Introduction
The humanitarian situation in Yemen was dire even before the escalation of conflict. The current phase of the crisis in Yemen started with the Saudi-led intervention on 26 March 2015. However, the challenges facing Yemen are decades long. Many of the challenges can be traced back to the years of mismanagement under former President Ali Abdullah Saleh’s regime. They include security challenges, extremely high unemployment, a separatist movement in the South, large number of internally displaced persons, food and water scarcity, and a high reliance on imports.
Under the years of mismanagement and corruption of the Saleh regime, the challenges in Yemen became interconnected. The patronage system led to corruption and polarization of Yemeni society. Corruption played a huge part in the mismanagement of Yemen’s dwindling oil and water resources. Furthermore, water resources were used to farm a semi-narcotic plant called Qat instead of food items. As a result of these challenges, Yemen is now almost completely dependent on imports for its survival. For instance, Yemen imports all of its rice, all of its medicine, 90% of its wheat, and 70% of its fuel.
The direct reason for the intervention was a call by President Hadi of Yemen for support to stop the Houthi who initiated a coup on 6 February 2015 and were about to consolidate their power by taking Hadi’s last stronghold – Aden. The coalition managed to stop the Houthi offensive on Aden and take back some of the areas lost to the Houthi during their advance, but the military situation is at a stalemate.
The Saudi-led coalition established a blockade on Yemen from the beginning of operations in March. The blockade limited all imports to Yemen, which, as mentioned above, is heavily dependent on imports. The lack of imports has severe consequences on Yemen. As a result of the blockade, the number of people who are food insecure in Yemen rose by more than 4 million, the number of children who are malnourished will likely increase by 1 million this year. Also the World Food Programme (WFP) warned of an impending famine to hit Yemen.
This paper will analyze the legality and the morality of the blockade on Yemen. In looking at the legality of the blockade, I will have to determine what type of conflict it is. I will determine that since international armed conflicts (IAC) have a stricter definition than non-international armed conflict (NIAC), which excludes any type of conflict not involving two or more states on opposing side, then the conflict in Yemen is a NIAC. I will also have to determine whether the coalition is an occupying force in Yemen. In doing so, I will look at the closest example to the current situation in Yemen, which is the blockade on Gaza. Israel is considered an occupying force in Gaza, which might lead people to believe that it is because of the blockade. However, Israel is an occupying force because it has effective authority as evidenced by them providing the majority of services in the Strip. Therefore, I will conclude that the coalition is currently not an occupying force, but the more Yemen becomes dependent on the coalition’s authority the closer the coalition get to become an occupying force.
I will analyze the requirements for a legal blockade under the San Remo Manual – the latest international document relating to naval warfare – and verify whether the coalition is adhering to these requirements. The manual states that a blockade should be prohibited if it has the sole purpose of starving the civilian population or denying it other objects essential for its survival, or, if the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies. I will argue that it is difficult to conclude with certainty that the coalition have failed to adhere to these requirements. However, the coalition have failed to adhere to the more basic requirement of declaring a blockade, since they do not even acknowledge the existence of a blockade.
With regards to the morality of the blockade, I will analyse it through the prism of just war theory (JWT). JWT is divided into two parts: principles relating to the morality of going to war (jus ad bellum), and principles relating to just conduct of hostilities (jus in bello). Jus ad bellum has seven principles which are just reason to go to war, competent authority, comparative justice, right intention, last resort, probability of success, and, proportionality. The coalition have met almost all these principles to some extent in deciding to go to war. However, the jus in bello principles of distinction and proportionality are more difficult to meet in modern warfare, and especially blockades. I will argue that this blockades and all blockades are immoral based on the just war principles of distinction and proportionality. Furthermore, this blockade is particularly immoral given Yemen’s unique circumstance (dire humanitarian situation, food and water scarcity, and high dependence on imports).
The paper will be divided into three main sections. Section 1 will provide an analytical framework for the paper. In it, I will discuss the definition of a blockade, the difference between IAC and NIAC, discuss the criteria for occupied territory, and go through the history of laws governing naval warfare and the requirements for establishing a legal blockade. In section 2, I will look at the unique case of Yemen. I will establish that Yemen’s challenges have a long history, and that they are interconnected. This entails that anything affecting the imports to Yemen will have a far reaching and devastating impact. In the last section, I will provide a legal and moral analysis of the situation in Yemen based on the framework and context I provided in the previous two sections. I will argue that the blockade on Yemen is illegal based on the technical requirement of declaring a blockade. Regarding the morality of the blockade, I will argue that all blockades are immoral based on the principle of distinction and proportionality, and the Yemen blockade is particularly immoral due to Yemen’s unique circumstances. Based on these two arguments, I will conclude that IHL needs to be further reformed if an immoral blockade such as the one on Yemen can only be classified as illegal due to a technicality.
