Historical Background on Conflict
1. On 26 March 2015, a Coalition led by Saudi Arabia consisting of the United Arab Emirates, Qatar, Kuwait, Bahrain, Egypt, Jordan, andMorocco (together “the Coalition”) launched a war on the people of Yemen without a UN mandate. From the outset, this Coalition was supported politically, diplomatically, and militarily by the United States of America, the United Kingdom, France, and Turkey. Upon launching the war, the Saudi Coalition conducted airstrikes that killed and injured hundreds of civilians and leveled civilian infrastructure. After three weeks of airstrikes, the UN Security Council adopted Resolution 2216 on 14 April 2015, placing an arms embargo on 5 named individuals in Yemen.[ii]
2. After about two months of war without achieving its stated official objectives and after failing to convince Egypt[iii], Pakistan[iv] and Turkey[v] to provide ground troops, the Coalition sought out other ways to bolster its troops on the ground in preparation for a ground invasion. To achieve that end, the Coalition hired foreign troops and mercenaries. After months of stalemate, the number of countries participating in the Coalition increased to include Sudan[vi] and Senegal[vii], both sending large numbers of troops to Yemen. In addition to hiring Sudanese and Senegalese troops, the Coalition relied and continues to rely on the use of mercenaries to continue hostilities.
3. The Saudi Coalition imposed a comprehensive land, air and sea blockade on Yemen, under the cover of U.N. Security Council Resolution 2216, which involve an arms embargo, asset freeze and travel ban on five named individuals. The Saudi Coalition stopped ships at will, and over the course of the first 600 days of war delayed their entry for days, weeks or months at a time under the pretext of ongoing weapons searches, granting them entry at times only after a coerced bribe. Ships were also whimsically denied entry entirely.
4. In May 2016, former Secretary General Ban Ki-moon announced the U.N. Verification and Inspection Mechanism (UNVIM). The UNVIM is designed to facilitate the unimpeded flow of commercial goods and services to 3 Yemeni ports - Saleef, Mokha, Hodeidah and associated oil terminals - while ensuring compliance with the arms embargo imposed by the U.N. Security Council. In effect, the UNVIM addresses the Coalition’s blockade by establishing a U.N. mechanism for searching and inspecting incoming ships for weapons, making the process more efficient and thereby helping to alleviate the mass suffering caused by the blockade.
5. In his update to the U.N. Security Council on 31 October 2016, the Undersecretary General and Emergency Relief Coordinator Stephen O’brien stated that offloading cargo can take up to 30 days because of 1) inefficient port management, 2) financial disputes among shippers and above all 3) slow offloading due to limited capacity at Hodeida port which was severely damaged by airstrikes in August 2015. As a consequence, fuel imports have averaged a fifth of the pre-airstrikes levels since February 2016.[viii]
6. In his most recent update to the U.N. Security Council on 26 January 2017, O’brien stated that “delays in receiving clearances are also due to restrictions imposed by the Saudi-led Coalition such as the hampering of vessels’ access to Yemeni Red Sea ports and the absence of clear lists of prohibited items.”[ix] Providing an example of the Coalition’s interference with incoming cargo ships, O’brien stated that “a vessel carrying four WFP-procured mobile cranes has arrived in the Red Sea, but has been ordered by Saudi authorities to leave Yemeni waters and is now anchored 15 miles off Yemen’s coast. The vessel is awaiting the Coalition’s approval to berth at the port. These cranes will boost the port’s capacity in handling humanitarian cargo. Two of the cranes will be used exclusively by the U.N. (WFP) and help expedite the timely delivery of vital humanitarian aid supplies.”[x] Unfortunately, even with U.N. involvement and mechanisms in place, the Coalition continues to have the final word on cargo attempting to enter Hodeida port, which is the lifeline of the population handling more than 80 percent of imports into Yemen before the war began.
7. In the update to the U.N. Security Council on 26 January 2017, O’brien also stated that “beyond the direct casualties of the armed conflict, there are also the so-called ‘silent deaths’ of Yemenis that go largely unnoticed and unrecorded. Girls, boys, women and men are dying of hunger and diseases that are easily preventable and treatable. Unfortunately, vital food commodities and medicines cannot be imported easily due to access restrictions imposed by all parties. People with chronic diseases, including high blood pressure and diabetes, who are not receiving life-sustaining treatment due to medical shortages are slowly dying.”[xi]
Statement of Facts and Allegations
8. Mohammad Abdullah Abdulmalik is a 30 year old Yemeni citizen currently living in Sanaa, Yemen. In May 1998, Mohammad underwent a kidney transplant surgery at a medical center in Cairo, Egypt. Mohammad was about 10 years old at the time of the kidney transplant.
