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Yemen through a legal lens

Updated Apr 06, 2015 11:54am

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The writer is the author of International Law and Drone Strikes in Pakistan: the legal and socio-political aspects.
The writer is the author of International Law and Drone Strikes in Pakistan: the legal and socio-political aspects.

Yemen is in the midst of an internal armed conflict. The Houthi rebels forced the Saudi-backed president Abd-Rabbu Mansour Hadi to flee the capital to Aden in the south. From Aden, the president called for the intervention of the Gulf Cooperation Council.

The conflict between the Houthis and Hadi’s government is viewed as part of a regional proxy war between Iran and Saudi Arabia. After rebel forces closed in on the president’s southern stronghold of Aden last month, a coalition led by Saudi Arabia launched air strikes on Houthi strongholds and bases. The coalition comprises Jordan, Egypt, Morocco and Sudan, with Saudi Arabia exerting pressure on Pakistan to formally join the coalition.

Yemen is a nation in the throes of civil war and perhaps in the process of regime change. But Yemen as a state fully enjoys the protections of Article 2(4) of the United Nations Charter, under which “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. Pakistan is debating this but appears indecisive.

Further, all states are bound by the principle of non-intervention in the internal affairs of other states. This is a customary international law norm, which is explicitly detailed in Article 2(7) of the UN Charter. In other words, no state has the right to violate the sovereignty of Yemen by using armed force unless certain exceptional circumstances are present.

There are very few instances when the use of force against another state is not classified as an unlawful armed attack prohibited under international law. Firstly, intervention is justifiable if a state exercises its inherent right of self-defence under Article 51 of the UN Charter in response to an armed attack. Under customary international law, self-defence is limited by the requirements of necessity and proportionality. The rule is that only when the danger posed to a state “is instant, overwhelming, leaving no choice of means, and no moments for deliberation can a state respond”.


There are very few instances when the use of force against another state is not classified as unlawful.


Further, the International Court of Justice, in a number of seminal cases, has observed that only a state is capable of committing an armed attack. Attacks of non-state actors can only be attributed to the state when the latter effectively controls, directs and commands non-state actors.

Saudi Arabia does not recognise the rebels as a legitimate government, so it cannot argue that it is acting in self-defence against a hostile state. In any case, there is no indication that Houthi forces are targeting Saudi forces outside of Yemen.

A second premise for intervention would be if the UN Security Council passes a binding resolution under Chapter VII of the UN Charter. The Security Council could make a determination that the civil war in Yemen poses a threat to international peace and security under Article 39 of the Charter. It could then order the use of force under Article 42, and direct member states to intervene in order to maintain or restore international peace and security. However, the chances of such a binding resolution being passed in Saudi Arabia’s favour are remote, keeping in mind that Russia or China would veto it.

Thirdly, an intervention would not violate the sovereignty of Yemen if the incumbent government consents to or invites external military intervention. According to the International Law Commission, a state can legally consent to a foreign military presence or request military assistance on its territory against rebel groups. This principle has been reaffirmed by the International Court of Justice. However, such assistance can only be lawfully provided if the incumbent government requesting it exercises ‘effective control’ over its territory.

In this regard, state practice seems to show that the recognised and incumbent government’s will is accorded substantial deference, even when the government has lost control over substantial portions of its territory. However, under international law, it no longer enjoys effective control if it loses control over the capital city and is in “imminent danger of collapse”.

Yemen is in the midst of the latter, where the capital city and sizeable chunks of territory are under the rebels. Control enjoyed by Hadi is limited to Aden and that too is not far from collapse. Therefore, legally speaking, relying on the president’s consent for military intervention is highly problematic.

Doctrines such as the ‘responsibility to protect’ (R2P), ‘humanitarian intervention’ and ‘democratic intervention’ have been suggested as justifications for intervention in Yemen. These doctrines could allow for external military intervention on the premise that the Yemeni state is violating its responsibility to protect the human rights of its population. Such doctrines have not attained the status of international law and are often misused for accomplishing regime change.

At times, humanitarian intervention has been termed ‘imperialist intervention’. For many observers, such was the case in Libya when Muammar Qadhafi was ousted. In relation to the conflict in Syria, China and Russia have prevented any Security Council resolution sanctioning the use of force on the basis of these doctrines. Interestingly, the doctrine of R2P has been used to defend drone strikes in Pakistan — to rid Fata of the menace of the Taliban as Pakistan has failed to protect the human rights of its local Fata population.

