Unilateral Coercive Measures taken by the Saudi-led Coalition (Source) to violate human rights and exacerbate the dire humanitarian situation in Yemen (Target)

Historical Background

1.    On 11 February 2011, millions of Yemenis took to the streets to protest the thirty-three (33) year reign of Mr. Ali Abdullah Saleh’s (Saleh) presidency.  With approximately 63% of the Yemeni population under the age of 24 years old, the popular uprising from the outset was heavily influenced by the youth movement alongside the opposition alliance.  These groups broadly outlined the goals that were announced in February 2011.

2.    On 14 February 2011, the main opposition alliance issued a statement which consisted of six demands: 1) the construction of a non-centralized state for all Yemeni citizens in which justice and equality would reign supreme; 2) admitting that there was an issue in the South and reaching a just resolution to the conflict; 3) bringing a complete stop to the wars in the Saada region; 4) providing for an equitable distribution of resources and the resolution of Yemen’s economic problems in order to achieve fairness and equality in distributing public sector jobs; 5) putting an end to corruption, and creating meritocratic national institutions on national grounds, and not on alliances or cronyism; and 6) making the war against terror a national issue by removing it from the circles of opportunism and marshalling all possible national resources to not only combat terrorism but eliminate it.

3.    On or about November 23, 2011, Saleh signed off on the GCC Initiative which sought to install Mr. Hadi as President of Yemen during the transitional period, in exchange for Mr. Saleh’s immunity from prosecution.  Pursuant to the GCC Initiative, the parties and factions who signed off on the document agreed that Mr. Hadi would be tasked with overseeing and managing the post-revolutionary transition as the transitional president by consensus. This consensus did not have the agreement of influential political factions such as Ansarallah (commonly referred to as “Houthi”) and the Southern Hirak.  Both political factions opted not to sign the GCC Initiative, as Mr. Hadi was 1) an integral part of the previous regime, 2) an accomplice to the crimes committed in the 1994 civil war against civilians living in the southern part of Yemen and 3) the only candidate permitted to be nominated for the transitional presidency as no party or faction could nominate someone else in his stead or alongside him. 

4.   Pursuant to the GCC Initiative, the main objectives of Mr. Hadi’s mission were to issue 1) a draft constitution and 2) to hold general elections within a two year mandate. On or about 21 February 2012, a single candidate election involving Mr. Hadi was held in Yemen.  Thereafter, on 25 February 2012, Mr. Hadi was sworn in as transitional president of Yemen, officially removing Mr. Saleh from power.  During his two year term, Mr. Hadi did not manage to issue a draft constitution nor did he succeed in holding general elections before expiry of his two year term.

5.   On 21 January 2014, the last month before expiry of Mr. Hadi’s two year term, the same political parties and factions that signed off on the GCC Initiative extended his term for another year.

6.   On 26 February 2014, the UN Security Council (UNSC) adopted Resolution 2140 which authorized the creation of a Sanctions Committee with a Panel of Experts that would designate individuals and entities who engage in or provide support for acts that threaten the peace, security and stability of Yemen for an assets freeze and travel ban.  Resolution 2140 defined such acts as the obstruction or undermining of the successful completion of the political transition in Yemen as outlined in the GCC Initiative, among other designation criteria.[2]

7.   On 7 November 2014, the Security Council’s 2140 Sanctions Committee designated three individuals as subject to the assets freeze and travel ban measures outlined, respectively, in paragraphs 11 and 15 of UNSC resolution 2140 (2014), adopted under Chapter VII of the Charter of the United Nations.[3] These individuals included: 1) Mr. Ali Abdullah Saleh, 2) Mr. Abdullah Yahya Alhakim, 3) Mr. Abdulkhaliq Alhouthi.

8.   On 17 January 2015, Mr. Hadi managed to issue a draft constitution towards the last month of his extended term, but it was unpopular and he never managed to hold general elections.  He resigned on January 22, 2015 and did not withdraw his resignation before expiry of his extended term despite calls by the political parties and factions for him to do so.  He then left Sanaa for Aden, where he claimed he was still the President despite both having resigned and having seen his mandate expire. He attempted to move the government to Aden, but when requested to stay in Sanaa and complete the transition for a new transitional president he decided to leave the country after being pursued by the Yemeni army. He arrived in Riyadh, Saudi Arabia, where he allegedly requested that the Saudi Arabian government launch a war on Yemen that would re-install him as Transitional President of Yemen.

9.    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.

