 54

61

Article 8(2)(b) Rome Statute

62

Article 54(2) Additional Protocol I; Article 14 Additional Protocol II; ICRC Customary Law Rule 54

63

Human Rights Watch (n 30)

64

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3.1.2 Right to water

International Covenant on Economic Social and Cultural Rights

According to the CESCR, “Water is a limited natural resource and a public good fundamental for life and health”. The right to water is, although not specifically described, therefore 66 guaranteed as part of securing an adequate standard of living and entitles everyone to access to affordable, safe and sufficient water. The CESCR has been criticised for creating a new 67 right by making the latter statement. However since the right enumerated in the ICESCR arti-cle are not exhaustive and water access is a conditio sine qua non for an adequate standard of living, this criticism is not convincing. Its importance is also recognised in relation to the 68 right to food, given water and water management systems are essential for agriculture, and the right to health which would be threatened by unsafe water conditions. While socio-eco69 -nomic rights are often viewed as positive obligations for a State and thus does not grant rights as such for its citizens, there is a certain core minimum obligation in relation to all rights in ICESCR since without it the rights would be deprived of its raison d’etre. 70

Under all circumstances, people have at least a right to be free from interference with their access to water. A State must not only respect this right of non-interference, it shall also protect this right in relation to third parties. The lack of water is not just a problem in itself, 71 it has worsened the pressing medical needs, for instance the cholera outbreak due to the lack of access to clean water. No efforts by the Yemeni government have been recorded in 72 restoring the sewer system, water towers or prevent the aquifers from running dry. Yemenis

Office of the High Commissioner for Human Rights, ‘CESCR General Comment No. 15: The Right to Water

66

(Arts. 11 and 12 of the Covenant)’ (20 January 2003) UN Doc E/C.12/2002/11.

Article 11 ICESCR; CESCR General Comment No. 15. Furthermore, the view of the Committee is recog

67

-nized by the UN Human Rights Council in: United Nations General Assembly, ‘Resolution adopted by the Hu-man Rights Council 15/9. HuHu-man rights and access to safe drinking water and sanitation’ (6 October 2010) UN Doc A/HRC/Res/15/9.

Pierre Thielborger, ‘Re-Conceptualizing the Human Right to Water: A Pledge for a Hybrid Approach’ (2010)

68

15 (2) HRLR 225, 230-233

CESCR General Comment No. 15; Article 11 ICESCR

69

Limburg Principles in 1987; ‘The Limburg Principles on the Implementation of the International Covenant on

70

Economic, Social and Cultural Rights’ (1987) UN Doc E/CN.4/1987/17 §25

United Nations General assembly, ‘Human rights defenders: Note by Secretary-General’ (4 August 2010) UN

71

Doc A/65/223, 8-9

WHO Annual Report 2017 ‘Yemen’ (2017)

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are currently dependent on fuel to pump water for domestic supply, but not enough fuel can be imported to meet the need for water. Furthermore, no international assistance has been 73 requested in providing water to its citizens, which is an obligation under the ICESCR.

International Covenant on Civil and Political Rights

The link between access to water and human life could not be more apparent. This is widely recognized in relation to the conduct of hostilities, but should be seen to have an equally strong link with the right to life as guaranteed in the ICCPR. It was mentioned previously in 74 relation to the right to food, that the ICCPR requires that all necessary steps are taken by the Contracting State to fulfil this right. More problematic to establish a violation of this right, is the establishing of wilful omission on the side of the government territory or jurisdiction. 75 Yemen was already a water scarce country and since the available water reached unsustain-able levels in 2015, the lack of water appears to be mainly the effect of the lack of fuel. If this lack of fuel was due to the wilful omission of the State required to comply with the right to life, this right would be violated. Yemen currently depends for up to 90% of its fuel on import and is currently only able to import 40% of the required fuel. The humanitarian blockade by 76 the Saudi-led Coalition therefore has a significant impact on the available water resources and the right to life is therefore violated only if this conduct by the Coalition can be attributed to the Yemen government or is the Coalition itself is bound by the right to life. This will be further discussed in chapter 4.

The right to water is one of the most discussed rights by scholars and the prevailing opinion assumes that there is not (yet) a right to water as part of international customary because con-sistent State practice is lacking. When it has been argued that there is such a custom for the right to water, scholars have needed to resort to alternative approaches to what suffices as suf-ficient State practice or opinio juris, for instance by referring to the Millennium Development

Institut de Relations Internationales et Stratégiques (n 17) 7

73

Thielborg (n 68)

74

As responsible for human rights of ICCPR, Article 2 ICCPR

75

Institut de Relations Internationales et Stratégiques (n 17) 7-8

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Goal that this right could be seen as customary law or by stating a lack of sufficient State practice could be compensated by the strong opinio juris.