Finally, can Pakistan act in ‘self-defence’ of Yemen? Self-defence under the UN Charter includes both the right of individual and collective self-defence. An example of the latter would have been if Pakistan had entered into a pact with Yemen earlier — when its government enjoyed effective control over its territory— to come to its aid if its sovereignty was threatened. As far as we know, Pakistan never entered into any such treaty and it cannot enter into one with a third state like Saudi Arabia, because only a sovereign state itself has the legal authority to do so.

Pakistan should, therefore, stay away from this war. It will end up violating international law by participating in hostilities.

The writer is the author of International Law and Drone Strikes in Pakistan: the legal and socio-political aspects.

Published in Dawn, April 6th, 2015

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The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.


Comments (40) Closed



Arun Sasi Apr 06, 2015 03:02am

what about the retrospective Sec council resolution like the second Iraq war when US attacked first and then arm twisted the security council..Intl law is a joke

Siddique Apr 06, 2015 03:47am

Whatever happened to presence of Iran Revolution Guards in Iraq, Syria and now in Yemen too ?

Kumar Apr 06, 2015 05:13am

Why is Saudi getting free ride in attacking Yemen?

saif Apr 06, 2015 09:33am

Nice and to the mark.

saif Apr 06, 2015 09:33am

Astonaahing.

saif Apr 06, 2015 09:34am

Good

saif Apr 06, 2015 09:34am

How?

ashok kumar lal Apr 06, 2015 12:01pm

How China got into Tibet.

Dr Mohsin Kazmi Apr 06, 2015 12:03pm

Who cares international laws which revolve around the United States

Carol Anne Grayson Apr 06, 2015 12:09pm

Imran Khan suggests Pakistan should have role of "mediator" but how can that be carried out when Pakistan receives so much funding and support from US allied to Saudi... hardly impartial! "Mediation is the involvement of an impartial third party to support and help those involved in a conflict to find a resolution"

Find more at: http://www.skillsyouneed.com/ips/mediation-skills.html#ixzz3WViidYuv

shamain Apr 06, 2015 12:10pm

Stupid.

Maqsood Anwar Apr 06, 2015 12:17pm

International law? The law which gives the powerful states to do whatever they want with the weaker states. Its that law because of which the lion drinking water upstream of the sheep, ate the sheep saying it was making the stream dirty. Nice article though.

Aaqil Apr 06, 2015 12:43pm

But why are Saudis putting pressure on Pakistan, as if we are their slaves and not an independent state ? Because Saudis know that we are used to taking dictations. And why are our rulers trying to portray this Arabs only conflict as if the Harmain Sharifain are under attack ? Because by doing so our rulers want to use the sentiments of people and want to show that their decision /offer of all kinds of support to Saudis is right and has the people's support t00.

Ali Shah Apr 06, 2015 12:44pm

As regards summoning of the joint session to "discuss" the issue on hand, though it is a good step but then why the views / opinions of legislatures were not found necessary to be obtained before (1) offering support (2) sending delegation to Riyadh (3) visiting Turkey ....and that too ahead of Iran the latter being our neighbour / friend while Turkey had already given statement against Iran and thus not remained neutral ? Even now there is no declared plan to visit Tehran which is very necessary to know our neighbour's concerns which are in plenty. The rulers are perhaps trying to get legislatures' backing thru majority vote and ignore the voice(s) of dissent.

ashfaq Apr 06, 2015 12:51pm

@Siddique Iraq and Syria have elected, sovereign , and authoritative governments that are functional .They have their armies in place, capitals functional and sate institutions working .If they ask any assistance from their friendly countries its justifiable and there is no obligation. For Yemen, Saudia invaded Yemen, Yemen having an internal rift for the power itself and Saudia invaded Yemen..thats the difference

alihbilgrami@msn.com Apr 06, 2015 12:55pm

@Siddique they are not in Yemen but they are fighting in Syria and Iraq at the behest and invitation of the respective legitimate governments and in the case of Iraq an elected one.

Sami Apr 06, 2015 01:30pm

Laws are only for the weak. Let's obey them!!

Azeez Apr 06, 2015 02:30pm

@Kumar. Simple. The Saudis do not like the "Winds of Change" blowing in the region. They want to protect their monarchy and their vulgar life style, at the expense of the poverty stricken hordes around them. The Houthis have not threatened the territorial integrity of Saudi Arabia. All they wanted was equality, dignity and justice.

Usman Apr 06, 2015 02:46pm

Iran's hell bent on creating its satellite states all over the middle east. First it was just Hezbollah in Lebanon and Syria, then it grew to Iraq, followed attempts in Bahrain and now Yemen. With US in bed with Iran now......Saudi Arabia must take the initiative to stop Iran in its tracks.

Zarar Apr 06, 2015 03:36pm

Its biggest ever joke of history that International law has any worth or credibility in security paradigm. Rather, its peace of paper with NOT BINDING at all for the states.