10.   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, in addition to the asset freeze and travel ban already in place, on the 3 individuals named by the Sanctions Committee: 1) Mr. Ali Abdullah Saleh, 2) Mr. Abdullah Yahya Alhakim, 3) Mr. Abdulkhaliq Alhouthi.   UNSC Resolution 2216 also added 4) Mr. Abdulmalik Alhouthi, 5) Mr. Ahmed Ali Saleh to the list of sanctioned individuals, subjecting them to an asset freeze, travel ban, and arms embargo.[4]

11.    On 26 April 2015, the former UN Special Envoy to Yemen, Mr. Jamal Benomar, stated that: “When this campaign started, one thing that was significant but went unnoticed is that the Yemenis were close to a deal that would institute power-sharing with all sides, including the Houthis.”[5]

12.   After about two months of war without achieving its stated official objectives and after failing to convince Egypt[6], Pakistan[7] and Turkey[8] 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 sought out foreign troops and mercenaries. After months of stalemate, the number of countries participating in the Coalition increased to include Sudan[9] and Senegal[10], both sending large numbers of troops to Yemen. In addition to hiring Sudanese and Senegalese troops, the Coalition relied and continues to rely heavily on the use of mercenaries, including those from the company formerly known as Blackwater, to continue hostilities.

Statement of Facts and Allegations

13.   According to the Legal Center for Rights and Development, in the first 12 months of the war, 9136 civilians in Yemen were killed by Saudi Coalition airstrikes and shelling, including 5271 men (58%), 1654 women (18%), and 2211 children (24%).  A further 16,690 civilians have been injured, including 12996 men (78%), 1714 women (10%), 1980 children (12%).  A further 2.4 million persons have been internally displaced. Coalition airstrikes also targeted and destroyed tens of thousands of residential homes.  135 power stations were destroyed. 188 water tanks and their distribution networks were targeted and destroyed. 578 food storage facilities were destroyed. 441 food trucks were destroyed. 198 fuel trucks were destroyed. 249 petrol stations were destroyed. 148 livestock and poultry farms were destroyed. 212 factories were destroyed. 378 markets were destroyed. 14 Airports and 11 seaports and harbors were destroyed.  622 bridges and roads were struck and either damaged or destroyed. 250 hospitals and clinics and 630 schools were targeted and completely or partially destroyed by Saudi Coalition airstrikes and shelling.[11]

14.    The civilian deaths and injuries and destruction of Yemen’s civilian infrastructure occurred due to a unilateral decision by Saudi Arabia and members of its Coalition to launch a war on Yemen without a UN mandate.  UN Security Council Resolutions 2140 and 2216 involve an arms embargo, asset freeze and travel ban on 5 named individuals.  They are not UNSC resolutions sanctioning war, and in no way 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 and fuel supplies, and humanitarian aid. 

15.    According to the 2016 Humanitarian Needs Overview[12] released in November 2015, 21.2 million people making up 82 % of the population are now in need of some form of humanitarian assistance – an increase of about 6 million people from pre-war levels.

a.    “Six months of conflict have taken a severe toll on civilians’ lives and basic rights. Since 26 March [2015], health facilities have reported more than 32,200 casualties – many of them civilians. In the same period, OHCHR has verified 8,875 reports of human rights violations – an average of 43 violations every day. Verified incidents of child death or injury from March to September are almost five times higher than 2014 totals.”[13] The casualties reported by the Legal Center for Rights and Development and corroborated by ARWA amount to about 26000 civilians.  The discrepancy is due to stringent guidelines used by the Legal Center for Rights and Development before a casualty is documented and more importantly the data includes civilian casualties only. According to the Legal Center for Rights and Development, in the first 12 months of the war, child deaths and injuries amounted to a total of 4191 children equal to a casualty rate of about 12 children per day.

b.   “Millions of people in Yemen need assistance to ensure their basic survival. An estimated 14.4 million are food insecure (including 7.6 million severely food insecure); 19.3 million lack adequate access to clean water or sanitation [according to ARWA and its partners about 7-10 million due to the war]; and nearly 320,000 children are severely acutely malnourished. Con­flict has exacerbated chronic vulnerabilities in all these sectors.”[14]

c.   “The collapse of basic services in Yemen continues to accelerate. Partners estimate that 14.1 million people lack sufficient access to healthcare; 3 million children and pregnant or lactating women require malnutrition treatment or preventive services; and 1.8 million children have been out of school since mid-March. Solid waste removal has come to a halt in several areas. Service availability is rapidly contracting due to direct impact of confl­ict and insufficient resources to pay salaries or maintain services.”[15]

d.    “Partners estimate that 2.3 million are currently displaced within Yemen – about half of whom are in Aden, Taizz, Hajjah and AlDhale’e governorates – and an additional 121,000 have fled the country. About 2.7 million people now require support to secure shelter or essential household supplies, including IDPs and vulnerable host families. IDPs are currently sheltering in 260 schools, preventing access to education for 13,000 children.”[16] The Legal Center for Rights and Development places the number of internally displaced people at 2.4 million. ARWA’s Executive Director arranged for a site visit to Saada, the province that was declared a military zone in 8 May 2015 by the Saudi Coalition.  According to information surveyed there are about 800,000 displaced civilians from the Saada governorate alone, half of whom are displaced internally and the other half displaced outside the governorate.