Just as part of the protection of objects indispensable to the survival of the civilian popula-tions can be seen as a right to food provided under IHL, this protection can be seen as the right to water granted by IHL. Drinking water installations and supplies and irrigation works are also recognized in the additional protocols as such indispensable objects and they are thus protected from an attack if the attack is carried out for the specific purpose of denying them their value. Considering that it is unlikely that a water installation will be used solely for the 77 benefit of the armed forces or in any other way in support of the military action, the attack of such a water installation would be hard to justify under IHL. There have been some reports 78 of attacks on water towers, but the lack of water appears to be due more so to the lack of fuel due to the humanitarian blockade and the lack of the Yemeni government to have an adequate policy for dealing with the country’s general water scarcity. 79

3.1.3 Right to the highest attainable standard of health

International Covenant on Economic Social and Cultural Rights & Rights of the Child

The ICESCR states that “every human being is entitled to the enjoyment of the highest at-tainable standard of health” for him and his family, which can include food, clothing, hous-ing, medical care and necessary social service. The Committee has made clear this right at least concern the core obligations of a State to address health concerns of the population by adopting a national public health strategy, to ensure an adequate supply of water and food and to ensure equitable distribution of all health facilities, goods and services. Children are espe-cially vulnerable to malnutrition and diseases and therefore the responsibility of a State to promote their health is stressed. Also specifically recognized in the Convention is the 80

77

Article 54(3) Additional Protocol I; Mara Tignino, ‘Water During and After Armed Conflicts: What Protec

78

-tion in Interna-tional Law?’ (2016) 1 (4) PIWL 1.

Institut de Relations Internationales et Stratégiques (n 17) 19

79

Office of the United Nations High Commissioner for Human Rights (n 46)

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State’s responsibility to prevent, control and treat epidemic, endemic and occupational dis-eases. The halting of these diseases is an example of the State’s core obligation to intervene 81 to prevent or reduce serious threats to individuals or populations to all its available resources. 82

The spreading of cholera is only part of the country’s problems concerning health. In 2017 already the disease was expected to have infected over 17.200 people. The disease is 83 preventable, but currently the Yemeni government has not taken any effort providing essential supplies, medicine or otherwise intervene in the further death toll of this preventable disease. This is worsening an already difficult humanitarian situation. The government has failed to ask for international assistance in achieving the core obligations of the right to health.

In relation to children, the UN Human Rights Committee has emphasized the right to life obliges States to adopt positive measures ‘to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics’. The 84 Convention on the Rights of the Child (CRC) does not contain more obligations for State par-ties than the ICESCR, but the provisions are specified to the welfare of children and they should be mentioned to make clear the international community has agreed on how essential the protection of this specific group is. Article 24 of the CRC concerns the right to the highest attainable standard of health and specifies that for children this includes that measures should be taken to amongst other combat disease and malnutrition and to emphasize on the devel-opment of primary health care. This article emphasises the vulnerability of children when it 85 comes to the health impact of malnutrition. Therefore this specific right concerning children deserves attention when discussing the conflict in Yemen, because children are suffering un-der the current healthcare situation in Yemen. 86

Article 12 ICESCR

81

Office of the United Nations High Commissioner for Human Rights (n 46)

82

Irin, ‘A country ‘on its knees’: Cholera takes hold in war-weary Yemen’ (Irin, 2017)

83

Office of the High Commissioner for Human Rights, ‘CCPR General Comment No. 6: Article 6 (Right to

84

Life)’ (30 April 1982) § 5 Article 24(1)(2) CRC

85

UN News Service, ‘Children paying the heaviest prices as conflict in Yemen enters third year - UN’ (UN

86

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International Covenant on Civil and Political Rights

The right to life, or the duty to protect life, requires that State parties take appropriate mea-sures to address the general conditions of the State that provide a threat to life, including medical conditions. The armed conflict in Yemen has an extreme impact on the medical 87 conditions of the population. Injuries due to hostilities and cholera are the most urgent threats to public health and medical facilitates are more important then ever. These threats are not addressed by creating additional facilities, nor by efforts to protect the existing facilities. The cholera outbreak has spread over several densely population, including those in (formerly) government controlled areas (see map below). There have been accounts of harassment of medical personnel by pro-government forces in 2016, threatening to kill the personnel if they did not shut down their activity immediately. This has lead to the (temporary) closing of at least three hospitals, including the biggest public hospital in Ta’iz, home to 600.000 Yemenis. The Yemeni government has made no attempt in protecting these medical facilities when they were under threat, nor were any efforts made to ensure the medical facility would reopen. 88

