Abstract
The right to intervention has taken a centre stage in many internal crises across the globe. The case of Yemen is not different. It started as an internal conflict but seems to have become international armed conflict. This is as a result of the support given to the government by the Saudi-led coalition and the support of the Iran to the Houthi group. International law has made the principle of sovereignty and the codification of non-interference principles entrenched in both positive and customary international law. Yet, there are practical situations of endemic interference in member states’ internal affairs. Thus, this paper analyses the right to intervention in internal conflicts of states under international law in juxtaposition with the situation in Yemen. It found that the interventions in Yemen offend the basic principles of positive and customary international law. Moreover, the interventions so far failed to resolve the conflict but further escalate it, worsened the humanitarian catastrophe and the gross human rights violations in Yemen. The situation has in fact become international armed conflicts with intermediates, making it to be prolonged than necessary. It suggests that strategic steps should be taken to settle the disputes amicably and peacefully in line with the dictate of Article 2(4) of the UN Charter.
1.0 Introduction
Generally, the term intervention in international law implies a situation where a state interferes in another state’s internal affairs or in another’s territory with the military operation in a way that compromises the sovereignty of a state over its people and territory. For many centuries, the right to intervention in domestic affairs has remained highly controversial and debatable. The reason is that sovereignty still remains a very strong concept which defines the global political order. The idea of sovereignty can be traced to the Treaty of Westphalia. This treaty put to an end the 30 Years’ War in the year 1648. It also created a political order in which states were able to territorially exercise exclusive control or sovereignty over their populations and their political affairs. Later on, scholars developed the principle of non-interference which prohibits dabbling into domestic affairs of other states. The purpose was to lessen conflict and provide order in areas that are prone to conflict. This aim was officially codified in the Charter of the United Nations, which clearly proscribes meddling in the internal affairs of member states.
In spite of the significance of the notion of sovereignty and the codification of principles of non-interference in international law, there are practical situations of endemic interference in member states’ internal affairs. After the Cold War, many have argued that where there is a situation of gross violation of human rights in a state, the idea of sovereignty and principles of non-interference should give way. This position seems to have generated a lot of controversy in lots of interventions like Somalia in 1992, the Rwandan genocide in 1994, the Bosnian civil war, and the Kosovo war in1999. Central to this argument is the continued relevance of state sovereignty and non-interference principles in today’s world; the right or obligation of states or international community to intervene in internal crisis; the positive impacts of intervention on states’ peace and stability at reasonable costs. In fact, since 2001, after US invasion of Afghanistan, the issue has been how to make these interventions effective in a way that will not complicate the existing peace and stability of the states.
The situation in Yemen is similar to the above. In March, 2015, Saudi Arabia, in order to halt advances of Houthi through Yemen, in its operation decisive storm, launched Military attack on Yemen. To ensure proper coordination of an effective intervention, Saudi had coalition of countries like Qatar, United Arab Emirates, Kuwait, Bahrain, Jordan, Sudan, Morocco, Egypt and Pakistan. The members of the Gulf Cooperation Council announced the military intervention action was taken in view of the request by Yemen President Hadi to the leaders of Saudi Arabia, Bahrain, Oman, Kuwait and Qatar. The purpose was, according to President Hadi, to protect the people of Yemen from the aggression of Houthi. The US has been providing Military and intelligence support for Saudi-led intervention while Iran has been allegedly supporting Houthi with weapons, financial supports and military advice.
Against the above backdrop, the focus of this paper is to analyse the right of intervention under international law and juxtapose it with the experience in Yemen. To achieve the objective, this study will examine the nature, evolution and development of the power of intervention in internal conflicts of another state. It will analyse the context and naunces of interventions by various parties to the conflict in Yemen. The paper will also examine the legal standing of the Saudi-led intervention as well as the interventions by Iran in support of the Houthis group through the use of force in Yemen. This will be done through exposition and analysis of legal issues generated by the intervention in Yemen.
2.0 Nature of the Right to Intervention in International Law
The right of intervention through the use of force is much debated. can be broadly normative, historical and legal perspective depending on a particular case and the practical changes over time. The beliefs on intervention have changed for many decades. The debate has taken many shapes after the cold war, including what intervention means to US foreign policy. This debate has also been in terms of the conditions for intervention and what is required to have a successful intervention. In Europe and Asia, the perspectives have been on the complex political challenges on how to decide how, where and when to intervene, the implication of the interventions and policy changes to make interventions effective.
Despite the above, the term intervention remains very vague in international law and its restriction to humanitarian intervention does not help in clarifying the concept.. Thus, there are violent and non-violent interventions (such provision of food, clothing and shelter). The latter is better described as humanitarian aid as classical incarnation of intervention involves the use of force or threat of force by another state claiming to be motivated by humanitarian considerations. This approach does not suggest any legal justification for the use of force like self-defence, United Nations Security Council’s authorization, protecting the foreign nationals and military action upon actual consent of the aggrieved state. Nonetheless, humanitarian intervention can be narrowly described as a situation where force is used to prevent endemic and gross violations of human rights especially when the target state is powerless or unwilling to act in the circumstance. This description is also broad as any military use of force can be termed as humanitarian intervention. This is perhaps the reason why the term does not appear in any treaty since its boundary has not been properly delineated.
