17 February, 2022
by Sam Biden, Global Leadership Fellow
Yemeni Civil War
The Yemeni civil war has been active since 2014. The conflict initially arose in 2011 through political processes that aimed to bring stability to Yemen following an uprising. This resulted in then President Ali Abdullah Saleh stepping down and granting his powers to his deputy, Abdrabbuh Mansour Hadi. President Hadi would struggle with many aspects of the presidency, including corruption, mass unemployment, food insecurity and violent movements by jihadists and separatists in Southern Yemen. This caused the Houthi movement, a rebellion that fought against prior President Saleh’s government, to seize Sa’ada province and advance South through Yemen. Eventually, President Hadi was forced to flee in 2015 as the Houthi movement continued to push for total control over Yemen. For years the conflict continued to escalate, resulting in the death of former President Saleh in 2017 after he supposedly switched sides to the new Saudi-led coalition against the Houthis. In 2018, a cease-fire was called after a 6-month firefight for control over Yemen’s main city of Hudayah. This is a key area for the importation of food and water for the Yemen population that are most at risk of famine. Most recently, the Houthis have launched multiple, indiscriminate drone and ballistic missile attacks on civilian structures, in violation of the arms embargo imposed upon them.
Current estimations made in 2020 put the death toll at 131,000 from indirect causes, such as lack of food, health services and infrastructure. Direct deaths were estimated to be in the tens of thousands, including over 10,000 children. In 2021 alone, over 600 coalition airstrikes a month and 340 missile and drone attacks committed by Houthi were made. In the most recent UNDP overview of the Yemen crisis, their new predictions raise these figures to over 377,000 deaths, estimating that 40% of all deaths came directly from the conflict, while the remainder are indirect deaths.
Sa’ada Prison Attack
On January 21st, a Houthi-held prison in Sa’ada, northern Yemen, was struck by multiple airstrikes which resulted in 60 deaths and over 200 injuries. The facility was believed to have been holding 1,300 pre-trial detainees and 700 migrants at the time of the attack. The attack comes after the Houthi were accused of a series of attacks in the United Arab Emirates the prior Monday, including an attack on a construction project at the Abu Dhabi airport.
The extent of the attack sent shockwaves through those who reported on the raids. OHCHR Spokesperson Rubert Colville described the incident as painting a “chaotic and desperate picture”. Colville called upon the Saudi-led coalition to conduct an independent and impartial investigation into the attack, emphasising the legal ramifications for breaches of humanitarian law. The accused Saudi-led coalition to whom the Houthi are opposed made a public statement of their intent to investigate the attack. The investigation has so far fallen short of amicable as the Saudi-led coalition claimed not only that the Sa’ada facility was not a protected area, but also that no agreement as to its protective status had been made. Information regarding its official status through the OCHA is yet to be publicly addressed.
Current investigations are being done by the OHCHR. So far, it has revealed a key element that unravels the potential for serious violations of the laws of war. A statement made by Rupert Colville claimed that upon a recent visit to the facility, they found no indication that previous use of the site for military purposes was still continuing. This creates legal ramifications to be discussed shortly. Most importantly, it is important to gauge historical violations of humanitarian law in Yemen and assess whether these findings ring true to the current Sa’ada attack.
Humanitarian Law Implications
The measurability of legality present with the Sa’ada attack is well documented and absolute in its expression. There are 6 key areas that must be looked at in relation to this attack, these are all defined rules via the ICRC and are legislatively traceable to the Geneva Convention 1949 (Additional Protocol I).
- ICRC Rule 1 – Article 48: All parties shall distinguish between civilians and combatants at all times. This applies to distinguishing military from civilian objectives as well.
- ICRC Rule 9 – Article 51: an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects and an attack that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.
- ICRC Rule 13 – Article 52: Attacks must be strictly limited to military objectives. Military objectives are defined as when their nature, location, purpose or use would make an effective contribution towards military action. When in doubt of this nature, the objectives are presumed to be civilian.
- ICRC Rule 15 – Article 57: Parties shall take all feasible precautions in the means and methods of attack to avoid and minimize civilian loss of life, to ensure civilian objects are not attacked and to refrain from any attack that is disproportionate to a concrete military objective. Effective warning shall be given of attacks which may affect the civilian population.
- ICRC Rule 22 – Article 58: Parties shall endeavour to remove the civilian population and objects from the vicinity of military objectives, avoid locating military objectives in/near densely populated areas and take precautions to protect the civilian population, individuals and civilian objects from the dangers of military operations.
- ICRC Rule 37 – Article 59: Non-defended localities are defined as having; all combatants, as well as mobile weapons and mobile military equipment, removed, no hostile use of fixed military installations or establishments, no acts of hostility on behalf of the population or authorities and no activities in support of military operations.
All of these rules of humanitarian law have been violated by the attacker of Sa’ada prison. The rules of humanitarian law apply whether between violent groups that fight against each other or the state (non-international armed conflict) or whether between two or more states (international armed conflict).
The attack was indiscriminate, with no precautions taken to either distinguish between civilians or combatants or to establish the true nature of the facility. The notion that the prison was a military objective was based on out-of-date intelligence. Even if the attacker was unsure of the nature of operations regarding the prison, this element of doubt is taken into account by Article 52. With this element of doubt present, the attack on the building is considered unlawful regardless of whether its nature existed within the sole definition of a military objective under Article 52. This is amplified further given the public knowledge of the nature of some operations at the prison. It is clear people were being detained there for a variety of reasons. Some were on trial for crimes while some were migrants captured in unfortunate circumstances. From this, any reasonable doubt as to the true nature of the facility cannot be absolutely established. The attacker would have to be able to accurately account for all imprisoned and devise a plan to minimize any injury, damage to civilian objects or loss to civilian life. This cannot be achieved when a set of three airstrikes were launched with no precautions or feasible measures to take these obligations into account.