Human Rights Committee, ‘General Comment No. 36 on article 6 of the International Covenant on Civil and

87

Political Rights, on the right to life: Revised draft prepared by the Rapporteur’ (July 2017) §29-30 Amnesty International, ‘Yemen: Hospitals and medical workers under attack by anti-Huthi forces in

88

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There is even less recognition for the right to the highest attainable standard of health as part of customary law than for the previously discussed right to water and food. Combined with the lack of clarity on the exact content of this right which would then be a part of customary law, the right to the highest attainable standard of health will also not be further considered as part of customary law. This is unfortunate, because the most important States impacting 89 civilian lives in Yemen such as Saudi Arabia and the UAE, are not a party to the ICESCR nor to the ICCPR. 90

If an individual does not or no longer participate in hostilities, that they need to be treated humanely still. This includes a prohibition of violence, humiliating and degrading treatment or taking that person hostage. Furthermore, it is provided that the wounded and the sick need to be cared for. In addition to this, the need for medicine has been mentioned as an object 91 considered indispensable to the survival of the civilian population. Something that has not 92 been discussed yet but which could potentially also be of great value for ensuring a right to health under IHL, is the special protection for medical personnel, activities, transport and units. The latter is probably the most obvious protection since it includes the hospitals and other medical units where the wounded and sick are collected. An attack on a medical unit 93

Eleonor Kinney, ‘The International Human Right to Health: What Does This Mean For Our Nation and

89

World? (2002) 34 ILR.

Which Member has ratified the ICCPR and the ICESCR can be found on the UN Treaties Website and

Saudi-90

Arabia and The UAE have not ratified these treaties. The treaties have been ratified by Yemen itself, and other Coalition States such as Morocco, Bahrain, Pakistan, Egypt. See: ‘International Covenant on Civil and Political Rights’ (United Nations, 24 July 2018) via <https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtds-g_no=IV-4&chapter=4&lang=en> and ‘International Covenant on Economic, Social and Cultural Rights’

(Unit-ed Nations, 24 July 2018) via

<https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chap-ter=4&clang=_en>

Common article 3 of the Geneva Conventions ‘Conflicts not of an International Character’ (12 Augustus

91

1949)

92

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will not only be a violation of IHL, but will also constitute a war crime. There has been at 94 least one violation of the protected status of hospitals, in August 2015 when a Medicins Sans

Frontieres (MSF) hospital was attacked by the Coalition. The symbol of MSF was clearly

visible on the roof of the hospital so the protected States of the building was well-known. 95 There are no plausible justifications for this war crime.

These same rules apply to medical transport, which refers to “any means of trans-portation, whether military or civilian, permanent or temporary, assigned exclusively to med-ical transportation under the control of a competent authority of a party to the conflict”, no matter whether this is by land, water or air. In order to protect the wounded and the sick, the 96 medical personnel offering relief to them are also protected and intentionally directing attacks against them will at all time constitute a breach of IHL and a war crime. Additionally, ha97 -rassment, mistreatment or hostage-taking of medical personnel is prohibited and the afore-mentioned harassment of hospital personnel in Ta’iz is therefore a clear violation of humani-tarian law.

The protection of humanitarian relief personnel is recognized as needed to protect the civilian population in need when threatened with starvation as well as the protection of the wounded and sick. Naturally, humanitarian relief objects enjoy a similar protection on the basis of the same grounds. The protection of humanitarian assistance is not solely relevant for those par98 -ticipating in the conduct of hostilities, but it can also seen as a “right” to humanitarian aid, which results in several duties of parties to the conflict. One of these duties concerns the duty to permit the entry, passage and distribution of humanitarian aid. Any direct or indirect ob-struction of this entry is not allowed and parties must actively try to assist in rapid passage of the relief to the civilian population in need. As mentioned before under the right to food, 99

Article 8(2)(e)(ii) and (iv) Rome Statute

94

Appendix I, under 2

95

96

Article 8(2)(b)(xxiv) Rome Statute; ICRC Customary Law Rule 25

97

ICRC Customary Law Rule 31, Rule 32

98

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this rule of IHL is breached by the naval and aerial blockade by the Saudi-led coalition. Moreover, the protection of humanitarian relief objects was also violated when humanitarian aid warehouses were targeted and destroyed by the Coalition in April 2015.