3.0 Evolution and Development of Intervention
The right of intervention dates back to the Grotius argument that war can be fought in order to punish the wicked and on the oppressed behalf if the punisher’s hands are clean. This is similar to the argument of Alberico Gentili although his was essentially a moral duty rather than a legal one. Emmerich de Vattel later supported the right of intervention to safe the oppressed when the revolt against their oppressed governments but argued that intervention in internal affairs of other states is not allowed in any other circumstance.
Prior to the UN Charter, no established state practice existed in order to justify intervention through the use of force. However, many interventions were supported by opinions of academics who justified humanitarian interventions. Thus, interventions by superpowers in defunct Ottoman Empire (19th century); the then naval battle of Navarino in 1827 in backing the Greek rebellion or in the French occupation of Lebanon and Syria (in 1860–61); US intervention in Cuba during the Cuba’s war with Spain in 1898, were justified on ‘humanitarian grounds’. Nonetheless, history casts serious doubt on these claims of ‘humanitarian interventions’ as there are nexus between these interventions and colonial enterprises and trade interest.
The power of intervention has developed in the modern day due to the establishment of the principle of collective security under the UN Charter. This has significantly changed the framework for imposing or invoking humanitarian intervention. By the provisions of Chapter VII UN Charter, the UN is empowered to intervene in the crisis in any member state for humanitarian purposes among others. For this purpose, states’ reservation under Article 2(7) of the UN Charter does not apply. This power is however limited by Article 39 of the UN Charter to circumstances that amount to threat to peace, act of aggression or breach of peace. In practice, nonetheless, since the 1990s, this act of threat to peace has been interpreted by the UN to cover cases of gross human rights violations. The reason is due to the trans-boundary effects of these violations on refugee flows and regional destabilisation.
The above principle of collective security is different from unilateral humanitarian intervention which connotes situations where one or more states intervene in the crisis of another state. This intervening state may be acting through an international organisation apart from the UN or alone. This is done on their own authority on the basis of ‘humanitarian considerations’. Also, where group of states or certain international organisations intervene in the crisis of another state, it can still be regarded as unilateral intervention since it is not authorised by the UN. Except the right to self-defence, the UN Charter reserves the power of authorisation in the UN. Thus, any intervention without UN authorisation is seen as unilateral in the ultimate sense of the word.
4.0 Context of the Conflict and Nuances of Intervention by Parties in Yemen
At the moment, there are a lot of parallel and overlapping conflicts in Yemen that are non-international in nature. The notable ones are between the Saudi-led coalition, the government and the Houthis; the AQAP and the government, and conflicts between diverse armed groups as well as the Southern movements. It is difficult to regard Iran as being a member of the NIAC. This is due to the fact that the support given to Houthis by Iran is nominal and may not substantially direct the decision making process of the local alliances. There is really no evidence that the military support received by the Houthis from Iran goes beyond training through Hezbollah without any large scale r support to the Houthis.
The Saudi-led coalition is a major party in the conflicts. The coalition involves Bahrain, UAE, Egypt, Morocco, Jordan, Kuwait, Qatar and Sudan. The coalition was formed in March 2015, but with the diplomatic problem of Qatar, in June, 2017, Qatar is no longer treated as a member by this group. The UAE operationally controls the Aden and Mukallah. Saudi Arabia controls the marib. Yemeni forces of about 43, 500 is another major party to the conflicts. The next is United States which has continued to conduct airstrikes and campaign of drones against the AQAD in Yemen. US supplies large scale of weapons to the Saudi-led coalition. It also supports the coalition with intelligence gathering and logistics support. US is not however allowed to participate anymore in the ground troops operation due to the controversial ground operation which took place in Yemen.
Apart from the above, the Saleh aligned forces consists of military, political and tribal networks. The military network has enormously assisted the continued political influence the Saleh alliance. The high-ranking officers appointed by Saleh during his reign as the President are still loyal to him despites Hadi’s reforms to unite the army. The Houthis are also a major player in the conflict in Yemen. They are generally perceived as a Zayd Shia insurgent group with base in Yemen. The name is taken from Hussein Badreddin al-Houthi who was the commander until 2004 when he was killed by the Yemeni Soldiers. The group is also known as Ansar Allah. There were about six rounds of conflicts, otherwise known as six wars, between the Houthis and the Saleh regime between 2004 and 2010. The group was also mainly involved in the 2011 uprising calling for the regime to step down from power. The Yemeni’s uncertain transition and subsequent power vacuum in the country drew more supporters to the Houthis. However, in September, 2014, the group aligned forces with the Saleh forces politically thought with distinct military formations. They both took hold of the capital in 2014. The Houthis rely on the militias for their military support and the disloyal military unit to Hadi.