Section 1:
What is a blockade?
The coalition led by Saudi Arabia does not consider that the blockade it is imposing on Yemen to be a blockade. The official spokesperson for the coalition told reporter at the beginning of the conflict that “the coalition is not imposing a blockade but an embargo.” He also specified that the embargo is in accordance with resolution 2216 (2015) of the United Nations Security Council (UNSC).
It is important, therefore, to begin with a discussion on the definition of a blockade and embargoes. “A blockade is a belligerent operation to prevent vessels and/or aircrafts of all nations, enemy and neutral, from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation.” A blockade in essence is an act of war that requires the use of military force to implement. Furthermore, a blockade is not limited to two states, but rather includes not allowing third parties to deal with the “enemy nation.”
An embargo, on the other hand, is limited to two nations and does not require the use of force to implement. Multiple states can enact an embargo on one state, but the embargo would still be in essence a bilateral action. Therefore, “an embargo is when one nation establishes a policy not to trade with another nation and not to allow its own ports or territory to be used for commerce with that nation.”
There are many examples of blockades and embargoes. Most Arab states could be said to have an embargo on Israel since they do not trade with Israel, but, at the same time, they do not block any third party from trading with Israel. Israel, on the other hand, has a blockade on Gaza, since it does block third parties from reaching it through the use of force. The Cuban Missile Crisis was due to the fact that the US was willing to change the embargo it imposed on Cuba to a blockade.
It is easy to see how the Saudi-led coalition’s blockade is in fact a blockade. The coalition imposes restrictions through the use of force on all vessels trying to reach Yemen. The measures are not restricted to bilateral action between the coalition’s states and Yemen but includes third parties. For instance, food imports to Yemen have declined to 20% since the start of the blockade in March of this Year.
Just War
In order to analyse whether the blockade on Yemen is moral or not, I will test it against the doctrine of Just War Theory (JWT). The history of JWT is long with many different traditions. The modern version of JWT can be divided into two sets of principles: jus ad bellum, and jus in bello. Jus ad bellum consists of the reasons for going to war and whether or not they are justified, and jus in bello governs the conduct of hostilities during war. There are also two more modern innovation entering JWT, which are jus post bellum (justice after war), and jus ex bellum (justice to end wars). However, this paper is more concerned with the former two.
With regards to jus ad bellum, a war could be considered “just” if it adheres to a number of principles. The first is that the reason for going to war must be justified. The second is that war should be declared by “competent authority,” such as governments. The third is “comparative justice,” which is a recognition that both sides (or all sides) of the war might have a partly valid reason for the war. This principles intends to limit the means of war through recognizing the other is not entirely in the wrong. The fourth is that the parties have right intentions as set out by the first principle. The fifth is that war should be the last resort after exhausting other means to resolve the conflict. The sixth is probability of success of the war effort. If a war has no chance of success, then going to war cannot be justified under JWT. The final principle is proportionality, which also is a principle under jus in bello. Proportionality states that the expected good to come out of going to war should be proportional to the damage inflicted.
With regards to jus in bello, the proportionality principle becomes more specific. It states that the military advantage gained from an attack should be proportional to the suffering inflicted. Therefore, it is addressing the specific attacks or operations as opposed to the war in general. The second principle of jus in bello is discrimination or distinction. This principle states that combatants must discriminate during the conduct of hostilities between combatants and civilians caught up in the war.
Since this paper have established that the import restrictions applied by the coalition in Yemen is in fact a blockade, and that a blockade is an act of war, JWT provides a good evaluation into the morality of the blockade. JWT is a more suited vehicle for analysis of the morality of the blockade because it is more concerned with justice than international law. However, given the subjectivity of JWT, it is not suitable vehicle to analyse the legality of the blockade. International humanitarian law has specific rules regarding warfare, but what set of rules that apply in a conflict depends on the type of conflict it is.
Armed Conflicts
According to the general accepted definition provided by the International Criminal Tribunal for the former Yugoslavia (ICTY), an armed conflict is said to “exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached.” Under IHL there are only two types of armed conflict; international armed conflicts (IAC), consisting of opposing two or more States; and, non-international armed conflicts (NIAC), between governmental forces and nongovernmental armed groups, or between such groups only.
According to the provisions of the Geneva Conventions of 1949, an IAC occurs whenever there is an armed conflict between one or more states against another state regardless of reason or intensity. An IAC exists even when one or both states deny the existence of a state of war between them. It is purely based on facts on the ground. Based on this definition of an IAC, it is difficult to classify the coalition’s operation in Yemen as an IAC. The coalition is in no way considered to be fighting the Yemeni state or government. The coalition is mainly fighting the Houthi rebels who were never recognized by the UN as the legitimate government in Yemen. But there is also a further element that complicates this categorization – the fact that some of the armed forces of Yemen are fighting alongside the Houthis. Yet, just because these units are former official military does not mean that they are still representing the state of Yemen.