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4. State responsibility for the violations of the

socio-eco-nomic human rights violations

The previous chapter concerned the substantive law which was relevant to determine the

hu-man rights violations caused by the involved States. In this chapter it will be discussed to what extent this leads to State responsibility. The distinction is made between Yemen’s in-ternational recognised government and the Saudi-led Coalition.

4.1 State responsibility for violations of human rights law and humanitarian law

The violations of the socio-economic rights are guaranteed in sources of international human rights law and humanitarian law that are binding on the Yemeni government. Most known acts that have caused these violations were however executed by the Saudi-led Coalition. It therefore needs detailed assessment whether it can be attributed to the Yemeni government, therefore making that State responsible. Moreover, if certain criteria are met, human rights 100 law can also apply extraterritorially and therefore the violations could be attributed to other States than Yemen, most likely to the most important States backing the government, Saudi Arabia and the UAE. Furthermore, the Coalition States are directly engaging in the armed 101 conflict and therefore a party to the conflict. International humanitarian law is binding on them whenever they will remain to be qualified as a party. There are many account of these obligations being breached due to their acts. The State responsibility of all these Middle-102 Eastern States will shown whether or not this is a just reflection of the responsibility in prac-tice.

4.2 Responsibility of the Yemeni government

The International Covenant on Civil and Political Rights requires each State party ‘to respect and to ensure’ the rights recognised in the treaties for people within its territory or falling un-der their jurisdiction. The International Covenant on Economic, Social and Cultural Rights, 103

Article 1, 2(a), 2(b) ILC Articles on Responsibility for Internationally Wrongful Acts (2001) (ILC Articles)

100

Appendix II

101

As discussed in chapter 3 and enumerated in appendix I

102

Article 2(1) ICCPR

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generally requires the State to undertake steps to the maximum of their available resources, individually and through international assistance and co-operation, but as we have seen, the violation in Yemen touch upon the core minimums and the aforementioned can therefore not be construed as meaning a defence of effort will exclude the Yemeni government from its re-sponsibility. 104

Map of control over territory January 2018. The circle is an estimate of the current control of the southern separatists. The island of Socotra (southeast corner) is mainly controlled by the UAE. 105

As the recognised government, the Hadi administration would generally be held accountable for the violations of international human rights law, as reflected in the aforementioned human rights treaties. Problematic here is that this government has limited control over its territory. The capital Sana’a has been in the hands of the Houthi insurgency since 2015 and its “tempo-rary capital” of Aden is in the hands of different rival armed forces, the Southern Separatists. The majority of the government is currently in exile in Saudi-Arabia. International reports 106 have confirmed the lack of a functioning government in Yemen, confirming the dependence

Article 2(1) ICESCR

104

International Crisis Group (n 39); Al Jazeera (n 40)

105

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of the Hadi administration on Saudi-Arabia, stating that any state institution is controlled by unelected official or different armed groups, depending on the area. The Houthi insurgency 107 control the north and west of the country, and the south is controlled by the Southern Sepa-ratist, backed by the UAE. The government has only retained control of the east, due to the support of the Saudi-led coalition. 108

Taking the aforementioned into account, a distinction between the areas under the control of the Yemeni government and those under control of the Houthi insurgency, seems appropriate. In the area controlled by the Yemeni government, pro-governmental forces that are allied to but not necessarily under the control of the government, have affected the access to health facilities of people in the area. The State can have positive obligations to protect individu109 -als from armed opposition groups, more specifically to protect the people from suffering from the violations of their human rights. The failure of protection in the context of human rights law, could lead to State responsibility. While this is not explicitly confirmed in relation to the rights enumerated in the ICESCR, this has been confirmed in relation to the right to life. 110 The right to life was previously interpreted as providing elements of what could be described as a right to food, water or health. The right to life required appropriate measures to deal with threats to public health, if these were a threat to life. The destruction or closing of medical facilities should therefore be prevented by the government. Whether you interpreted the posi-tive obligations to protect as a obligation of intent or of result, the Yemeni government would have failed on both account. The harassment and threats by pro-government forces caused several hospitals to close down, diminishing an already insufficient access to medical care. 111 The city of Ta’iz was also under control of the Yemeni government in 2016 when the harass-ment of medical personnel lead to the closing of at least three hospitals. Therefore, the right to life is also violated due to the wilful omission of the Yemeni government.