e.   “Resuming commercial imports and facilitating the distribution of essential supplies to all locations are essential to stemming further rapid increases in humanitarian needs. Since the crisis began, Coalition restrictions on imports – as well as damage to port infrastructure due to air strikes – have added to the humanitarian burden by preventing or discouraging commercial imports into the country. Over 90 per cent of staple food (such as cereals) in Yemen was imported prior to the crisis, and the country was using an estimated 544,000 metric tons of fuel per month before the crisis. Fuel is essential to distribute food, pump water and run hospital generators, among other critical activities. In September, OCHA estimated that commercial fuel imports fell to just 1 per cent of monthly requirements, and food imports hit their second-lowest level since the crisis began. These restrictions constitute a major driver of shortages and rising prices of basic commodities, which have in turn contributed to crippling the economy. Health facilities continue to close at alarming rates due to shortages of fuel and other basic supplies. Without critical commodities, needs across sectors are rising, and response efforts are being hampered.”[17]

16.   As an unfortunate consequence of the war, there have been reports of the Yemeni army and popular committees imposing crippling restrictions on the entry of life-saving supplies into contested areas where Alqaeda in the Arabian Peninsula (AQAP) is widely known to 1) operate alongside the Saudi Coalition[18] and 2) interfere with the delivery of badly needed humanitarian assistance to civilians. Civilians in Taiz have been recorded to have protested against the obstruction of humanitarian aid by AQAP militants, as the AQAP operatives would simply take most of the humanitarian aid for themselves. These restrictions imposed by the Yemeni military and popular committees have on occasion been overcome through negotiations that helped ensure delivery to civilians in need, but the time lost represents a major burden for civilians living in AQAP controlled territories who are desperately in need of assistance. These obstacles were imposed in Aden earlier this year, and more recently in Taiz, where up to 200,000 people remain essentially cut off from any assistance as of mid-October.

17.    An example of the manner in which the Saudi Coalition deals with the shipments of commercial goods, whether they come in the form of humanitarian assistance or as part of regular trade, is the following summary of audio recordings,[19] obtained by ARWA, between the Saudi Coalition and the Port Authority in Hodeida:

a.    On March 4, 2016, the Saudi-led Coalition contacted the Port Authority in Hodeida (PAH) declaring it an operational strike zone demanding that all ships docked at the Port leave by 8am the next day.

b.    The Saudi-led Coalition requested the names of the ships present in the Port. The PAH responded saying the tankers present at the Port include: Ocean Mark, Reef Elaf, Gas Express, Force One, and Patina.

c.    The Saudi-led Coalition asked whether there were any other ships present at the Port.  The PAH responded in the negative.  Thereafter, the Saudi-led Coalition threatened that if there are other ships present at the dock, the PAH will hold responsibility for what happens to the Port or the ships themselves.  The PAH then asked for the timing of the strikes, to which the Saudi-led Coalition answered that the initial strikes would begin in 20 minutes and that the PAH had until 8:00 A.M. the following day to identify the location of the certain ships including Cruiser, Diyab, Jumana and that if they are present in the Port that PAH will be responsible for the repercussions and that they must leave the Port immediately. The Coalition stated that if any other ships were present at the Port they would be targeted by Saudi Coalition strikes by the air force or navy.

d.    The PAH contacted the Coalition and asked about the duration of the strikes, stating that there were some ships that would leave the Port in the next couple of hours.

e.    The Saudi-led Coalition contacted the PAH and said that there is no time for any of the ships to leave as the strikes had already begun, and that at 8:00 A.M. the following day full fledge strikes would take place targeting all ships warning that Cruiser, Diyab, Jumana are suspect ships and that at 8:00 A.M. they would become legitimate targets to which the PAH would hold responsibility for what ensues.  The PAH denied that those ships were present in the Port.  The Coalition said that it wants all ships to leave so that they can allow authorized ships to enter.  The Coalition asked for the ships that were present once more and the PAH said that it would revert with a list.

18.   The mechanism used to search the ships for weapons is highly suspect: ships are stopped by the Saudi Coalition at will, delayed from entry for days, weeks or months at a time under the pretext of ongoing weapons searches and usually after a coerced bribe, or the ships are entirely denied entry.[20]

Legal Analysis

19.   On 26 September 2014, the Human Rights Council adopted resolution 27/21 and Corr.1 on human rights and unilateral coercive measures. The resolution stresses that unilateral coercive measures and legislation are contrary to international law, international humanitarian law, the Charter and the norms and principles governing peaceful relations among States, and highlights that in the long-term these measures may result in social problems and raise humanitarian concerns in targeted States.