The Southern Traditional Council, otherwise known as the Southern Movement and the Al-Qaeda in the Arabian Peninsula (AQAP) are the other prominent player in the conflict in Iran.? There are several military units who are loyal to the former President who have joined forces with the Houthis since March, 2015. Hadi appointed Mohsin, Saleh’s former ally, as the Deputy Supreme Commander of the armed forces in order to gather military and local tribes supports. But the full allegiance of Yemeni security forces to Hadi is doubtful. The Saudi and Yemeni groups of the AQAP emerged in 2009. At the time of the uprising, AQAP was internationally recognised as a significant local insurgents interested in territory capturing. Thus, in order to gain acceptance and distinguish itself from the international brand, it established Ansar al-Sharia as a parallel body. The group took advantage of the security breach in 2011 to take over territories like Mukallah in the South although was later chased out of it in 2016. Nonetheless, the group still experiments its local governance system in places like Abyan, Shabwa and hadhramout.
5.0 Legal Status of the Interventions in Yemen under International Law
The UN Charter is most significant legal document relating to interventions in state affairs. The Charter not only creates the notion of sovereign equality of all states, it obliges states to settle disputes by peaceful means and prohibits the use of force. It also entrenches the principle of non-intervention in domestic affairs of member states. These concepts are well developed in the Friendly Relations Declaration (1970). Thus, any intervention not in accordance with this principle or any of its exceptions has no legal backing under international law. The two major exceptions, as contained under Article 51, are the authorization of the UN Security Council and self-defence. Any legal intervention must come within any of these exceptions as use of force is prohibited as a general rule. The question now is what is the scope of Article 2(4) which prohibits the use of force?
Clearly, Article 2(4) precludes ‘the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’. This has been subject to many interpretations. In the Corfu Channel Case, the UK argued that the Article seeks to only restrict the use of force which is targeted at the political independence of a sovereign state or the force which affects the territorial integrity of the state. Thus, where force is used for a limited purpose, these features are not affected. Another argument is that a use of force that is not inconsistent with the purposes of the UN such as human rights promotion is permissible. This narrow interpretation of Article 2(4) has paved way for many claims of intervention for humanitarian purpose. This is argued not to offend any provision since the intervening state withdraws immediately after averting the catastrophe or danger that initially provokes such intervention in the target state. Since its purpose is to avert gross violation of human rights, it promotes the purpose of the UN.
However, the International Court of Justice (ICJ) in the Corfu Channel Case, took a different approach to the above. In this case, the court rejected the British argument that its actions which compulsorily swept Albanian waters for mines did not violate the territorial integrity and sovereignty of Albania. The court declared the UK intervention as a ‘manifestation of a policy of force’. Thus, in the view of the ICJ, the words ‘political independence’, territorial integrity, and ‘in any other manner inconsistent with the purposes of the United Nations’ reinforces the prohibition of the use of force. The purpose is to reassure the less powerful and smaller states that any form of the use of force is prohibited. It actually does not qualify the scope of such prohibition under Article 2(4) of the UN Charter. The UK intervention was then declared as a ‘manifestation of a policy of force’. Similarly, in the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), the ICJ reiterated the unqualified proscription of compulsory intervention, and held that ‘the use of force could not be the appropriate method to monitor or ensure … respect’ for human rights. Thus, where the UN authorises the use of force for perhaps humanitarian purposes (the protecting civilians) in Libya and Côte d’Ivoire in 2011, it establishes that for the humanitarian drive to be realised, armed force will ordinarily have to be targeted against a ruling regime.
Therefore, the narrow interpretation of Article 2 (4) UN Charter is hostile to the purpose and structure of the UN whose purpose is to preserve international peace and security by creating a collective security system. It can therefore be said that any use of force has no basis and it is prohibited under Article 2(4) of the UN Charter. Nevertheless, there are exceptions to this general rule. This will be the focus of this study in the next segment of this paper.
It is clear from the experience in Yemen that that the coalition of Military intervention in Yemen amounts to an unlawful use of force which is against the spirit and letters of Article 2(4) of the UN Charter which obliges the states to settle disputes through peaceful means. This has been clearly interpreted in the ICJ decisions cited above. More so, the Military operations of the intervening states in Yemen have violated the sovereignty of Yemen. Besides, no invitation for use of force will absorb the intervening states the obligation to comply with the provisions of the Charter. Nevertheless, there are exceptions to the general rule. In the same vein, the alleged actions of Iran in supporting the Houthi group with finance and weapons is unlawful and at variance with Article 2(4) of the UN Charter. According to the ICJ in the Nicaragua case, any state that arms, trains, equips, finances or supplies the rebel forces or otherwise supports, encourages, aids military and paramilitary activities in and against a state has breached its obligations under customary international law which imposes a duty not to intervene in the domestic affairs of another state.
