What the two sides – Saudi Arabia, on the one hand, and Iran on the other – are doing is, in effect, engaging in a new arena to fight old battles. The threat of a proxy war getting out of hand looms large. The choice of shifting the arena of the simmering tensions to Yemen is perhaps a planned decision.
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By Kirthi Jayakumar
Saudi Arabia’s “Operation Decisive Storm” is a military intervention in Yemen in an effort to stop the Houthi advances; an intervention orchestrated by a coalition that includes the UAE, Qatar, Kuwait, Bahrain, Jordan, Morocco, Sudan, Pakistan and Egypt. The Gulf Cooperation Council asserted that the military action was taken in response to the request of the Yemeni President, who fled to Saudi Arabia last year, when the Houthis had begun to encroach into his stronghold in Aden. The Houthis have already captured Sanaa, and have begun to expand their presence in the region. The intervention was declared to have been an effort built on the foundation of self defense under Article 51 of the UN Charter, and has the backing of the US, which has promised to lend logistical and intelligence support to the coalition’s military operations.
On the other side, Iran has reportedly moved in to help the Houthis, offering financial support and military advice against the coalition’s intervention.
At the very outset, the use of force in public international law is prohibited by Article 2(4) of the UN Charter, with the exception of Article 51, which speaks of the right to self-defense, only in the face of an actual armed attack, which also permits collective self-defense. The prerequisites for the exercise of self-defense are necessarily the occurrence of an armed attack, and that the use of force in response is but absolutely necessary. Once undertaken, the responsive attack should be necessary and proportionate to the original force used. By the norm of collective self-defense, if any nation in the international system has faced an armed attack and the aggressor continues to use force, any other state may rise to the occasion to support the state in question. With that in mind, given that President Hadi – who is recognized as Yemen’s legitimate leader by the international community – has explicitly requested the intervention while still in his official capacity as the head of Yemen, this situation could squarely fall under the scope and ambit of self-defense. There is no legal prohibition imposed on requesting external assistance, much less one by a government that has been confronted by violence in its territory.
On the other hand, Iran’s support of the Houthi rebels does not have a legitimate claim – given the decision in Nicaragua, where it was ruled that the training, arming, equipping, financing and supplying rebel forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against a State is a breach of the obligation under customary international law not to intervene in the affairs of another State.
Be that as it may, it could well be true that what the two sides – Saudi Arabia, on the one hand, and Iran on the other – are doing is, in effect, engaging in a new arena to fight old battles. The threat of a proxy war getting out of hand looms large. The choice of shifting the arena of simmering tensions to Yemen is perhaps a planned decision. Saudi Arabian intelligence might have possibly had its ears to the ground – and would have caught on when there were signs to the effect that the US-Iran deal was coming through. With that in place, and no sanctions to bleed Iran dry, it must have seemed smart to get President Hadi out of Yemen and into Saudi Arabia, and then convert that into an opportunity for a new proxy war. With Saudi Arabia versus Iran being a full blown reality, the applicable norms in the context shift from peacetime laws to laws of conflict.
In order for International Humanitarian Law to apply, the precondition is that there should be an armed conflict. Now here’s the tricky part. Since President Hadi asked for the intervention, and he is seen as the legitimate leader of Yemen by the international community, there is no international armed conflict between Yemen and the coalition – so, there is technically no fulfillment of the requirement under International Humanitarian Law to the effect that there should be a difference arising between two states, enough to warrant intervention. For there to be an international armed conflict, therefore, the onus shifts to proving that Iran has effective and overall control over the Houthi in Yemen, in-line with the dictum of the Tadic Case. Within Yemen, the state of a civil war is enough to constitute a non-international armed conflict. This remains to be seen.
Either way, there is not much of a difference, because there is room for the application of international humanitarian law.
To this end, it is clear that there is an addition of parties on either side, vis-à-vis the armed conflict. The coalition on the one hand supporting the perceived legitimate government, and the Houthi rebels on the other hand, supported by Iran. Yemen is no stranger to dissent against the incumbent government: when the winds of the Arab Spring blew across the region, there was anti-government protest in sizeable numbers, which the Houthi participated in, only to grab the bull by the horns and make the most out of efforts to topple the government. This automatically warrants that International Humanitarian Law applies – given that there was a non-international armed conflict, that the intervention pertains to the conflict, that such intervention supports a particular side in the conflict, and that it is undertaken with the sanction and official decision of one of the parties to request such intervention.
Technically speaking, international law and international humanitarian law do not outlaw the intervention of states in a pre-existing armed conflict of a non-international character. What remains to be seen is how this will play out. Saudi Arabia’s decision could be motivated by the need to keep its hostilities against Iran alive in the face of the US-Iran nuclear deal. Now that there are no sanctions against Iran, there isn’t much to bleed it dry. The coalition’s efforts to draw Iran into a proxy war might be a way to keep Iran engaged in a state of affairs that will dry it to penury. This puts a bit of an alarm into the picture. IHL requires a differentiation between civilians and combatants, and puts the former in a place of safety. It’s unlikely that the arena of the conflict will shift to Iran immediately, although it is on the cards. When it comes to that, the value that coalition will offer to the norms of International Humanitarian Law remains to be seen.
Kirthi Jayakumar is a Lawyer, specialized in public international law and human rights. A graduate of the School of Excellence in Law, Chennai, Kirthi has diversified into research and writing on public international law and human rights. She has worked as a UN Volunteer, specializing in human rights research in Africa, India and Central Asia and the Middle East. She also runs a journal and consultancy that focuses on international law, called A38.