9. The cost of the transplant surgery alone was upwards of USD 45,000. With this transplant Mohammad was able to increase his quality of life dramatically during his childhood and thoughout his life as an adult.
10. According to his doctor, all Mohammad had to do was to maintain a strict medication regimen involving mainly two medications that would have to accompany him for the rest of his life. These medications are as follows :
a. Sandimmune (Cyclosporine) – an immunosuppressant in the form of a capsule and taken orally to prevent rejection of a kidney transplant.
b. Rapamune (Sirolimus) – an immunosuppressant in the form of a tablet and taken orally to prevent the rejection of a kidney transplant.
11. During the 20 years after his transplant, Mohammad would obtain these medications in the local market. If they could not be found in the Ministry of Public Health and Population (MOPHP) network of hospitals or the local market, he would simply have the medications brought with someone who was travelling to Sanaa. At times it would be purchased in Jeddah, Saudi Arabia and then flown in to Sana’a International Airport.
12. From the outset of the war and the imposition of the blockade, it became increasingly difficult to find these particular immunosuppressants in the local market. It was nerve-racking each time the family had to seek out the medication. By mid 2016, the effect of the blockade was such that these immunosuppressants were no longer available to hundreds of people with kidney transplants. Many in this patient pool have gone without their medications for more than 6 months, seriously compromising their health and threatening their life with death and at times causing it.
13. Compounding the effect of the blockade is the closure of Sana’a International Airport to commercial flights since 9 August 2016 which has left thousands like Mohammad 1) without the ability to have their medicines flown in and 2) without access to the healthcare they need abroad. According to O’brien, the Coalition’s travel ban on flights to and from Sanaa International Airport has had a “disproportionate impact on Yemen’s civilians and further increases the humanitarian caseload. The lack of in-country specialist medical care means that more than 20,000 Yemenis are unable to seek treatment abroad.”[xii]
14. In November 2016, after nearly 20 years, Mohammad suffered kidney rejection causing him to lose the functioning of his transplanted kidney and is now back on dialysis treatment twice a week. His family is now seeking charitable contributions to cover the costs of the dialysis and to save up for another potential kidney transplant whenever travel is made possible again. According to the MOPHP, there are more than 5000 people who suffer from kidney failure, many with kidney transplants who have suffered a similar fate while others have passed away in silence.
15. Allowing for commercial and humanitarian aid imports to resume and facilitating the unfettered distribution of necessary food, medical and fuel supplies to all locations in Yemen are essential to stemming further rapid increases in humanitarian needs of the Yemeni people. Since the outset of the war, the Coalition’s blockade on imports – as well as damage to port infrastructure due to airstrikes –added to the humanitarian burden by preventing commercial goods from entering including medicines and medical supplies. For example, when their own medical supplies ran out, like bandages and ointments to treat burned victims or medicines like life-saving immunosuppressants, hospitals were not able to procure them from the market as before they were once plentiful but now unavailable due to the blockade.
16. Taken together, the Coalition airstrikes on medical facilities and personnel in addition to the Coalition blockade on food, medicine and fuel are measures deliberately inflicted on the Yemeni people that create conditions of life calculated to bring about their physical destruction or subjugation let alone being a serious interference with their access to healthcare services.
17. An independent international investigation is in order in Yemen to assess and quantify the damages caused to the healthcare sector and the ensuing pain and suffering caused to millions of civilians, so that the people of Yemen are compensated fully and the perpetrators are held to account. Without a repercussion or consequence in place for violators, the right to health and the principle of medical impartiality will continue to be violated with impunity in an ever increasing manner.
18. The blockade on commercial imports, particularly medicines, impedes the Yemeni people’s right to health in violation of Article 25(1) of the Universal Declaration of Human Rights which states that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family.”
