Author: Dakshinie Ruwanthika Gunaratne

When Did the Conflict in Yemen Begin?

For those of you who are interested in the legal criteria relating to the beginning of a conflict, I recently published an article with a former colleague in Lawfare on the commencement of the conflict in Yemen.  In this article we analyze the law next to the facts to determine when the conflict in Yemen commenced. The full article can be accessed here. I have reproduced below the section relating to legal criteria for those who maybe interested.

The Legal Criteria

International law requires that two thresholds need to be met to classify a non-international armed conflict, based on (1) the intensity of the fighting, which includes the seriousness and spread of the clashes over a period of time, the involvement of a state’s armed forces, and the use of heavy weaponry and (2) a minimum level of organization, based on five criteria, for the armed groups involved. By July 9, 2014, both of these thresholds had been met with regards to the conflict between the Houthis and the government of Yemen.

The Intensity Threshold

The fighting in Amran in June and July represented a significant increase in the intensity of the armed clashes between the Houthis and the Yemeni government, rising to the threshold of an armed conflict.

In June, the Houthis and the Yemeni government fought a series of running battles that resulted in several ad hoc ceasefire agreements, none of which held. Later that month, on June 30, the Houthis refused to hand over checkpoints and other military installations they had captured to the Yemeni government. One week later, on July 6, a Houthi spokesman claimed that their attacks had been in response to an offensive by army troops. The government of Yemen justified this advance as a response to the Houthis’ non-compliance with the ceasefire agreement at the time. Military reinforcements from Sanaa were sent to Amran on July 6, although they reportedly returned to the capital before engaging the Houthis. The Yemeni military, however, did carry out a number of airstrikes against Houthi positions in Amran.

By July 9, the Houthis had taken over the headquarters of the 310th Brigade, the Special Security Forces, the Security Department, and the Traffic Police Department in Amran, all of which were Yemeni government security installations.

Some analysts have suggested that what took place in Amran represented a conflict between the Houthis and military units allied with Ali Muhsin al-Ahmar, not between the Houthis and the Yemeni government, and therefore the war in fact started later. Their main argument is that the 310th Brigade was loyal to Ali Muhsin and not to the central government. But it is our assessment that the 310th Brigade continued to operate as a military unit under the operational control of the central government. Additionally, unlike Ali Abdullah Saleh, who lost his position as commander-in-chief when he resigned as president, Ali Muhsin retained a position in the Yemeni government both before and after the fighting in Amran.

At the same time, Hamid al-Qubayshi, the commander of the 310th Brigade, who was said to be loyal to Ali Muhsin, continued to pledge loyalty to the armed forces of Yemen until he was killed by the Houthis on or around July 8, 2014. Prior to his death he gave orders for his men to stand down, following a ceasefire agreement between the Yemeni government and the Houthis. He did this despite his own stated pledge to keep fighting. Irrespective of al-Qubayshi’s personal loyalties, he was still following the official chain of command. This, together with the military reinforcements and the airstrikes, demonstrates that the 310th Brigade was not autonomous enough to be considered an armed group under the overall control of an entity other than the government of Yemen.

Finally, two other indicators that the intensity threshold had been met in Amran were the use of heavy weaponry and the resulting effect on the civilian population. The Houthis utilized artillery and tanks and the Yemeni government resorted to a series of airstrikes. The UN reported that over 35,000 people were displaced as a result of this escalation in clashes, from the start of May 2014 to July 9.

On July 11, the Security Council called for the Houthis to withdraw and relinquish control of all military and security instillations to the government. The Security Council also noted with concern that spoilers (later identified as the Houthis) continued to stoke the conflict in the north. It is clear that by July 9, 2014, the intensity threshold for the fighting between the Houthis and Yemeni Government had been met.