It can be said that there is an armed conflict in Yemen. The purpose, according to Abdul-Malik al-Houthi, rebel leader is to occupy and invade Yemen. However, it is doubtful whether it can be regarded as international armed conflict. The reason is that from the proposed test of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Dusko Tadic case, assuming Iran has ‘overall control’ over the Houthi rebels, it can be said that the conflict is international between Yemen and Iran and the rebels will be considered as an agent of Iran. However, it appears Iran’s influence over Houthi does not meet this test. So, effective control test does not arise and no reason for speculation in that regard for the purpose of attributing state responsibility. Thus, since the Saudi-led intervention and that of the Iran have not met the provisions of the general rule, the exceptions thereto will be explored to in order to ascertain whether the intervention can be justified using any of the exceptions.
5.1 Exceptions to Forceful Intervention
The following are the exceptions to the rule against intervention.
(i) UN Security Council Authorization
The use of force by the Military has characterised the ‘UN Security Council-authorized collective humanitarian intervention’ or simply ‘collective humanitarian intervention’ under Chapter VII UN Charter. The Security Council has, consistently in order to maintain and restore international peace and security, since 1990, interpreted ‘threat to the peace’, to include gross violations of human rights within a State, as well as pure internal armed conflicts. In fact, this was the practice’ in 1995. As earlier stated, this argument has been justified on the ground that it may lead to refugee flows or destabilise the region or constitutes a risk on armed reactions by the neighbouring states. Also, apart from these transboundary effects, matters that are purely internal may qualify, according to the Security Council, as threatening the peace of a state notwithstanding the marginal nature of transboundary consequences. In such situations, the Security Council may sanction States to take compulsory measures to halt the violations of human rights and prevent or stop the humanitarian crisis. In this situation, the use of force is described as being ‘humanitarian’ in nature. Also, the intrusion of the global community as represented by the States that heed the call of Security Council is a collective ‘humanitarian intervention.’ Instances of such armed UN-authorized interventions are the crisis in Somalia; Haiti; Rwanda ; Bosnia and Herzegovina ; Albania; and East Timor . The UN Security Council in these cases authorised using ‘all necessary means’ to deliver humanitarian assistance or to monitor the execution of peace agreement. Also, on 17 April 2011, the UN Operation in Côte d’Ivoire (‘UNOCI’) and the French forces supporting it, were instructed by the UN Secretary-General to use force in stopping the use of devastating weapons against the non-combatants in Abidjan by one of the warring parties. This was in conformity with directive of the UN Security Council to the French forces and UNOCI to use ‘all necessary means’ to protect non-combatants who were under looming threat of violence’. Despites the UN assurances that the operations were to protect the civilians as a self-defence, there were evidences to show that the attacks were directed at one of the parties in the conflict. The UN authorization to use excessive force in Libya although was meant to protect the ‘civilians…under threat of attack’ , the force was also directed at one of the parties to the conflict. Thus, the scope of authorization, the covered targets and measures are matters of controversy. This can only be done where the Security Council members do not have a bias against a party but remains neutral. Thus, the use
of force for questionable humanitarian reasons was authorized by the UN Security Council in these circumstances.
Furthermore, there are cases of implicit and retrospective authorisations of intervention by the UN Security Council. The situation in Iraq in 1991 where the UK, France and the US intervened in order to ‘alleviate’ the anguish of Kurdish (and later the Shia) civilians present an example of such intervention. These States mainly relied on UN Security Council Resolution to support their intervening actions. The UN Member States’ authorization to forcefully implement Security Council Resolutions to restore peace and security in the country, subsequent to Iraq’s invasion of Kuwait, had already ceased in line with UN Security Council Resolution 687 of 3 April 1991. They argued that creation of safe havens and no-fly zones was in line with the Security Council Resolution 688. However, this was not adopted under Chapter VII of the UN Charter and did not comprise the shibboleth ‘all necessary means’, which had tacitly sanctioned the use of force just for the limited aim of protecting the civilians Kurds and Shi’ites.
In the same vein, there are cases of arguably implied authorisation. One example is that of the intervention of North Atlantic Treaty Organization (NATO) in Kosovo. This was meant to justify the NATO bombardments on the ground of a UN Security Council Resolution that stated that the Security Council would consider extra measures if the measures provided for in the resolution are ineffective in curbing violence and terrorism. This was construed by France as an implied authorisation by Security Council Resolution when it found that further breaches of measures happened. Also, it has been argued that the UN Security Council covertly and in retrospect gave authorisation to the use of force against the (then) Federal Republic of Yugoslavia (‘FRY’). The reason for this argument is that the UN Security Council did not condemn the NATO’s threat of force which resulted in agreements between the FRY and NATO
and the Organization for Security and Co-operation in Europe (OSCE) on verification in 1998, but rather the Council endorsed the agreements. ,
Similarly, there are cases of retrospective ex post facto Security Council authorisations. This is true of the subsequent ratification of the intervening actions of the Economic Community of West African States (ECOWAS)in Sierra Leone and Liberia the Economic Community of West African States Monitoring Group (‘ECOMOG’) between the period of 1990 and 1999.The Security Council not only commended this action but gave authorisation to it. In the same token, the Security Council approved and authorised French action in the Central African Republic in 1997. Thus, it can be said that the Security Council may retrospectively authorise, or ratify forcible intervening action, even though there are significant reservations, for instance with regard to the target State ‘s right of self-defence against the use of force which is, at the material time, illegal, but retrospectively authorised by the UN Security Council. On the contrary, there is no established ex post facto authorisation given which created an international civilian and military presence in Kosovo after the NATO bombardment. Thus, forcible intervening action which is authorised by the UN Security Council (even if it is ex post facto) under Chapter VII UN Charter, would establish a claim of collective enforcement action which is legal under the UN Charter as a acceptable exception to the proscription of the use of force. It would not be regarded as justified unilateral intervention or support the right to involve in unilateral intervention.