Anwar Apr 06, 2015 03:37pm

Pakistan should raise the voice against insurgency in Yemen by Iran. During war on terror US backed Iranian hostile groups in Afghanistan and Yemen and Arabs remained silent due to strong US pressure and now bearing such consequences.

Realist Apr 06, 2015 03:42pm

Whatever, whether the International Law gives authority KSA to intervene in Yemen or not, Pakistan must not get involved in this conflict. This is too risky, and dangerous for Pakistan to side with KSA or Iran.

Tahir Apr 06, 2015 04:40pm

International law is a joke, what laws allows drone strikes in Pakistan and Yemen?

KHALID SOHAIL SHAIKH Apr 06, 2015 04:59pm

Leaders of MUSLIM UMMAH are responsible for unity of whole Islam, regardless origin and mother tongue. This is incorrect trend of some Muslim regions they like identity as per mother tongue. Muslim should not kill Muslims, do not allow third party to divide you like past.

Nitin Apr 06, 2015 05:03pm

To put this simply:

1) The Iranians want to Expand 2) The Saudi's do not want Iranian dominance in their neighbourhood and get encircled by Iran 3) US has no interest in this conflict 4) The world leaders are enjoying show, including India

Shahpur Apr 06, 2015 07:52pm

Excellent analysis. I hope Pakistani lawmakers and military Generals read it and think about what is going on in Yeman and what Saudis are doing to the people o Yeman.

Canada Apr 06, 2015 09:18pm

Who cares about international law? As though the US followed it in Iraq, as though the US followed it in their interrogation techniques at Guantanamo Bay, as though US follows it using drones, as though Israel follows it in Palestine, as though UAE follows it with migrant labourers.............shall I go on?

hussain684 Apr 06, 2015 09:32pm

@Usman US, Russia, Saudi Arabia, and many others have the right to spread their influence but not Iran????

CYRUS Apr 06, 2015 10:30pm

@Realist

    You're right.  Pakistan has never helped an ally yet, so why start now?
CYRUS Apr 06, 2015 10:58pm

@Arun Sasi

    That's not true. 

International law is working in aid to Africa, Haiti and other countries, across the world's ocean routes, regulating air traffic, and in international trade. The Joke is George W. Bush.

CYRUS Apr 06, 2015 11:11pm

@Usman

    Pakistanis hate America for every dollar it has.
Ahsan Apr 06, 2015 11:12pm

There is lots of miss information on Pakistan media. Please read below article from Yemen Times

http://www.yementimes.com/en/1759/opinion/3540/Yemen-is-more-nuanced-than-%E2%80%98Sunni%E2%80%99-amp;%C2%A0%E2%80%98Shia%E2%80%99.htm

CYRUS Apr 06, 2015 11:17pm

@Shahpur

    If you want a revolution against the richest people in the world then stop talking and start your people's revolution in Pakistan first.  You and Imran Khan can start right now to lead the Islamic world into the future.
Muzaffar Ali Apr 07, 2015 01:40am

It is against the UN Charter to invade a sovereign state....if we break that law, who is there to stop others from invading us?

Ali Vazir Apr 07, 2015 02:19am

@hussain684 US, KSA, Israel have the right to spread not only their influence but also the hatred and bigotry as this is what they have learned from their peers.

Riaz M M Apr 07, 2015 03:21am

According to this analysis India openly violated international law by interfering in and invading East Pakistan in 1971(before dec 1971) where was the international law then and no one asked India to respect international law.The real questions are 1- is it wise to get involved in Yemen which has always been unsettled troublesome quagmire like Afghanistan with ever changing tribal loyalties.2-can we afford to say no to Saudi Arabia . ? Who cares for international law there are so many examples of unchecked accepted violations.

fida sayani USA Apr 07, 2015 03:56am

Good article highlighting the reasons Pakistan should stay away from the conflict. However first para does not lay the facts as it happened. Hadi fled from Sana when his forces caved in to the Houthis and moved to Aden, where he resigned as a President and was put under house arrest, however managed to move to Saudi Arabia. IT is in Saudi Arabia he asked for foreign intervention.

fida sayani USA Apr 07, 2015 04:00am

@ashok kumar lal How India got into Kashmir and so far has refused to honor the Resolution. Only might is right in this unholy world, whether you are an individual, organisation or a country.

SYED ZAFAR KAZMI Apr 07, 2015 04:37am

@Usman

Let then this SAUDIA be man enough do on its own; why does it have to be begging to Pakistan.

ayub Apr 07, 2015 05:39am

My dear friend! What are talking about? International law has died long ago. Every thing has changed. The concept of international law has changed entirely and so the phrases of legal dictionary.