The second type of conflict as mentioned above is the non-international armed conflict. There are two legal sources for NIAC – common Article 3 of the Geneva Conventions of 1949, and Article 1 of Additional Protocol II.
Article 3 defines NIAC as “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties.” This definition, however, is not specific enough and does not exclude any armed conflict between the government and armed groups. Therefore, this would include internal disturbances, riots, and other forms of violence by a group with arms. However, it has been widely accepted that hostilities must reach a certain threshold of violence intensity for Article 3 to be applied. Also, that the armed groups involved should have some sort of organization as to sustain violence.
Article 3’s definition is supplemented by Article 1’s definition, which narrowed the focus. It states that a NIAC is that “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”
This paper is of the view that the conflict in Yemen does not fit completely in either one of the two conflict types mentioned above. However, the definition of IAC is very strict and the conflict in Yemen cannot be made to fit within it. Furthermore, it is generally accepted that when various groups fight in the territory of a high contracting party in the absence of a functioning state that this type of conflict would be considered NIAC. Also, in the case of Rwanda, it has been accepted that the conflict remained a NIAC, even though the conflict could be said to have spread to the neighbouring states.
Even though it is important to note what type of conflict it is to establish what type of laws applies to it (either Protocol I or II), in fact the law that this paper is most concerned with is included in both protocols, which is Article 54 of Protocol I and Article 14 of Protocol II entitled “Protection of objects indispensable to the survival of the civilian population.” These two articles consider starvation of civilians as a method of warfare to be prohibited. These two articles were later included in the San Remo Manual, which governs modern naval warfare and blockades.
On Occupation
Before proceeding to examine the specific laws governing blockades, it is worth discussing the possibility of considering the coalition’s’ forces as occupiers in Yemen, and the legal ramifications of that.
According to Article 42 of the 1907 Hague Regulations, a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” An occupying power have different responsibilities than that of a combatant state. An occupying power must take measures to restore and ensure public order and safety. The occupying power has obligations relating to the provisions of services. It must ensure sufficient hygiene and public health, and the provision of food and medicine.
At first glance, it is difficult to say that the coalition is or could be considered an occupying force since it claims not to have troops on the ground. Yet, as evident by the definition, troops do not need to be directly involved. Authority can be extended through other means.
The Gaza Strip is a good case in point. Gaza is blockaded by Israel and Israel is, generally considered, an occupying power there, even though it withdrew militarily in 2005. Does it mean that Gaza is considered occupied by Israel due to the Israeli blockade? The short answer is no.
In order to establish whether a territory is occupied according to IHL, the territory would be tested against the principle of “effective control.” Establishing effective control is not clear cut. For the case in Gaza, there are a number of variables taking into account, among them the blockade. Therefore, the criteria is not limited to control over the airspace and waters. Israel is considered an occupying power in Gaza because of the blockade, and because it provides a number of services to the Strip, including the provision of electricity, fuel, water, telecommunications, sewage removal, and other administrative services.
Based on this criteria, the coalition is still not an occupier in Yemen. However, the coalition is in an awkward position. The more responsibilities the coalition takes and the more services they provide to the people of Yemen, the more likely it is for them to be considered occupiers.
Another factor in determining whether a force is an occupier or not is there designation as a “hostile army.” Since, legally, the coalition’s mandate comes from an invitation of support by President Hadi of Yemen, and since President Hadi is considered the legitimate authority in Yemen, it is difficult to say that they are a hostile army. However, morally, it could be said that they are a hostile army since they are committing crimes in Yemen.
Laws Governing Naval Warfare and Blockades
I will focus in this subsection on the laws governing naval warfare and blockades. I will not discuss laws governing airspace blockades since this a newer method of warfare that does not have a long history such as naval warfare and blockades.
It is important to note the history of these laws because there is no complete treaty on naval warfare. Furthermore, these laws were initially developed as customary international law then established into some treatises and manuals. There are four laws that I will discuss here – the 1856 Paris Declaration Respecting Maritime Law (Paris Declaration), the 1909 London Declaration concerning the Laws of Naval Warfare (London Declaration), the Oxford Manual on the Laws of Naval War Governing Relations Between Belligerents (Oxford Manual), and the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (San Remo Manual).
The Paris Declaration’s main contribution to the laws governing blockades is that it stipulated the blockade must be deemed effective, which entails them being “maintained by a force sufficient really to prevent access to the coast of the enemy.”