The case of the Yemen presents an interesting scenario of intervention with the use of force. Since 2004, there has been a steady crisis between a government that has international recognition in Yemen and the Houthi rebel group. However, the crisis was only in respect of the Saada Province. In September, 2014, the crisis took a new dimension when the Houthis took over the capital of Yemen, Sanaa and extended their operation to Aden, the States’ second-largest city. In 2015, to stem the tide, Saudi Arabia, together with nine African and Middle Eastern States, intervened through the use of force in Yemen. This coalition has enjoyed the support of the US and the UK in terms of intelligence. The Saudi-led coalition bombed Yemen with the aim of deposing or displacing the rebel group backed by the Iran.
Despite the Saudi-led coalition intervention, the Yemen crisis continued unabated. The situation has worsened with violent airstrike and counter attack by the rival group. Since this intervention, there have been serious human rights violations of the Yemenis. This has resulted into civilian death of about 68% mostly children and women.
There are some resolutions passed by the UN Security Council after the Saudi intervention. What is clear is that there was no UN Security Council’s resolution as at the time Saudi intervened in the crisis. These resolutions are in categories or phases. The first resolution was the one which expressed the strong support of the Council to the steps to be in taken in political transition and it also created sanctions against those individuals and groups that threaten the security, peace and stability of Yemen. There was the one which renewed the Yemen sanctions measures to last until 26th day of February 2017. This resolution also mandated the Panel of experts till March 27, 2017. Another resolution created an arms embargo on the Houthis as well as the forces that were loyal to the former President Ali Abdullah Saleh. Similarly, one resolution renewed the frozen assets and travel ban until 26 day February, 2016 which also extended the mandate of the Panel of Experts until 25th day of March, 2016. There was also the resolution of the Council which in strong terms, condemned the actions of Houthis which dissolved Parliaments on the 6th day of February, 2015 and took over the institutions of government and urged that negotiations be accelerated in order to have a consensus on the political impasse of the region. All these show that there is no UN Security Council’s resolution to support the interventions in Yemen. This exception is thus not in favour of the interventions. The next possible justification for the intervention of the Saudi coilation might be one of self-defence.
(b) Self-Defence by Use of Force
International law vests the right to self-defence in states. It does not make it applicable to local population who are sub-states entity. Thus, self-defence cannot be justified merely by showing, without more, that it was meant to alleviate the sufferings of a local population. Armed attack against a state must have happened to justify self-defence under international law. In many cases, gross human rights violations may not reach the threshold of an ‘armed attack’ within the meaning of Article 51 of the UN Charter. Even in cases where the oppression reaches that threshold of an armed attack, the attack will be against the state population with the inaction or support of state authorities and not against the state. More so, oppression usually starts not in another state but the government of a state against its own people.
In 1971, when India intervened in East Pakistan crisis (now Bangladesh), similar argument was put forwarded but was rejected by the UN General Assembly. India argued that there was ‘civil aggression’ against it as a result of the influx of millions of Bengali refugees that flee Pakistani repression. This ‘civil aggression’ was likened to armed attack. This contention as well as other justifications put forward by India was rejected overwhelmingly by the General Assembly. India was therefore ordered to stop the aggression and withdraw the armed forces.
However, the right to self-defence has been claimed in situations where the intervening state argues that the target state has attacked it in a traditional armed attack way. This is subsumed under Article 51 UN Charter. This was the claim of the Vietnam in order to justify its intervention in Democratic Kampuchea (Cambodia) in 1978. This intervention eventually led to the fall of the violent Khmer Rouge rule. In 1979, Tanzania also put this claim forward in order to justify its intervention using force against Uganda. This intervention later brought to an end the gross human right violation regime of Idi Amin. Tanzania’s reliance was not placed on the humanitarian situation in Uganda but the right to self-defence under the traditional paradigm. Thus, humanitarian consideration is not enough to justify self defence under international law except there is an armed attack on the intervening state or its allies in a case of collective self-defence. Again, the use of self-defence must be for countering the alleged attack but must not be targeted at changing the regime of the target state.
