Published: 14 April 2020 Author: Stefan Talmon
Since mid-2014, Yemen has been gripped by a devastating civil war between the Houthi rebels and the government of President Abdo Rabbo Mansour Hadi which is backed by a coalition led by Saudi Arabia and the United Arab Emirates. In September 2014, the Houthi rebels captured the capital Sana’a and have been controlling large areas of northern Yemen ever since. In January 2015, the Houthis declared that President Hadi was deposed and established their own government in Sana’a, dissolved parliament and took over the government institutions located in the north. President Hadi fled first to the port city of Aden in the south of the country and later to Saudi Arabia.
The United Nations Security Council strongly deplored the unilateral actions taken by the Houthis and demanded that they “relinquish government and security institutions”. In April 2015, the Security Council reaffirmed “its support for the legitimacy of the President of Yemen, Abdo Rabbo Mansour Hadi” and demanded that the Houthis immediately and unconditionally “cease all actions that are exclusively within the authority of the legitimate Government of Yemen”.
This did not prevent the Houthis prosecuting several members of the Baha’i faith for espionage on behalf of Israel and apostasy, closing all Baha’i institutions and confiscating all assets of the Baha’i in areas under their control. In January 2015 charges were brought against Hamed bin Haydara, a prominent member of the Yemeni Baha’i community who had been arrested in December 2013 under the Hadi Government. In September 2018, charges were brought against 24 other members of the Baha’i faith which prompted the German Federal Government Commissioner of Human Rights Policy and Humanitarian Aid, Bärbel Kofler, to issue the following statement:
“I am deeply concerned by the fact that, since the start of the conflict in Yemen, persecution of political dissidents, members of other religions or alleged dissenters has increased in the parts of the country held by the Houthi rebels. The Baha’i religious minority is also affected.
On 18 September, charges were brought against over 20 Baha’is, most of whom hold administrative functions in the Yemeni Baha’i community. The German Government calls urgently for their release. We will continue to make intensive use of the instruments and channels available to us to seek the prisoners’ release. To this end, we are coordinating closely with our partners in the European Union and human rights organisations.”
On 2 January 2018, a Houthi-run court sentenced Hamed bin Haydara to death – a sentence that was upheld by a Houthi-run appeals court in Sana’a on 22 March 2020. This decision triggered another statement by the Federal Government Commissioner on 25 March 2020 which read as follows:
“I am shocked by the recent news that the death sentence handed down to Baha’i Hamed bin Haydara, who has been imprisoned in Yemen for over six years, has been confirmed by the country’s highest court of appeal, making his execution an imminent possibility. There are doubts as to whether he was given a fair trial in accordance with the standards laid down in international law. Irrespective of this, the death penalty is an inhumane form of punishment which the German Government rejects under all circumstances.
The persecution of the Baha’i on the grounds of their faith must finally come to an end. In continuing to persecute the Baha’i, Yemen is violating the right to freedom of religion which it committed to protecting and respecting when it signed the International Covenant on Civil and Political Rights [ICCPR].”
Independent of the German appeal, on 25 March 2020 the head of the Houthi-led Supreme Political Council ordered the release of Hamed bin Haydara and all detained members of the Baha’i faith.
The statement of the Federal Government Commissioner is noteworthy for two reasons: first, it attributed acts of the Houthi rebels – here, the death sentence handed down by the Houthi-run court of appeal – to the State of Yemen; and, second, it considered the Houthi rebels to be bound by Yemen’s international human rights obligations under the ICCPR. The Federal Government Commissioner was mistaken on both counts.
Although the Houthis exercised government-like functions and territorial control over large parts of Yemen, they were not the Government of Yemen. On the contrary, Germany and the international community continued to recognize the government of President Hadi as the Government of Yemen. In its statements on the situation in Yemen, the Federal Government distinguished between the “internationally recognized Yemeni Government” and the “Yemeni Houthi rebels”. On 27 June 2018, in response to a parliamentary question, the Secretary of State at the Federal Foreign Office spoke of the “internationally recognized government of President Hadi which we also support”.
It is a well-established principle of international law, that no State can be held responsible for the conduct of a rebellious group committed in violation of the authority of the State’s government, where the latter is not guilty of negligence in suppressing the insurrection. The International Law Commission (ILC) pointed out that “[d]iplomatic practice is remarkably consistent in recognizing that the conduct of an insurrectional movement cannot be attributed to the State.” It is only where the insurrectional movement is successful in replacing the previous government that its actions during the struggle can be attributed to the State. This rule has been codified in Article 10 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts (ASR) which provides in the relevant parts:
“1. The conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law.
3. This article is without prejudice to the attribution to a State of any conduct, however related to that of the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.”
The death sentence imposed by the Houthi-run courts cannot be attributed to Yemen under Articles 4 to 9 of the ILC Articles on State Responsibility. Despite its own poor treatment of members of the Baha’i religion, there is also no indication that the internationally recognized Government of President Hadi acknowledged and adopted the sentences as its own. There is thus no question of “Yemen” violating the right to freedom of religion under the ICCPR.
While Yemen has been a party to the ICCPR since 9 May 1987 – the Republic of Yemen succeeding to the treaty obligations of People’s Democratic Republic of Yemen –, the Houthi authorities themselves are not bound by the ICCPR. The fact that the Houthi “Ministry of Foreign Affairs” in Sana’a explicitly referred to the “applicability of human rights treaties ratified by the Government of Yemen” does not make the ICCPR applicable to the Houthi authorities. This statement must be seen against the background that the Houthi authorities considered themselves to be the “Government of Yemen” – a claim not recognized by the international community. Only the government and other organs of a State are bound by the State’s treaty obligations.
There is some, albeit limited, authority in resolutions and statements of the Security Council, General Assembly and other UN bodies that organized armed groups which exercise government-like functions and de facto control over a territory are subject to international human rights law and international humanitarian law. For example, in resolution 2511 (2020) the UN Security Council reaffirmed “the need for all parties to comply with their obligations under international law, including international humanitarian law and international human rights law” and condemned violations of international humanitarian law and violations and abuses of international human rights law “in Houthi-controlled areas”. The UN High Commissioner of Human Rights also stated that the Houthi authorities which “control large swathes of territory, including Sana’a, and exercise government-like function in that territory […] are responsible under international human rights law.”
International human rights obligations of de facto authorities cannot result from treaties, as these authorities themselves cannot become parties to the relevant international human rights treaties and are not bound by State Parties’ treaty obligations due to their lack of status as State organs. They also cannot stem from the fact that the rebel authorities continue to be subject to the law of the State in which they operate, as international treaties create direct obligations only for States, not individuals. Any human rights obligation of non-State actors can thus only be based on customary international law. This must be proved for each individual human right. For the Houthi authorities to have violated the right to freedom of religion as set out in Article 18 of the ICCPR, the Federal Government would have had to show that there is constant and uniform State practice and opinio juris imposing respect for the right to freedom of religion on de facto authorities exercising control over territory. The argument advanced in in the literature that denying such an obligation “would effectively create a protection gap for populations living under the control of non-State entities” is not sufficient to create a binding obligation under customary international law.
Category: State responsibility