As for the London Declaration, it is more comprehensive and progressive. Chapter One of the Declaration relates to blockades in time of war, and considers that a blockade is an operation of war, which is imposed by warships. It lists four main conditions for a blockade to be imposed. The first is that the blockade must be declared and notified. The second, which comes from the Paris Declaration, is that it must be effective. The third is that the blockade must be applied impartially to all ships. The last condition stipulates that the blockade should not prevent access to the ports and coasts of neutral states.
With regards to declaring the blockade and the notification, when declaring the blockade, the blockading power must specify the date, the geographical limit, and the period within which neutral vessels may come out. The blockading power must also notify (1) the neutral parties via a communication to their governments or representatives, and (2) the local authorities through the commanding officer of the blockade.
The London Declaration was not ratified at the time by the UK’s House of Lords due to a number of concerns. The main concern was with a condition that the blockading warships must be within sight of the coasts or ports being blockaded. This meant that, with the advancement in warfare technology, the ships might be easily targeted by troops on the coast. Even though the Declaration was not ratified, it was distributed to the British troops during World War I, and later on, the US requested that it be implemented by all states.
During the Second International Peace Conference in the Hague in 1907, delegates made the request to include laws governing naval warfare in the next conference. The Oxford Manual of 1913 was a result of that, and even though it was envisioned to be a comprehensive manual governing all aspects of naval warfare, it did not delve too much into naval blockades. In fact, the only mention of a blockade is in Article 30, which states that “Ports and coasts belonging to the enemy or occupied by him may be subjected to blockade according to the rules of international law.”
The San Remo Manual of 1994
The San Remo Manual was drafted between 1988 and 1994 by legal and naval experts. The Manual, even though it is not formally a legally binding document, seeks to codify existing customary international law relating to naval armed conflicts. After considering treatises, states’ behaviors during conflicts, military manuals, judicial writings, the experts found that IHL provisions associated to land warfare are also applicable to naval warfare. The San Remo Manual is important because it is the latest document and therefore takes into account significant changes that happened at the international scene, including two world wars, the Geneva Conventions, and new military technologies (aircrafts).
The Manual did not distinguish between the two types of armed conflicts (IAC and NIAC), therefore any engagement between naval forces is under the scope of San Remo. However, since the Manual did not mention NIAC, some argue that it applies exclusively to IACs. The Manual also states specifically in paragraph 4 that the principles of necessity and proportionality are applicable to armed conflict at sea just as they are at land.
The San Remo Manual reemphasized the four conditions mentioned above under the London Declaration, but it differs from the London Declaration in some ways. Recognizing the danger to the blockading warships, the Manual does not include the condition that the warships should be visible from the coastlines. It also addresses the modern phenomena of blockading airspace, and stipulates that general principles of the Manual shall apply to airspace blockades.
The biggest difference to previous customary laws and treaties governing naval warfare is that the Manual takes into account the effect of the blockade on the blockaded entities. In paragraph 102, the Manual states that “a blockade is prohibited if (a) its sole purpose is to starve the civilian population, or if (b) the damage to the civilian population as a result of the blockade is excessive in relation to the military advantage.”It is easy to see that these two conditions are influenced by the Article 51 (5)(b) and Article 54 (1) of Additional Protocol I of the Geneva Conventions, regarding indiscriminate attacks and starvation respectively.
The manual also provides other principles that will be helpful in determining the legality of the blockade on Yemen, mainly paragraphs 103 and 104. The paragraphs are as follows:
103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:
(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and
(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.
104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.
We can sum up the requirement for a legal blockade as follows: (1) a blockade must be declared and notified. (2) it must be effective, (3) it must applied impartially, (4) it must not prevent access to ports of neutral states, and finally, (5) it must adhere to certain humanitarian law obligations.
Russell Buchan have argued that a sixth requirement is that the blockade must be in response to an international armed conflict, which would mean that the Yemeni blockade is illegal given the determination that the conflict in non-international. However, this sixth requirement is not in the San Remo Manual, which this paper considers to be the current and most comprehensive documents on the laws of naval warfare and, specifically, blockades. Furthemore, since the Manual did not specify whether it applies to IAC or NIAC, this paper have made the determination that the San Remo Manual applies to both types of conflicts.
Section 2:
The Political Scene in Yemen
The current phase of the crisis in Yemen started with the Saudi-led intervention on 26 March 2015. However, the challenges facing Yemen are decades long. Yemen was divided into two separate countries that united in 1990. Then President of the Northern Yemen, Ali Abdullah Saleh, oversaw the reunification and led Yemen until the events of the Arab Spring in 2012.