It can be said from the above that the interventions cannot be justified on the ground of self-defence. Since self-defence only applies to states, Saudi Arabia and Iran cannot claim, except very remotely which is not acceptable under international law, that the intervention in Yemen is to protect local population or their nationals abroad. This, as earlier stated, will mean expanding the interpretation of Article 15 of the UN Charter beyond its intended boundary.
(c) Is Unilateral Humanitarian Intervention an Exception under Customary International law?
As earlier argued, humanitarian intervention, without UN Security Council’s authorization, cannot fit in as a justification for intervention through the use of force. Also, armed attack against a state is also necessary to justify intervention on ground of the right to self-defence. In view of this difficulty in justifying states interventions, arguments on new exception under customary international law seem to have emerged. States now want to re-interpret relevant provisions of the UN Charter or introduce the emergence of supervening custom under new customary rule. For instance, the new interpretation might refer to Article 2(4) of the UN Charter’s reference expressly to ‘territorial integrity and political independence’ as an exception to the proscription of the use of force. This interpretation might be claimed to give effect to Articles 108 and 109 of the UN Charter. This will, no doubt, require acceptance by overwhelming majority of the UN member states.
The other argument would be through state practice and opinion iuris as a new rule under customary international law. But can this be couched as an exception to the use of force that has gained the status of jus cogens? This answer is in the negative as it must meet the requirement of a custom which has a jus cogens status or even more exacting than the ones or ordinary custom. In this regard, some states and authors have attempted to invoke this as an evidence of a right to unilateral intervention to put an end to humanitarian crisis or gross human rights violations in a target state. The examples usually relied upon include the 1971 intervention of India in East Pakistan (Bangladesh); the 1978 intervention of Tanzania in Uganda; the 1978 intervention of Vietnam in Democratic Kampuchea; the 1979 intervention of French in the Central African Empire (now the Central African Republic); the interventions of the US in Grenada in 1983 and Panama in 1989; and the interventions of ECOWAS/ECOMOG in Liberia in 1990 and Sierra Leone in 1997. Others include the 1991 to 2003 interventions in Iraq by US, UK, and French (till 1998)in order to ‘protect Kurdish and Shia’; the 1992 interventions in Somalia; the 1994 interventions in Rwanda; the 1999 interventions in East Timor (1999); and the 1999 interventions of NATO in Kosovo.
Thus, in order to show the emergence of new customary law, states laying claims to this must show that their intervention through use of force is lawful on humanitarian ground. In the Military and Paramilitary Activities in and against Nicaragua Case, the ICJ held that no one has the ‘authority to ascribe to States legal views which they do not themselves advance’. It is also argued that states may take actions if they believe in their entitlement to do so and later articulate a justification for their actions. This argument is weak and the practice is itself limited as it would allow recalcitrant states to act unjustly because of their belief in their actions only for their actions to later turn illegal. Hence, no opinio iuris which supports new customary law exception can be inferred on Charter prohibition from state actions which receive UN Security Council’s authorisation. So, some of the examples of interventions cited above, such as ECOWAS/ECOMOG interventions in Liberia and Sierra Leone, have UN Security Council’s authorisation. It is only where there is no UN Security council’s authorisation that a claim can be made to opinio iuris. Even at that, in examples stated above, the states did not justify their actions on any new rule of customary law which allow humanitarian interventions. Many of the intervening states such as India, Tanzania and Vietnam justified their interventions on self-defence to border incursions and other acts or threat of force. This even attracted wide condemnation in international community except Tanzania where international community remained silent.
Moreover, some states stated above relied on implied authorisation by the UN Security Council to ‘justify’ their use of force instead of the ‘new ’customary rule. For instance, forceful creation of the 1991-1992 safe havens and no fly zone in Iraq is argued to receive an implied UN Security Council resolution. Also, forceful imposition of the no-fly zones in 1993 was argued on the right to self-defence by the US against threats of attacks on the coalition zone patrolling aircraft. This argument is also similar to that of the UK. Nonetheless, these arguments too require justifications. France claimed implied authorisation of the US Security Council. In many other instances of the use of force, like the US intervention in Grenada and Panama, US justified its intervention with the fact that it wanted to rescue their nationals abroad, or that it was invited by a legitimate government or to restore democratic governance. These justifications were condemned by the UN General Assembly resolutions. So, humanitarian intervention was never successfully claimed as the only justification for intervention. It was combined with some others like self-defence or UN Security Council’s express or implied authorisation.