107

International Crisis Group (n 39)

108

Amnesty International (n 97)

109

United Nations General Assembly (n 70) 8-9

110

In an area on the border of the Houthi controlled area, accessible for the Yemeni government. See: Amnesty

111

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Another account of State responsibility of the Yemeni government, also concerns the right to health. The core minimum of the ICESCR standard is violated, due the failure of the Yemeni government in addressing the spreading of cholera disease. The outbreak of cholera is widespread and the disease has also affected many in areas in the south (see map page 20), while the government still has control over this territory. The Yemeni government was there-fore already responsible for the violation of the right to health as guaranteed in the ICESCR, before the southern separatists took control over some of these areas. In the context of the right to water or food, a violation of the right to life cannot be confirmed, given that the threat posed to their life due to food and water shortages, were due to armed attacks of the Coali-tion, not to the wilful mission of the Yemeni government.

Another human rights violation of the right to health which lead to State responsibility of the Yemeni government, is due to the lack of action for prevention of cholera to spread among children. As many infectious diseases, cholera mostly affects children and poses more of a threat to their life than it would to an adult. Therefore, the right to health is specifically guaranteed in the Convention on the Rights of the Child and the failure of the government will also lead to State responsibility of the Yemeni government for a violation of the CRC.

Most of the human rights violations have occurred in area controlled by the Houthi insurgency. These were mostly due to attacks executed by the Coalition, for which it can112 -not be confirmed the Yemeni government actually had an active role in the planning and exe-cuting of these attacks. Notwithstanding the acknowledgement that the State is primarily 113 responsible for human rights violations , persisting the Yemeni government is responsible 114 for every human right violation that occurs on their territory solely because officially it is still part of their territory, will leave the people of Yemen with just as little as when acknowledg-ing they currently are in unable to control all violations that are occurracknowledg-ing on their territory and cannot without a doubt be held responsible as such. The development in international law that other States can be held responsible for human rights violations extraterritorially and the

Appendix I

112

The role of the Yemeni government is rarely mentioned past the activity of their own forces, for which no

113

violations of socio-economic human rights law and IHL have proven to be relevant for this research. If any State is mentioned in assisting the Coalition, it is usually the US, UK and France, providing intelligence, logistic sup-port and arms. See notes 1 to 4 Appendix I and concerning the latter, see Shavam Musa, ‘The Saudi-Led Coali-tion in Yemen, Arms Exports and Human Rights: PrevenCoali-tion is Better Than Cure’ (2017) 22 (3) JCSL 433.

As confirmed in: United Nations General assembly (n 71) 8-9

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human rights obligations of non-State groups attests to an acknowledgement of this. Addi-tionally, this is reflected in the possibility of the government to resort to ‘force majeure’, a circumstance precluding wrongfulness of not meeting the international obligation. The con-trol of the Houthi insurgency over the territory can be seen as an unforeseen event beyond the control of the Yemeni State and could therefore preclude the wrongfulness of the Yemeni government failing to meet its human rights obligations, solely while this territory is still un-der control of Houthi insurgency. 115

That being said, international human rights law requires that a remedy must be pro-vided when rights are violated. While this might not be a realistic option amidst the armed 116 conflict, the government is not permanently excused from fulfilling this obligation. This 117 should not be taken lightly. Not only is the right to an effective remedy an important part of any human right, prosecuting the perpetrators is essential in preventing further human right violations. 118

Resulting from the different nature of international human rights law, the State responsibility of the Yemeni government might be different for the socio-economic rights as guaranteed in international humanitarian law. The mere fact that the Saudi-led Coalition is engaging in hos-tilities “on behalf” of the Yemeni government, does not make the acts attributable to the Yemeni government. For the attacks to be attributed to the Yemeni government, the organs executing the attacks leading to the socio-economic right violations must have been placed at the disposal of Yemen, the attacks were directed or controlled by Yemen or if the conduct 119 was acknowledged and adopted by the State as its own. The described attacks were all exe120 -cuted by the Coalition. The Yemeni government does not appear to direct or control or to

Article 23 ILC Articles

115

United Nations General Assembly ‘Basic Principles and Guidelines on the Rights to a Remedy and Repara

116

-tion for Victims of Gross Viola-tions (16 December 2005) UN Doc A/RES/60/147 United Nations General Assembly (n 71) 8-13

117

Idem

118

Article 8, Article 17 ILC Articles

119

Article 11 ILC Articles; Case ‘United States Diplomatic and Consular Staff in Tehran’ (Islamic Republic of

120

Seeking State Responsibility for Violations of Socio-Economic Right in Yemen : Study of whether legal State responsibility for violations of the right to food, water and health, as guaranteed through International Huma