Many of the challenges facing Yemen today can be traced back to the years of mismanagement under Saleh’s regime. The challenges facing Yemen include extremely high unemployment, a separatist movement in the South, large number of internally displaced persons, and a high reliance on imports. Saleh managed the affairs of Yemen through a network of politicians, military officers, tribal leaders, and businessmen linked to him personally or his family and tribe. The Saleh regime relied on favouring elites willing to support the regime and marginalizing those who opposed him. Those who supported Saleh benefited from the revenues of Yemen’s small oil industry. Those who were most marginalized were the Southerner and the Northern Zaydis. This marginalization contributed to the emergence of the Southern secessionist movement of al-Hirak, and the Northern Zaydi movement of the Houthis.
Saleh was also a shrewd politician relying on the peculiarities of the Yemeni society to divide and pronolong his rule. He allied himself with Sunni and tribal militias to weaken the marxists in the South only to ally himself later with the Houthi movement to counter the increasing strength of the former. His strategy served to polarize Yemeni society into different factions with opposing views and sometimes a history of conflict such as the case between the Houthis and the Sunni Islah Party.
The Economic Woes
The political polarization was not the only challenge that came about as a result of the Saleh regime. Yemen is the poorest country in the Arab World, and the consequences of its over reliance of oil are already being felt. In 2010, Yemen’s oil exports accounted for more than 75% of government revenue, and this revenue as mentioned above helps maintain Saleh’s patronage system. However, Yemen’s oil reserve is decreasing dramatically and the fall of global oil prices had a huge impact on the Yemeni economy.
Furthermore, up until 1990 many Yemenis worked as unskilled labourers in Saudi Arabia and other Gulf Countries. These Yemenis contributed to the Yemeni economy by allowing the Yemeni economy more room to absorb the labor force that was still in Yemen. However, the governments of the Gulf countries expelled the Yemeni migrants due to Saleh supporting Saddam Hussein during the Gulf War. The return of tens of thousands of migrants contribute significantly to the economic challenges in Yemen.
Adding to Yemen’s economic troubles are the rampant corruption that Yemen faces. According to Yemen’s auditing agency, 30% of government revenues are not deposited into government accounts. This also goes back to President Saleh and his party the General People’s Congress who benefit from this system through the black market.
The Demographic Challenge:
Yemen also faces a huge demographic challenge. Yemen, even though it is the poorest country in the Arab World, has one of the world’s highest population growth rates. The high population growth rates which in recent years was 3.4% contributed to the young age of the Yemeni population with one third of the population under the age of 24. This large number of youth and weak economy translated into Yemen having an unemployment rate of 50% in 2012. As a result of all these factors, Yemen suffers from severe poverty with 45.2% of the population living under the poverty line in 2010.
Yemen’s population is also dispersed through the difficult terrain of the country. There are approximately 135 thousands remote villages and settlements, limiting the government’s reach and its ability to provide for the people. In 2010, the CIA factbook estimated that 69% of the Yemeni population lived in rural areas.
Food and Water Scarcity
Yemen also faces an acute water shortage throughout the country, which might lead to Sanaa becoming the first capital city in the word to run out of water. The reason for the water scarcity are not only because Yemen is one of the most water scarce countries in the world. They are due to a number of reasons stemming from poor water management on behalf of the government, which did not include a Water or Environmental Ministry until the 2000s. Poor water management continues, with the rate of extraction of water being higher than the rate of replenishment. Adding to the this problem is the fact that 99% of water extraction is being done without a license.
Furthermore, 75% of Yemeni men chew a semi-narcotic plant called Qat. This plant absorbs a large amount of Yemen’s dwindling water resources. Farmers favour this plant over other crops because it is easy to grow, it grows year round, and it generate more revenues for them. Not only does Qat take up water resources, but it is also contributing to less land being used to farm food.
In 2010, 10 million Yemenis, which account for 44% of the population, lacked access to nutritious food, with 5 million lacking subsistence to survive. The food problem is interlinked with the challenges mentioned above. The overreliance on oil means that Yemen is highly susceptible to price fluctuations. In recent years, fuel prices rose by more than 500% thus affecting fishermen who were unable to power their boats, farmers who were unable to irrigate their lands, which in turn affected businesses and unemployment. The lack of food in Yemen made the country almost entirely reliant on food imports with all rice imported and 90% of wheat. Therefore, any restrictions on imports will have a direct consequence on the Yemeni civilian population.
The Blockade
The current phase of the conflict began with the Saudi-led coalition targeting the Houthis and their allies on 26 March 2015. The direct reason for the intervention was a call by President Hadi of Yemen for support to stop the Houthi who initiated a coup on 6 February 2015 and were about to consolidate their power by taking Hadi’s last stronghold – Aden. The coalition managed to stop the Houthi offensive on Aden and take back some of the areas lost to the Houthi during their advance, but the military situation is at a stalemate as of November 2015. Both sides of the conflict are deadlocked around the strategic cities of Marib in the East and Taiz in the South.