The issue now is whether the requisite opinio iuris and state practice can be inferred from NATO’s intervention in the crisis of the then FRY notwithstanding the position of the law prior to 1999 to constitute an exception on humanitarian intervention to the prohibition of the use of force. This may be in the negative. The reason is that some intervening states denied expressly that they see Kosovo Campaign as that which they had the right to act under international law. In fact, in the view of the German Foreign Minister on 16th of October, 1998 before the Federal Parliament, the decision of NATO on air strikes in intervening against the FRY ‘must not become a precedent.’ Also, the major debate in the German Parliament relates to the denial of precedential values to the NATO’s decision on FRY. Similarly, Belgium noted in the UN General Assembly which was held on 26th day of September 1999 that ‘a return to legality’ was achieved by the UN Security Council Resolution 1244 and that it hoped that states would not resort to force without the authorisation of the Security Council as a precedent. US argument is also similar to this and is well connected with the German view. Hence, all these show the absence of any opinio iuris with respect to unilateral right to humanitarian intervention. More so, the non-NATO states overwhelmingly argued that there was no legal basis for Kosovo bombing campaign. Also, half of the member states in the United Nations i.e. the Non-Aligned Movement (NAM) clearly condemned the use of force in intervening against the then FRY. So, in these situations, it is clear that there is no emergence of the right to forceful humanitarian intervention as a rule under customary international law
The argument of some authors is that in all of the examples stated above, the motive for the actions of the intervening states are humanitarian and that notwithstanding the legal justification which the states offer, it can still amount to state practice which favours the right to humanitarian intervention. This perspective is contrary to the clear decision of the ICJ on custom formation in which both state practice and opinio iuris are required. The requirement for opinio iuris is interested in the reason not the motives. The two are obviously different. Moreover, the states which rebut the presumption of opinio iuris in a situations and bases its justification on legal bases shows that it is not of state practice. Again, the fact that many intervening states are extremely reluctant to place reliance on a right of humanitarian intervention shows that it is extremely difficult to find any properly countable opinio iuris upon which a right of humanitarian intervention can be established.
Furthermore, the Post-Kosovo practice in any way does not show any reasonable reliance on a right of humanitarian intervention. The 2011 Libyan crisis applied force after the UN Security Council adopted a resolution to protect the civilians. The Council authorised the use of ‘all necessary means’ by UN Member States to ensure protection for Libyan ‘civilians and civilian populated areas under threat of attack ’ and to ensure enforcement of a no-fly zone. When the time for resolution was approaching, many states such as the UK, US, and NATO Member States jointly, underscored the need for authorisation of the UN Security Council before using any armed force in Libya.
From the above analysis, it crystal clear, that the interventions in Yemen are unilateral interventions. As it is at the moment, unilateral humanitarian interventions, through the use of force, are not supported by the international customary law. There are no state practices and opinio iuris to support this unilateral intervention.
6.0 The Role of UN General Assembly in Authorising Intervention
As earlier stated, unilateral humanitarian intervention has no place in customary international law. Interventions have to be authorised by the UN Security Council or it is for self-defence. However, the absence of UN Security Council authorisation is not a final word in determining the legality of an intervention. The UN General Assembly has a role to play. The reason is that although the UN Security Council has a duty to maintain and restore international peace and security, its exercise of such power is not to the exclusion of the UN General Assembly. There is a procedure laid down by the UN General Assembly which enables it to act if the Security Council cannot act due to the exercise of veto power under the Charter. This procedure is created under the Uniting for Peace Resolution (1950). Thus, in situations where the UN Security Council cannot act, many intending intervening states would prefer to take the matter to the UN General Assembly to authorise the intervention instead of unilateral intervention.
NATO believes that it will stand ready to ‘to act should the UN Security Council be prevented from discharging its purpose of maintaining international peace and security’. This position is problematic. The issue is how the Security Council can be prevented from doing its job. Is it when the Council fails to have the requisite majority or when they simply refused to act? Can it also be as a result of the recalcitrant attitude of a permanent member of the Council? All these require proof. At any rate, the UN General Assembly can get a two-third majority of the members in line with uniting for peace resolution. In Yemen, there is no evidence to show that the interventions receive the support of member states let alone the two-third majority supports of the member states.
7.0 Publicists Conditions for Recourse to Humanitarian Intervention
Undoubtedly, as earlier stated, right to unilateral humanitarian intervention is not grounded in positive international law. Authors have specified conditions that must be fulfilled before recourse can be made to unilateral humanitarian intervention. Where these conditions are fulfilled, according to the publicists, states can unilaterally intervene without the authorisation of the UN Security Council. What is equally important here is how the conditions are to be met and who determines whether such conditions are fulfilled.
Although the conditions are not sacrosanct, and the legality is doubtful, writers have stated the conditions to include: i) there must be a humanitarian ‘emergency’ or ‘disaster’ or ‘crisis’ or ‘catastrophe’ or ‘necessity’ or ‘tragedy’, that is generally related to the prevalent and gross human rights violation of human rights of a population ( or any part thereof) of a State or to the commission of serious international crimes; ii) the territorial State must be unwilling or unable to act in the circumstance; iii) all possible remedies must be exhausted including recourse to the UN Security Council or to the UN General Assembly and all peaceful remedies; iv) the use of force must be limited in scope and in time and to only humanitarian objectives while also respecting the rule of proportionality. The issue here is who determines whether the substantive conditions have been complied with.