The level of distinction between civilians and military objectives exists in the same conceptual plane as a non-defended locality. Following Rupert Colville’s report, they found no evidence that previous military activity was continuing at Sa’ada prison. This does not mean that all of the requirements of Article 59 have been met, but this is irrelevant. Even if none of the requirements had been met, due and feasible precautions regarding the minimizing of loss to civilian life, damage to civilian objects and effective warning under Articles 57 and 58 would still conclude the attack as a violation of humanitarian law.
Additional current findings
Human Rights Watch published their 2021 report on Yemen, highlighting significant concerns that apply to the current Sa’ada attack. Almost a third of all airstrikes initiated by the Saudi-led coalition hit civilian objects. These included schools, hospitals, markets, mosques and bridges. Both Houthi and the Saudi-led coalition were involved in indiscriminate shelling and mortaring in heavily populated areas such as Marib, Taizz and Hodeidah. Restricted weaponry such as landmines was used by Houthi in civilian areas. These types of anti-personnel mines are disguised as objects no one looks twice at, meaning the risk of major civilian injury is dramatically amplified.
With the findings of HRW in mind, the Group of Experts that conducted and produced their own research on behalf of OHCHR for attacks in Yemen, pose similar findings. They found that between 2014 and 2020, all parties to the current Yemen conflict (Southern Transitional Council, Saudi Government, UAE Government and Yemen Government) had committed continual human rights violations. These violations included; arbitrary deprivation of life, enforced disappearances, sexual violence, torture, cruel or inhuman or degrading treatment and violations of social, cultural and political rights.
Regarding humanitarian law, the Group of Experts is conclusive in this aspect as well. Individuals for the Saudi-led coalition are responsible for acts that may amount to war crimes. These include indirect, indiscriminate attacks, indiscriminate attacks including the use of landmines by de facto authorities and inflicting torture, inhuman or degrading treatment, sexual violence, outrages upon personal dignity, rape, the impeding of humanitarian aid and the denial of a fair trial.
1. Coalition airstrikes
Four primary airstrikes have been investigated by the OHCHR. The first three targets were located in the Al-Sawamil region, Mustaba and Hajjah Governorate. Collectively, the three airstrikes caused 12 deaths of which 6 were children, and 16 people were injured, the Saudi-led coalition did not make a public statement. The Group of Experts could not find any evidence that would indicate any military activity at the attacked site or within the vicinity. Another attack just 20 days later on the Dhamar Community College by the Saudi-led coalition took the lives of 134 men and injured over 40 more. The site was being used as an unofficial detention centre by the Houthi.
The Joint Incidents Assessment Team (JIAT), an investigative body for the coalition concluded that because of the presence of military vehicles and weaponry at the site that in fact, the site fell under the definition of a military target. They supported this by asserting that the facility was also not on a ‘no-strike’ list and therefore was a valid target. This was shut down by the Group of Experts, as per international humanitarian law, the presence of military activity is not the sole reason to launch an attack. Precautions detailed in Articles 48, 52, 57 and 58 are absolute and do not specify that simply because there is a military presence, this means the site is legally a military objective. JIATs reasoning is similar to the claims made regarding the notion that since Sa’ada prison was not on a protected list, it had no protected status. This argument is a fallacy in relation to the true meaning of the first Additional protocol.
Shelling can have the same wide impacts as airstrikes. They have a wider damage radius and are therefore considered an ‘indirect’ method of attack. In April 2020, Houthi fired several mortars towards the Central Prison in Ta’izz city. The shell killed 6 women, 5 inmates and a guard inside the prison while a second shell injured a man outside the prison. The prison was requested to be returned under the control of the Office of Social Affairs and Labour, yet instead, it was used to house military equipment. Prior to this attack, several other rounds of shelling had fallen upon the prison. Further attacks on the Al-Raqw market in 2019 caused the deaths of 17 civilians and injured 12 others. The market was a gathering place and informal hub for Yemenis, Ethiopians and Somalis. Two other attacks on the market in November and December of the same year took the total number of civilian casualties to 89.
The JIAT only addressed the final attack on Al-Raqw when asked for a statement. They claimed the attack was in response to the armed fire being made against the coalition, and that the shelling was the only reasonable means of response they had. The Group of Experts quickly concluded that all incidents amounted to indiscriminate attacks and were, therefore, violations of international humanitarian law. They asserted that no feasible precautions were taken to minimise civilian casualties and therefore customary international humanitarian law was violated.
The attacks in Sa’ada are a sad reiteration of the disregard for civilian life in the ongoing conflict. The attack was one of many committed over the last 8 years that demonstrates how fast to act both sides to the conflict are in their ignorance towards their humanitarian obligations. Current investigations into the attacks are almost entirely being led by the Saudi coalition, resulting in what feels like a hollow effort to protect current and future victims from further harm. Due precautions are not being taken when ensuring the safety of the civilian population, this is then exacerbated by misconstrued interpretations of what defines a military objective. Both sides need to form some form of basic agreement that binds them to obligations they owe to the people of Yemen. These should reflect the mitigation of civilian injuries and death, establishment of safe zones and humanitarian zones to protect those most at risk, allowance of the Red Cross and other organisations to provide aid and finally to very clearly define where military objectives are. This should be handled through the most genuine consideration for the future of the state all together, rather than small victories at the cost of innocent lives.