International Law is Meant to Prevent What’s Happening in Yemen

YemenExtra

BY:Nathalie Weizmann

Every day brings worse news from Yemen. This morning, the International Committee of the Red Cross (ICRC) announced that water and sewage systems in three cities in Yemen – Hodeidah, Sa’ada and Taiz – had stopped operating because imports of fuel were at a standstill. And just yesterday, the heads of the World Food Programme (WFP), UNICEF and the World Health Organization described the current situation in Yemen as “the worst humanitarian crisis in the world.”

Yemen was already struggling with a humanitarian disaster after two years of war, but the situation grew far worse last week, when the Saudi-led military coalition stopped critical commercial supplies and humanitarian aid deliveries from entering Yemen, and blocked the movement of relief workers into and out of the country. The coalition announced the closure of all Yemeni airports, seaports and land crossings in response to a ballistic missilefired by Ansar Allah (also referred to as Houthi) opposition forces in Yemen and intercepted by the Saudi military over Riyadh’s international airport.

Reacting to the shutdown, the UN’s Emergency Relief Coordinator, Mark Lowcock, warned that if it isn’t lifted, “it will be the largest famine the world has seen in many decades, with millions of victims.” According to key members of the humanitarian community in Yemen, “There are over 20 million people in need of humanitarian assistance; 7 million of them are facing famine-like conditions and rely completely on food aid to survive.”

This week, the Saudi-led coalition, which has received support from the U.S. over the past two years, announced it was allowing humanitarian and commercial access to resume through ports and airports under the control of Yemen’s government, but not those under the control of opposing forces, out of concern for the smuggling of weapons, ammunition, missile parts, and cash for Houthi forces. Today, about 71 percent of people in need in Yemen, and 82 percent of all cholera patients (last month there were more than 815,000 suspected cases in the country), are in areas controlled by the Ansar Allah and General Peoples’ Congress (GPC) opposition forces and their allies, near the ports of Hodeidah and Saleef. Until the shutdown last week, almost 80 percent of commercial and humanitarian imports entered through these two ports. As the UN humanitarian coordinator in Yemen, Jamie McGoldrick, has explained, any plans to supply Yemen through other ports in the North and South of the country would be “too complicated, dangerous, slow and expensive.”

Even before this particular conflict began over two years ago, Yemen was considered one of the region’s poorest countries. Fighting was taking place in different parts of the country between various actors including Yemeni armed forces, Houthi rebels, al-Qaeda in the Arabian Peninsula (AQAP), and others. And Yemen’s population was already 80 to 90 percent dependent on commercially imported food, medicine and fuel. Every country has the primary responsibility to meet the needs of persons on its territory or under its control. In Yemen, this responsibility should entail that commercial imports and distribution of essential staples be allowed to continue. 

Humanitarian relief operations will typically take place when this primary responsibility is not met and civilian populations are not adequately provided with items essential for their survival. Once a country has authorized relief operations, international humanitarian law (IHL) requires that all parties allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial and conducted without adverse distinction, subject to the parties’ right of control. The parties must also ensure the freedom of movement of humanitarian personnel that is essential to their functions. Humanitarian activities or movements can only be restricted in case of imperative military necessity, and only temporarily. Of course, relief personnel and objects used for relief operations must be respected and protected. Attacks, harassment, intimidation, and arbitrary detention of relief personnel, and destruction, misappropriation and looting of relief objects, are prohibited.

Since the threat of famine became apparent in Yemen a year ago, redoubled efforts and funding have been dedicated to ensuring the delivery of humanitarian relief to people in need throughout the country. Last month, UN Secretary-General António Guterres announced that “the WFP and its partners had helped avert famine by delivering aid to 7 million people in August.” But this week, the UN Humanitarian Coordinator in Yemen warned that the current shutdown would reverse the gains announced by Guterres.

Even before the shutdown, parties on both sides of the conflict had been restricting the movement of humanitarian personnel and obstructing the entry and distribution of aid. The closure of Sana’a airport was already barring certain humanitarian traffic and thousands of patients from traveling outside the country to seek life-saving medical treatment. Humanitarian staff have been harassed, visas have been delayed or denied, and parties have tried to influence where and how relief is distributed. Since last week, United Nations Humanitarian Air Service flights into and out of Yemen have been grounded.