20.   From Human Rights Council resolution 27/21, “one can infer that unilateral coercive measures are measures including, but not limited to, economic and political ones, imposed by States or groups of States to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights with a view to securing some specific change in its policy.”[21]

21.   It is our understanding that the Special Rapporteur 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 UNSC decisions without adding to or retrenching from their content, pursuant to articles 25, 48(2) and 103 of the Charter.

22.   UN Security Council Resolutions 2140 and 2216 involve an arms embargo, asset freeze and travel ban on 5 named individuals.  They are not UNSC 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 27 million Yemenis that has exponentially exacerbated the already dire humanitarian situation in Yemen.  While UNSC 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 UNSC Resolution 2216 into a “comprehensive” coercive measure that violates the human rights of 27 million 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.[22] 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 12 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.

24.   Taken together, the airstrikes and blockade are unilateral Saudi Coalition coercive measures impeding the Yemeni people’s right to self determination and their right to development.  These unilateral coercive measures have created obstacles to trade relations among States and impede the full realization of social and economic development and hinder the well-being of the population in Yemen, with particular consequences for women, children, including adolescents, the elderly and persons with disabilities. Furthermore, the measures taken by the Saudi Coalition are deliberately inflicted on the Yemeni people to create conditions of life calculated to bring about their physical destruction or subjugation.  This conduct appears to rise to the level of crimes of war, genocide and crimes against humanity.

25.   According to Ms. Hilal Elver, the UN Special Rapporteur on the right to food, “the deliberate starvation of civilians in both international and internal armed conflict may constitute a war crime, and could also constitute a crime against humanity in the event of deliberate denial of food and also the deprivation of food sources or supplies…the right to food does not cease in times of conflict, indeed it becomes more crucial as a result of the acute vulnerabilities in which individuals find themselves.”[23]

26.   We highlight the dire humanitarian situation in Yemen that is being exponentially exacerbated by the unilateral decision by the Saudi Coalition to launch a war on Yemen without a UN mandate that involved and continues to involve daily airstrikes and a comprehensive land, air and sea blockade under the false cover of UNSC Resolution 2140 and 2216.

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Citations

[1] All statements of allegations are based on local and international NGOs, the various UN organs and the Executive Director of ARWA.  Media reports are only cited to show that the allegations have been reported by media outlets in various countries across the world.

[2] Security Council Adopts Resolution 2140 (2014), Welcoming Yemen’s Peaceful Transition towards New Constitution, General Elections. 26 February 2014, http://www.un.org/press/en/2014/sc11296.doc.htm

[3] Security Council 2140 Sanctions Committee Designates Three Individuals as Subject to Assets Freeze, Travel Ban, 7 November 2014,  http://www.un.org/press/en/2014/sc11636.doc.htm

[4] Security Council Demands End to Yemen Violence, Adopting Resolution 2216 (2015), with Russian Federation Abstaining, 14 April 2015, http://www.un.org/press/en/2015/sc11859.doc.htm

[5] http://webtv.un.org/watch/jamal-benomar-special-adviser-to-the-secretary-general-on-yemen-security-council-media-stakeout-27-april-2015/4199486038001

[6] 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

[7] 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

[8] 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

[9] Sudan to send 10,000 troops to join Arab forces in Yemen: report, The Sudan Tribune, 19 October 2015. http://www.sudantribune.com/spip.php?article56779

[10] 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/

[11] Legal Center for Rights and Development.

[12] 2016 Humanitarian Needs Overview – Yemen, OCHA, Nov 2015, http://reliefweb.int/sites/reliefweb.int/files/resources/2016_HNO_English_%20FINAL.pdf

[13] Ibid

[14] Ibid

[15] Ibid

[16] Ibid

[17] Ibid

[18] This allegation is based on a thorough review of substantiated information made available to ARWA by contacts in Yemen and information available in the public domain.  Some of the info may be found on http://arwarights.org/terrorfile

[19] ARWA obtained audio recordings of the correspondence between the Saudi Coalition and the Port Authority in Hodeida and has translated it into a summarized written transcript.  Recordings are available on request.

[20] Testimony of ARWA’s Executive Director based on documents available to him and discussions with the Port Authority in Hodeida.

[21] Idriss Jazairy, Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, A/HRC/30/45, 10 August 2015, http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Pages/ListReports.aspx

[22] See Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Art. 33.

[23] Yemen: amid food crisis, UN expert warns of deliberate starvation of civilians, UN News Centre, 11 August 2015. http://www.un.org/apps/news/story.asp?NewsID=51605#.VwvavPkrLIV