The Organizational Threshold

The Houthis were already a well-organized armed group at the time of the fighting in Amran. They had fought multiple wars since 2004 and the group clearly met the standards of the five-pronged test of an armed group with the requisite minimal level of organization: presence of a command structure, organized field operations, logistical planning, military training and discipline, and a unitary structure that would allow the group to negotiate and “speak with one voice.” The Houthis had a chain of command. Its members did not act on their own but conformed “to the standards prevailing in the group” as well as being “subject to the authority of the head of the group.” The group was capable of maintaining a unified military structure, and was similarly capable of conducting large-scale operations to capture and hold territory, such as in Sa‘dah. Houthi forces could also carry out sustained and concerted military operations, as demonstrated by their resilience to the government’s airstrikes and the defeat of the 310th Brigade. And Houthi leaders had the requisite control to implement the basic obligations under Common Article 3 of the Geneva Conventions. By July 9, 2014, and for years before, the Houthis had met the organizational international law criteria for being classified as an armed group in a non-international armed conflict.



Starvation as a Method of Warfare: Resolution 2417 (2018)

In a recent article published by Just Security I analyze the term “starvation as a method of warfare” (a term found in international humanitarian law), and I argue that the recent Security Council Resolution 2417 (2017) should not have restricted itself to considering starvation solely from the viewpoint of its use a method of warfare. I argue that starvation is caused by many reasons, including when targeting legitimate military objectives or with the collapse of economic and banking systems. The full article can be accessed here. The section that related to humanitarian law and starvation is reproduced below.

International Humanitarian Law and Starvation

Limiting sanctions to situations in which starvation is intentionally imposed significantly limits the Council’s sanctions power. In the text of the new resolution, “starvation” and “method of warfare” are inseparable. To use starvation as a method of warfare would be “…to provoke it (starvation) deliberately, causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies.” The same applies to the war crime of starvation, where one must demonstrate the intentional imposition of conditions of starvation on a population. The different ways in which one can demonstrate intentional starvation is outside the scope of this post, but, suffice it to say that it has been difficult for sanctions investigators to prove that a particular military or commander or an armed group intentionally starved a segment or a totality of the civilian population. For example, it is well accepted that a siege or blockade, whether it be of a country or a city within a country, may not in itself be a deliberate provocation of a situation of starvation, according to humanitarian law, “as long as the purpose is to achieve a military objective and not to starve a civilian population.”

There are multiple situations in which starvation may not be an intentional tactic, but may be a desirable, or tolerable side effect of military actions. For example, a belligerent may believe that a starving civilian population allows for the winning of the hearts and minds of people when food assistance is finally allowed in, or when starvation and desperation leads to regime change or weakening of political and military support for the enemy. In other circumstances, those in de facto or de jure control of territory may be negligent when confronted with potential starvation and may fail to adopt timely measures to prevent starvation even in the face of a humanitarian catastrophe. These circumstances offer examples of potentially sanctions-worthy conduct, but may not be examples of starvation being deliberately used as a weapon of war.

This is where Resolution 2417 (2018) could have broken new ground. The Council could have moved beyond limiting itself to contexts in which starvation is used “as a weapon of war” to cover other circumstances of conflict-induced starvation, including as indirect consequences of military actions of parties to conflict. This could have included situations in which lawful military action is being conducted despite clear warnings and indicators that a particular course of action would create or exacerbate starvation, but where the purpose of that action was not to starve the population.

In taking a wider approach, the Security Council could have drawn from international law obligations of parties to the conflict to take measures to minimize the deleterious effects of conflict on civilian populations. It could also have emphasized the importance of precautionary measures and proportionality assessments when parties undertake attacks against military objectives, when those military operations have significant potential to aggravate food insecurity or contribute to starvation.

Resolution 2417 (2018) does reiterate the international humanitarian law prohibition on direct attacks against objects indispensable to survival of the civilian population. But this may not be sufficient in situations such as Yemen and South Sudan, where parties are using these objects as cover for military operations or where belligerents and civilians share the same objects. For one, the rule that dual use objects may not be attacked may only apply in international armed conflicts between states. In non-international armed conflicts, it is doubtful, as elaborated by the ICRC, whether international humanitarian law prohibits attacks that are carried out in direct support of military action against such indispensable objects, including when those attacks may be expected the leave the civilian population with sufficiently inadequate food and water so as to cause its starvation. In conclusion, the Security Council would have been more inclusive if it considered a more progressive approach to the issue of starvation than being limited by its relationship to international humanitarian law.