The Saudi-led coalition established a blockade on Yemen from the beginning of operations in March 2015. The blockade limited all imports to Yemen, which, as mentioned above, is heavily dependent on imports, including for 70% of its fuel and 100% of it medicine. The lack of imports has severe consequences on Yemen. As a result of blockade, the number of people who are food insecure in Yemen rose by more than 4 million, the number of children who are malnourished will likely increase by 1 million this year. As a result of the blockade and the challenges facing Yemen, the World Food Programme (WFP) warned of an impending famine to hit Yemen.
The Casualties:
Compounding the humanitarian crisis due to the blockade is the increase in the number of internally displaced people (IDP) who are often the ones most in need of assistance. The number of IDPs increased fourfolds since the conflict escalated in March to reach 2.3 million people. The number of people in need of assistance has reached 21.2 million or 82% of the population. The number of casualties reported as of October 2015 is more than 32 thousand with 5,604 deaths. However, given that many cases will go by unreported due to the ongoing conflict, these number are significantly underestimated.
Section 3:
The Legality of the Blockade
In an attempt to skirt away from their international obligations, the coalition’s forces refuse to acknowledge that the blockade they enforce on Yemen is in fact a blockade. As mentioned above, the coalition’s spokesperson stated from the beginning of the conflict that, in the opinion of the coalition, they are not imposing a blockade but the embargo mandated by the Security Council.
I have provided in the first section of this paper the difference between a blockade and an embargo. In sum, a blockade is enacted through the use of force on a territory to block it from all parties. On the other hand, an embargo is not an act of war and is simply a state deciding to cut off some economic ties to another state.
Then, is the coalition’s action a blockade or an embargo? The answer is simple. It is in fact a blockade for a number of reasons. Firstly, it is enforced through the use of military force. From the beginning of operations, the coalition enforced the blockade through the use of warships. Secondly, the blockade is not limited to the parties involved in the conflict but it extends to all parties. If it were an embargo, as the Spokesperson claims, it would have been limited to the states participating in the coalition and the Houthis and their allies in Yemen. However, the blockade include humanitarian agencies attempting to deliver aid and third parties. For instance, the coalition intercepted a ship they claimed to belong to Iran in September.
Furthermore, there is nothing in the Security Council resolution regarding the embargo authorizing member states to intercept or search third party vessels in the way the coalition has been doing. Operative paragraph 15 of Security Council resolution 2216 (2015) authorizes member states to inspect all cargo to Yemen “in their territory.” The coalition’s forces are not applying the embargo to cargos in their territory but extending to the territory of Yemen and its vicinity.
After establishing that the blockade is in fact a blockade as opposed to an embargo, I will test to see if it meet the requirements for a legal blockade. Since the coalition refuses to acknowledge the existence of a blockade, they have failed in adhering to some of the basic requirements to establishing a legal blockade.
The first requirement is that the blockade must be declared to all belligerents and neutral states, and that the declaration must specify the “commencement, duration, location, and extent of the blockade and the period within which vessels of neutral States may leave the blockaded coastline.” By not acknowledging the blockades, the coalitions failed in adhering to this basic requirement to establish a legal blockade.
The second, third, and fourth requirements, as mentioned in this paper, state that a blockade must be effective, impartial, and not block access to ports of neutral states. Since the beginning of the operations, there has not been reports of the blockade being breached. The blockade has been successful in preventing a number of vessels from entering Yemen without authorization. Therefore, we can conclude that the blockade has been effective. The blockade has also been applied to all states, except those who are apart of the coalitions. Therefore, the third requirement have been met as well. Finally, there also no reports of the coalition blocking access to ports belonging to neutral states. Therefore, with regards to these three requirements, the coalition have adhered to the laws regarding establishing a legal blockade.
The final requirement is the most troubling in the case of Yemen. It is also one of the most difficult to determine. This requirement basically stipulates that the blockade must be in accordance with the principle of humanity. This requirements specifically states that a blockade is prohibited if its sole purpose is to starve the civilian population or deprive them of objects essentials to their survival or if the damage to the civilian population is excessive in relations to the military advantage that is anticipated from the blockade.
If the blockade fails to meet any of the two criteria then it is illegal. The second criteria is even more difficult than the first. How do we determine what is excessive and what military advantage might be deemed appropriate? The international community, through the Security Council, have made it clear that the Houthis are the illegitimate authority in Yemen. The Security Council have also imposed sanctions on them, their leadership, and their allies. The sanctions are also specific to arms, which is what the coalition is trying to prevent from reaching the Houthis. Therefore, it could be said that the advantage gained is acceptable in relations to the damage to the civilian population. It would be easy for the coalition to argue that the blockade is not prohibited based on this criteria given the issues just highlighted.
