By Emre Turkut
On 25 March 2015, the international community witnessed another massive campaign of destruction in the form of a military intervention against the Houthis in Yemen launched by Saudi Arabia. The operation called “Operation Decisive Storm” is being conducted by a coalition including such countries as the UAE, Bahrain, Qatar and Kuwait.
In a letter written on 24 March 2015, the Yemeni President asked the leaders of Saudi Arabia, the UAE, Bahrain, Oman, Qatar and Kuwait to provide instant support by all means necessary by evoking the right of self-defence as enshrined in Article 51 of the UN Charter. However, the military intervention indeed elicits some problems and pitfalls when it comes to its validity under international law.
First, even though the UN Security Council reaffirmed “its strong commitment to the unity, sovereignty, independence and territorial integrity of Yemen” and expressed its “concern at the ongoing political, security, economic and humanitarian challenges in Yemen”, Resolution 2204, passed on 24 February 2015, does not yet authorize military intervention under Section VII of the UN Charter. Therefore, the legal basis of this military intervention must be found in the invitation of Yemeni President Hadi.
In a word, the military intervention taken by the Gulf Cooperation Council (GCC) in Yemen may be justified on the account of “intervention by invitation”. Generally speaking, if a sovereign state has consented to the use of force from abroad on its territory, such consent would suffice to preclude a violation of the prohibition on the use of force that represents one of the most basic tenets of international law as prescribed in Article 2(4) of the UN Charter. Such “consent”, or legally speaking, “invitation” has also been extended by Iraq for its fight against ISIS.
However, seeing that Syria had not taken a path of consent, and in legal terms, had proposed a “coordinated military action”, the US and Iraq took the position that if a state is “unwilling or unable” to eliminate the threats of a terrorist group, then a military action can be justified on these grounds within the territory of another state, in this case, Syria. Suffice to say that this is a controversial argument under contemporary international law and can be evidenced in the doubts cast on the legality of recent military operations in Syria; however, such a discussion goes well beyond the scope of this article.
Collective self-defence as recognized in Article 51 of the UN Charter has been long understood in purely inter-state terms. However, whether the wording of the article sanctions self-defence against non-state actors is still a matter of controversy and ambiguity under contemporary international law. This was the case in Iraq, with ISIS, and this is still the case in Yemen, with the Houthis. It should be noted that the International Court of Justice (ICJ) has not yet ruled or opined that Article 51 can be exercised in a case of non-state armed attack. However, starting from 9/11, the legal discussion around this matter has intensified and gained further traction. As evidenced in the recent case of ISIS, state practice supports the proposition that Article 51 of the UN Charter references not only inter-state armed attacks, but also the armed attacks of non-state actors. It goes without saying that collective self-defence always preserves its inter-state dimension. Even if a military action is taken against a non-state actor, this practice can generally take place with the consent of a state, on the territory of another state in which a non-state actor holds partial control.
This requires us to define the current armed conflict in Yemen in terms of international law. Legally speaking, as determined by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Dusko Tadic case, a Non-International Armed Conflict (NIAC) exists “whenever there is […] protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”. As in the Yemeni case, the intensity of the conflict between Yemeni forces and the Houthis seems to have reached this threshold.
In this vein, President Hadi’s invitation would mean that the current conflict in Yemen represents a “Non-International Armed Conflict”. For this, it is a certain requirement under international law that the governmental authority must be valid. Assuming that there is still a valid government in Yemen, regardless of the destructive consequences of a military intervention, Saudi-led military operations seem to occupy reasonable legal grounds. However, it should be noted that the intervening states have legal obligations under international human rights law and international humanitarian law (IHL) in a case of use of force in a state’s territory upon its invitation.
One important legal aspect of the Yemeni crisis is the scope and form of interference of other states. It seems so normal that, depending on their interests, states may be opposing parties to the same armed conflict. However, there is a fine line between being an opposing party and being a party to an armed conflict. A state could be a party to a conflict through formal and informal processes. This includes all sorts of arming, equipping, financing and supplying rebel forces or supporting and aiding military and paramilitary activities as determined by the ICJ in the Nicaragua case. Moreover, if a state engages in conduct of the aforementioned activities, this will make it a “co-belligerent” state under the international law of neutrality, and IHL will be applied to govern the actions.
As aptly put by the GCC, the Yemeni crisis “has become a major issue to the security and the stability of the region and a threat to world peace and security.” Aside from the fact that the “intervention by invitation” is perfectly legal under international law, one can argue that this military intervention carries potential risks of complicating the conditions in Yemen. In such a situation, it may not be possible to bring the parties around the same table for negotiations. Moreover, it is obvious that the consequences of a military operation have not been sufficiently considered. In this manner, it must be kept in mind that a military intervention is a long process, not a quick fix. As a matter of fact, this is a central problem regarding the policies of military interventions in general. Once rapid action is taken, the international community shows no interest in providing governmental or financial assistance after a military intervention. This was exemplified in the traumatic experience lived by, and indeed, still being lived by Libya after the toppling of Qaddafi. In this regard, the international community as a whole must start drafting the future of the Yemeni people. As in the process of military intervention, the GCC must perform important duties in the process of reconstruction as well. This is, indeed, the main task to preserve hopes for the future of humanity.
Emre Turkut is a research assistant at Turgut Özal University, TR and holds an LLM from University of Kent, UK. Turkut is an active researcher in the field of public international law, international criminal law and human rights law and has published his works in national and international journals.