The procedure for determining these conditions are significant. Nonetheless, the UN Security Council can objectively determine whether a humanitarian catastrophe amounts to a ‘threat to international peace and security’ under Article 39 UN Charter. This does not resolve how other conditions will be addressed, which may not be easy. It is likely to take away the UN Security Council’s power of actual authorisation of the use of force to merely determining the first substantive condition. Yet, unilateral intervention will not be permitted without any condition because it will clearly contradict the prohibition of the use of force.
Furthermore, many situations of unilateral humanitarian intervention will fail at least a criterion for validity. Yet, states continue to assert a right to intervention without proper articulation on the criteria for such intervention. Hence, states’ responses are sometimes met with silence by international community. Sometimes, the international community condemn these interventions. Despite this, international community may sometimes tolerate or withdraw response depending on how efficient is the breach.
unilateral humanitarian intervention is unknown to positive international law, a law needs to be developed to cater for instances of gross human rights violation. This, in a Canadian initiative, led to the creation of the ‘International Commission on Intervention and State Sovereignty’. This commission created a report on responsibility to protect. The objective is to create a fine balance between effectively responding to humanitarian crisis and maintaining an effective legal framework for responding to such crisis.
Moreover, the report does not also allow unilateral humanitarian intervention under current international law. In fact, in 2005, at the 60th anniversary of the United Nations, the General Assembly re-established the traditional method to the use of force for humanitarian purposes by subjecting it to Chapter VII powers of the Security Council without making reference to a unilateral right of humanitarian intervention. This shows that states are reluctant to recognise a right of humanitarian intervention external to the provisions of the UN Charter as well as the procedures for collective response therein created.
Therefore, undoubtedly, there are gross human rights violations. Humanitarian law has also constituted a matter of public concern, beyond the control of states. The question therefore is what can be done when the UN apparatus refuses or neglects to act in deserving situations to avert humanitarian consequences. However, it appears states are unwilling to commit financial and material; resources needed for such intervention. The states are also reluctant to dabble into some situations coupled with the deficient UN constitutional structure. It also appears apparent from the states’ responses that states are not willing to dispense with the prohibition of the use of force as well as the UN machinery in support of the unilateral right to intervention. States even agree, in rare humanitarian emergency, that despite the significance of intervention, UN is unable to take action. Accordingly, states may accept some humanitarian reflections in order to mitigate the intermittent violation of the prohibition of the use of force and put a limit to their reactions.
The situation in Yemen interventions cannot be said to have met all the conditions laid down by the opinions of the publicists. Assuming without conceding that these conditions were met, the legality of these conditions in view of the stands of positive international law is doubtful. The principle of responsibility to protect would have solved the situation in Yemen. However, based on the above analysis, it still does not cover situations of unilateral intervention through the use of force.
8.0 Conclusion
From the foregoing analysis, the entire international legal architecture supports the prohibition of the use of force except in a manner not inconsistent with the UN Charter. In analysing the legal framework, Article 2(4) and Article 51 of the UN Charter take the centre stage. While the former prohibits the use of force, the latter provides exceptions to situations where disputes can be settled through the use of force. Hence, under international law, the ground for intervention is authorisation of the UN Security Council. The authorisation of the intervention can be implicit and explicit. Some states have been justifying their interventions either on explicit or implicit authorisation of the UN Security Council. The other exception is the right to self-defence. It has been shown this right to use force on ground of self-defence applies to the state not the civil population. It cannot be asserted just to protect, without more, nationals abroad. Similarly, attempts have been made by states and authors to justify interventions under customary international law. However, state practices, and opinio iuris do not support this assertion. The decisions of the ICJ do not also support unilateral intervention in internal crisis. The role of UN General Assembly is also important in authorising intervention with two-third majority of member states. This approach seems better than unilateral intervention. This accounts for reasons why states are very reluctant in endorsing unilateral intervention. Authors also endeavour to establish conditions for unilateral intervention although the legality of these conditions is doubtful.
Thus, the interventions of the Saudi-led coalition and that of the Iran in the Yemen crisis are not in line with principles of international law. The two major interventions in Iran are not legally equivalent. This is because the intervention of Iran is very limited compared to the Saudi-led interventions. Nonetheless, both interventions are not lawful. It is not supported by the general rule under Article 2(4) UN Charter. It does not also come within any of the exceptions in Article 51 of the UN Charter. There was no authorisation by the UN Security Council. It cannot also be justified on the ground of self-defence. It cannot also be supported by customary international law since the state practice and opinio iuris do not favour unilateral interventions. Again, the UN General Assembly has not authorised the interventions. The legality of conditions to justify unilateral interventions established by some authors is doubtful. More so, the interventions have not solved the problem on ground but have instead worsened the human rights violations in Yemen. What started as an internal armed conflict seems to have graduated to international armed conflicts. This is why the conflict is taking more than three years now. It may be prolonged if urgent steps are not taken to settle the disputes amicably and peacefully as envisaged in the UN Charter..