With regards to starving the population or depriving them of essential objects to their survival, the blockade have had a devastating impact on Yemen. As mentioned above in this paper, Yemen is highly dependent on imports for its survival, many in Yemen lacked access to nutritious food even before the war, and Yemen is extremely water scarce. These factors, I argue, make the blockade illegal based on this criteria.
Also, because of the blockade, the supplies of medicine, fuel, food, and water have been greatly affected, and Yemen is facing a possible famine according to the WFP. The number of people in need have risen since the conflict escalated in March, and the resources are decreasing. There is no doubt that the blockade is starving civilians and depriving them of objects essentials to their survivals.
However, there is one mitigating circumstance in the San Remo Manual that makes it difficult to determine with certainty that the blockade is illegal based on this requirement. The San Remo Manual stipulates that the blockade is illegal if the sole purpose of it is to starve civilian and deprive them of essential objects. Therefore, it is almost impossible to make the determination that the sole purpose of the blockade is to starve civilians.
In summary, I believe that, even though the blockade may be deemed illegal under the principles of humanity, it can only be deemed illegal with certainty under the first requirement, which is to declare the blockade. However, this should not be taken to mean that there is nothing wrong with the blockade except under this technical point. On the contrary, it could be said that there is something lacking in IHL when a devastating blockade such as the one imposed on Yemen, which is leading to a famine, can be deemed legal had the blockading power simply made a declaration.
The Morality of the Blockade
The Just War Theory (JWT), as mentioned above, is divided into two main sets of principles – jus ad bellum and jus in bello. I have listed six principles for jus ad bellum, which are just reason to go to war, competent authority, comparative justice, right intention, last resort, probability of success, and, proportionality. There are only two main principles regarding jus in bello, which are proportionality and distinction.
Since jus ad bellum establishes the morality of going to war as opposed to the conduct of hostility, in testing the morality of the blockade (a conduct of hostility), I will have to establish first the morality of the war according to JWT. The coalition went to war in Yemen as a result of a call from the legitimate government in Yemen to intervene to stop the advance of the Houthi militias. Therefore, the reason for going to war in Yemen (restoring the authority of the legitimate government) is justified. Also, since it is the legitimate government in Yemen who called on its partner to intervene, and the coalition is fighting alongside and for the government, the competent authority principle have been met.
Yemen’s government have never stated definitely that the Houthis are not allowed to be part of the talks to resolve the conflict. However, they did put conditions on the Houthis joining the talks, such as accepting the legitimacy of the President and withdrawing from the cities they conquered. Therefore, there is an acknowledgment that the Houthis might have legitimate grievances that must be addressed. This indicates that the principle of comparative justice have been met.
The right intention have been established since the coalition is attempting to restore the government of Yemen. However, some might argue that the intention of the coalition is not mainly to restore the government but first to defeat the Houthis, who are considered by the coalition as proxies of Iran in the region. The right intention might become increasingly questioned if the government authority returns completely in the South of Yemen, and the Houthis agree to talks to withdraw from the North (to their stronghold in the Northern part of Yemen).
The coalition along with the Yemeni government have indeed resorted to war as a last resort. The Houthis played a large part during the protests against rising fuel prices in Yemen in the summer of 2014. They have used this instability to takeover the capital in September 2014, then rejected a draft constitution. They forced the president and his cabinet to resign, which led President Hadi to flee the capital to Aden in February 2015. Based on the timeline of these events and the escalation by the Houthi, I argue that war was indeed a last resort. Adding to the escalation by the Houthi and their advance towards the South, the international community also initiated a number of measures against the Houthis. The Security Council put sanctions on two members belonging to the Houthis in November, then condemned the Houthi takeover in February.
It is difficult to judge the probability of success for the current war. Some might argue that the Saudis have fought against the Houthis in the past and, for all intents and purposes, lost. Therefore, the probability of success is low for the current war. However, the circumstances and objectives of this war are different. The Houthi were in their stronghold in the previous war, but they are in almost all parts of Yemen in this war. Therefore, this war is closer to a conventional war than the last, which makes the probability of success higher.
The last principle for jus ad bellum is the most problematic because of the unique case of Yemen. This principle under jus ad bellum basically states that the good that should come out of the war should be proportional to the harm that the war will inflict. Since Yemen was already in terrible state (high dependence on imports, lack of infrastructure, lack of nutritious food, poverty, fuel and water scarcity), any disturbance to the already crumbling society could be perceived as excessive. However, one can argue that the perceived good to come out of the war is that Yemen will be a functioning state as opposed to a crumbling state. Therefore, it is difficult to say with certainty that the principle of proportionality have not been met.