19. The comprehensive land, air and sea blockade amounts to a collective reprisal, which is in violation of Article 33 of the Geneva Convention IV. Article 33 states that when it comes to the protection of civilians in times of war, “no protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation…are prohibited.” In the past 22 months, the Saudi Coalition’s imposition of a comprehensive land, air and sea blockade on Yemen contravenes the principles of proportionality, distinction and military necessity.
20. The Coalition airstrikes and threat of airstrikes on factories that locally produce medicines and the complete destruction of health care systems, facilities, and infrastructure includingports, power plants, food and water storage facilities, agricultural fields and the associated distribution networks impede the ability of millions of people in Yemen from receiving the healthcare services they are in dire need of.
21. It is our understanding that the Special Rapporteurs will consider as unilateral coercive measures any measures other than those taken by the Security Council under article 41 of the Charter of the United Nations, which include but are not limited to “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” To qualify the interpretation of Article 41, it is also our understanding that Member States have to comply with U.N. Security Council decisions without adding to or retrenching from their content, pursuant to articles 25, 48(2) and 103 of the Charter.
22. U.N. Security Council Resolutions 2140 and 2216 involve an arms embargo, asset freeze and travel ban on 5 named individuals. They are not U.N. Security Council resolutions sanctioning war on Yemen, nor do they make permissible the imposition of a comprehensive land, air, and sea blockade that blocks regular trade, both import and export, in commercial goods, including food, medical, fuel supplies, and humanitarian aid. Despite the limitations of these resolutions, the Saudi Coalition unilaterally launched a war by land, air and sea citing the resolutions to justify a blockade on millions of Yemenis that has exponentially exacerbated the already dire humanitarian situation in Yemen. While U.N. Security Council Resolution 2216 may have been intended as a “smart” coercive measure designed to place an arms embargo, asset freeze and travel ban on 5 specifically named individuals, the actual use transformed U.N. Security Council Resolution 2216 into a “comprehensive” coercive measure that violates the human rights of millions of Yemenis.
23. Furthermore, the comprehensiveness of the unilateral coercive measures amounts to a collective reprisal which is in violation of Article 33 of the Fourth Geneva Convention. Article 33 states that when it comes to the protection of civilians in times of war, “no protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” In the past 22 months, the Saudi Coalition use of daily airstrikes and its imposition of a comprehensive land, air and sea blockade on the entire population of Yemen in order to deter a group called the “Houthis,” who constitute less than one percent of the population, contravenes the principles of proportionality, distinction and military necessity and serves as a collective punishment of the entire population.
[i] All statements of allegations are based on field work and discussions with local and international NGOs, the various UN organs, the Yemeni Ministry of Public Health and Population, the Yemeni Supreme Board for Drugs and Medical Appliances, the Yemen Red Sea Ports Corporation and the Executive Director of ARWA. Media reports are only cited to show that the statements made herein have been reported by media outlets from various countries across the world.
[iii] Mohammed Aboud, Egypt allegedly sends ground forces into Yemen quagmire, The Middle East Eye, 9 August 2015. http://www.middleeasteye.net/news/egyptians-allegedly-sends-ground-forces-yemen-quagmire-132459953#sthash.qu9yz0EN.dpuf
[iv] Mohammad Mukashaf, Pakistan declines Saudi call for armed support in Yemen fight, Reuters, 10 April 2015. http://www.reuters.com/article/us-yemen-security-idUSKBN0N10LO20150410
[v] Blog, Turkish and Saudi leaders discuss Yemen conflict, The Middle East Eye, 27 March 2015. http://www.middleeasteye.net/news/live-blog-saudi-and-arab-allies-bomb-houthi-positions-yemen-1521000548
[vii] Ishaan Tharoor, Why Senegal is sending troops to help Saudi Arabia in Yemen, The Washington Post, 5 May 2015. https://www.washingtonpost.com/news/worldviews/wp/2015/05/05/why-senegal-is-sending-troops-to-help-saudi-arabia-in-yemen/
[viii] Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Stephen O'Brien Statement to the Security Council on Yemen, 31 October 2016, http://reliefweb.int/report/yemen/under-secretary-general-humanitarian-affairs-and-emergency-relief-coordinator-10 [accessed 26 December 2016]
[ix] Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Stephen O’Brien Statement to the Security Council on Yemen, New York, 26 January 2017, http://reliefweb.int/report/yemen/under-secretary-general-humanitarian-affairs-and-emergency-relief-coordinator-11 [accessed 30 January 2017]