In meeting their obligation to allow and facilitate passage of humanitarian relief, parties to an armed conflict can prescribe technical arrangements, such as searching consignments to make sure they are exclusively humanitarian, stipulating certain routes and times so that relief convoys are not caught in military operations, ensuring that medical supplies and equipment meet health and safety standards, or having relief distribution supervised by an impartial organization. But technical arrangements must not prevent the rapid delivery of humanitarian relief based on need.

While humanitarian relief can play a vital role in averting famine, allowing and facilitating passage is not the only IHL duty that parties to conflict have to satisfy so that civilians have access to the essentials to survive. One expert has suggested that that there is no international law that prohibits acts that create famine, or “faminogenic” acts, but this is misconceived. IHL sets out some important rules designed to serve as a first line of defense against food insecurity and famine in armed conflict.

In order to safeguard the civilian population’s access to food in armed conflict, IHL prohibits starvation as a method of warfare. To use starvation as a method of warfare “would be to provoke it deliberately, causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies.” Directing attacks against objects indispensable to the survival of the civilian population, or denying access of humanitarian aid intended for civilians in need, including by deliberately impeding humanitarian aid or restricting the freedom of movement of humanitarian relief personnel, can constitute violations of the prohibition of starvation.

Related to the rule on starvation, IHL prohibits attacking, destroying, removing or rendering useless objects indispensable to the survival of the civilian population. Such indispensable objects include foodstuffs and agricultural areas for their production, crops, livestock, drinking water installations and supplies, and irrigation works. The list of protected objects is not exhaustive. The commentary to Article 54 of Additional Protocol I of 1977 explains that this list of objects “should be interpreted in the widest sense, in order to cover the infinite variety of needs of populations in all geographical areas.” The commentary to the equivalent provision in Additional Protocol II (Article 14) states, “‘[o]bjects indispensable to the survival of the civilian population’ means objects which are of basic importance for the population from the point of view of providing the means of existence.” Earlier this year, the Saudi-led coalition had been said to be preparing an assault on the port of Hodeidah. The UN Emergency Relief Coordinator at the time had warned that such an attack would “directly and irrevocably drive the Yemeni population further into starvation and famine.” As famine looms in a country that was already 80 to 90 percent dependent on imported food, medicine and fuel even before this conflict broke out, it can be argued that infrastructure so indispensable for the import of essential staples should also be covered by this rule.

More generally, the IHL rules of distinction, proportionality and precautions in attack also serve to protect civilian land and infrastructure. In addition to prohibiting attacks directed against civilian objects, IHL prohibits attacking a military objective if the expected incidental civilian death, injury or damage exceeds the concrete and direct military advantage anticipated. IHL also requires that parties take constant care to spare civilians and civilian objects in the conduct of military operations, and take all feasible precautions to avoid and minimize incidental loss of civilian life, injury to civilians and damage to civilian objects. Attacks against military objectives can have destructive incidental effects on civilian objects in their vicinity, such as land or critical infrastructure, disrupting agriculture or essential services such as water or food supplies, and, in turn, causing hunger and illness. Implementing the rules of proportionality and precautions in attack should factor in such “reverberating” effects that are foreseeable. Weapons treaties such as the Antipersonnel Mine Ban Treaty and the Convention on Cluster Munitions also serve to prevent agricultural land, grazing areas, and irrigation systems from being contaminated by unexploded ordnance and thus becoming inaccessible.

While parties to an armed conflict clearly bear the primary responsibility for respecting IHL, a State also carries a duty to ensure that IHL is being respected. This entails ensuring respect of IHL by its own armed forces, but also by the forces of other parties to the armed conflict, whether or not that State is also a party to it. In particular, States that provide military support to parties to armed conflict—whether through arming, training, intelligence sharing, or other means—are in a unique position to withhold the means by which violations can be committed and provide guidance and conditions to prevent and end them. A good indicative list of steps that a government can take is found in the 2009 European Union guidelines on promoting compliance with IHL, which state that the EU “has a variety of means of action at its disposal,” including political dialogue, general public statements, démarches and/or public statements about specific conflicts, restrictive measures/sanctions, cooperation with other international bodies such as the UN and regional organizations, crisis-management operations, promoting individual responsibility for war crimes, training in IHL, and restraint in exporting arms.

A number of IHL rules are meant to prevent famine from arising in situations of armed conflict. As an additional layer of defense, IHL also sets out obligations to allow humanitarian relief to be delivered rapidly to those in need. All States should take immediate steps to use their influence to ensure that the parties to the armed conflict respect these rules. As Jan Egeland has said about the risk of famine in Yemen, “It is not a drought that is at fault. This preventable catastrophe is man-made from A to Z.”