In sum, Yemen and the coalition have met the principles set out in jus ad bellum but some of them, such as proportionally, are dependent on a swift and successful outcome to the war, which would guarantee a functioning state. Also, the principle of good intention might be considered, in retrospect, to be invalid if the coalition’s objectives and the government’s start to differ greatly.
As for the two principles of jus in bello, I will only focus on the blockade and its morality as opposed to other conducts of hostilities. By its very purpose a blockade can never distinguish between civilians and combatants. In fact, a successful blockade would be one that forces the leaders of the enemy nation to acquiesce due to the suffering imposed on their people.
With regards to the principle of proportionality in jus in bello, Yemen’s food insecurity was high before the war, and humanitarian agencies are warning of an impending famine in Yemen, therefore, there is no moral argument to support establishing a blockade in Yemen. Furthermore, not only is food insecurity growing, but also the amount of medicine available in the country is limited just when Yemen needs it most. Therefore, no military advantage or political objective can justify the amount of suffering inflicted on the Yemeni people by the establishment of the blockade.
Mitigating circumstances?
Even though it is clear that the blockade have had a devastating impact on Yemen, the results might actually be much worse given that the blockade is ongoing and that the conflict makes it difficult to establish a clear picture of the catastrophe. However, there are some circumstances that might be considered mitigating as to the morality of the coalition’s action in Yemen.
The first mitigating circumstance is the establishment of a United Nations Verification and Inspection Mechanism (UNVIM) in August of this year. The purpose of this mechanism is to take over the monitoring responsibilities from the coalition. Therefore, some might argue that the coalition is no longer responsible for approving what shipments can enter Yemen. However, the UNVIM has not been implemented due to a lack of funding, and the coalition is the one implementing the blockade in general and not only the verification mechanism.
The second mitigating circumstance is that some of the states belonging to the coalition are the main donors to Yemen, with Saudi Arabia, the United Arab Emirates, and Qatar accounting for more than half of all donations to Yemen in 2015. The phenomena of belligerent donor is an interesting one for many reasons. There are many questions that arise from this phenomena. Do belligerents become donors out of a sense of responsibility or do they seek to soften their image? This is a difficult question to answer because, I believe, the answer is somewhere in the middle. Belligerent want to soften their image (i.e. make their actions more moral) but their image is tarnished because they are perceived to be responsible. Therefore, these two are interlinked. No state will aim to soften its image without some perceived notion that it is responsible for the action or crimes being committed.
The second main question with belligerent donor is that how should humanitarian agencies respond to this phenomena. Should they benefit from the donations of belligerents knowing that this might help soften their image and ultimately lead to a prolonging of the conflict (since there is less international condemnation or scrutiny)? Or should they refuse to accept donations from belligerents knowing that this will lead to even more harm to the civilian population? These are difficult question to answer in isolation and without a thorough analysis of the situation. Ultimately, I believe, it comes down to weighing two variables against one another. Does accepting aid prolong the conflict versus how much people will suffer as a result of not accepting aid.
Conclusion:
I have provided, in the paper, a legal and moral analysis of the blockade imposed by the coalition on Yemen. Yemen is the poorest country in the Arab World and is highly dependent on imports. It imports almost all of its food, fuel, and medicine, therefore, anything affecting this fragile situation will have a devastating impact. Along came political instability that led to the coup of February, then the intervention by the coalition and the imposition of the blockade. Yemen now is at the highest level of humanitarian emergency, and the longer the conflict and blockade last, the worse the humanitarian situation will be.
It is no surprise that based on the principles of just war theory, I have determined the blockade is immoral. All blockade are immoral based on the principles of distinction and proportionality in jus in bello. However, the blockade on Yemen is even more immoral given the unique situation of Yemen.
I have also concluded that the blockade is illegal with certainty. However, this conclusion is really down to a technicality. The coalition refuses to acknowledge that the blockade is in fact a blockade. They call it an implementation of an embargo. After looking at the definitions of blockade and an embargo, it is clear that the coalition is imposing a blockade. It is ironic that perhaps in their attempt to skirt away from their responsibility under IHL by refusing to acknowledge the blockade, the coalition have in fact made the blockade illegal by not complying with the simple requirement of declaring the blockade.
The discrepancy between the morality and legality of the blockade raises a number of questions regarding IHL. Had the coalition complied with the requirement to declare the blockade, it could have been easily argued that the blockade is legal under IHL. This leads me to question IHL given that blockades in general are immoral and specifically a blockade that might cause a famine. Therefore, there needs to be an update to IHL when it comes to blockades so that the laws concerning them be more in line with the morality of jus in bello.
Bibliography:
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