Published: 20 April 2020 Authors: Mary Lobo and Stefan Talmon
Since 2005, Yemen has faced unrest following uprisings, most notably by the Houthi rebels in the north. Over the years, the conflict has developed into a full-blown civil war. In September 2014, the Houthis took control of the country’s capital Sana’a, as well as much of the north of the country. Yemeni President Abdo Rabbo Mansour Hadi was made to resign and placed under house arrest. In January 2015, the Houthis appointed a presidential council to replace him. However, in February 2015 Hadi managed to escape to the southern Yemeni port of Aden. He rescinded his resignation and on 24 March 2015, he sent a letter to Saudi Arabia and other Gulf States asking them
“to provide immediate support in every form and take the necessary measures, including military intervention, to protect Yemen and its people from the ongoing Houthi aggression, repel the attack that is expected at any moment on Aden and the other cities of the South, and help Yemen to confront Al-Qaida and Islamic State in Iraq and the Levant.”
The next day, President Hadi was forced to flee Aden to Saudi Arabia when Houthi forces advanced on the city. He has reportedly been residing in Riyadh ever since. In response to President Hadi’s request, on 26 March 2015 a military coalition led by Saudi Arabia commenced airstrikes, later also followed by ground attacks, in Yemen.
Despite the military intervention by Saudi Arabia and other Gulf States, the German Federal Government treated the conflict in Yemen as a non-international armed conflict. On 12 January 2018, a spokesperson for the Federal Government said during the regular press conference:
“I think we have stated on several occasions that, from an international law perspective, the conflict in Yemen does not constitute a war, but an internal armed conflict.”
Furthermore, in response to a parliamentary question on the legal nature of the conflict in Yemen, a Minister of State at the Federal Foreign Office said on 31 January 2018:
“As you all know, the Houthi rebels captured large parts of the country by force. Against this background, in March 2015 the President of the Republic of Yemen asked the Gulf Cooperation Council countries to intervene in order to restore the legitimate order in Yemen. Since then, the military coalition led by Saudi Arabia has intervened on President Hadi’s side. In its resolution 2216 of 14 April 2015, the United Nations Security Council reiterated its support for President Hadi’s legitimacy and noted Hadi’s request for assistance in restoring the legitimate order as well as the military coalition’s positive response. I now come to international law: In terms of international law, the situation in Yemen can thus be seen as a non-international, that is, internal armed conflict, in which the military coalition led by Saudi Arabia supports the government side.”
It is thus the view of the Federal Government that intervention in an existing internal armed conflict on the side of the State’s internationally recognized government does not transform the conflict into an international one.
While intervention on the side of the government does not transform the conflict, this does not mean that there are only two parties to the internal armed conflict. In its resolution 2216 (2015), the UN Security Council clearly differentiated between “all Yemeni parties” and “all parties”. In particular, the Security Council called on “all parties to comply with their obligations under international law, including applicable international humanitarian law and human rights law”. This suggests that the coalition forces were not serving under President Hadi (that is, as part of his “party”) but rather that the coalition States were parties to the conflict in their own right. This also reflects the situation on the ground in Yemen.
In its assessment of the situation in Yemen, the Federal Government placed particular emphasis on the fact that Saudi Arabia and the other Gulf States had been invited to intervene by President Hadi. When asked about the legality of the military attacks by Saudi Arabia in Yemen, the spokesperson for the Federal Foreign Office stated on 27 March 2015:
“You are asking whether what the Saudis are doing [in Yemen] is in accordance with international law. The answer from the viewpoint of the Federal Government is ‘yes’. There has been a request for help addressed to the international community, including Saudi Arabia, from the legitimate, democratically elected government of Yemen in a situation that is extremely threatening for them, for the country and also for the president personally. According to the rules of international law, it is legitimate to provide emergency assistance in response to the request of a legitimate head of State. As far as this is concerned, we have no doubt – at least based on what we know – about the legitimacy of the Saudi intervention in terms of international law.”
This position was reaffirmed in a response to a written parliamentary question on 12 April 2019. Asked about whether the Federal Government agreed with the view of the United Nations that in the conflict in Yemen international humanitarian law has been violated or whether it shared the assessment of the Parliamentary State Secretary Christian Hirte that the war in Yemen was in conformity with international law, the State Secretary at the Federal Ministry for Economic Affairs and Energy stated:
“The request for support against the Houthi rebels of Abed Rabbo Mansur Hadi, who is recognised by the international community as the legitimate President of the Republic of Yemen, has been responded to by a larger group of States led by Saudi Arabia, the so-called ‘Arab Coalition’. This operation is therefore carried out with the consent of the Government of the Republic of Yemen. The Parliamentary State Secretary […] had therefore pointed out that the intervention of this group of States as such does not contravene international law.”
It has long been accepted that States are under a legal obligation to refrain from intervening in an internal armed conflict occurring within the territory of another State, as to do so would interfere with the latter’s territorial sovereignty and political independence. An exception to this principle of non-intervention is the concept of “intervention by invitation”, which applies where the government of a State invites other States to enter their territory for the purpose of intervening in a conflict. The lawfulness of the intervention therefore depends upon the status of the inviting party – it must be competent to speak for the State. Of course, the intervention must also stay within the limits and be aimed at the purposes detailed in the invitation. In resolution 2216 (2015), the UN Security Council not only reaffirmed “its support for the legitimacy of the President of Yemen, Abdo Rabbo Mansour Hadi” but also noted
“the letter dated 24 March 2015 from the Permanent Representative of Yemen, to the United Nations, transmitting a letter from the President of Yemen, in which he informed the President of the Security Council that ‘he has requested from the Cooperation Council for the Arab States of the Gulf and the League of Arab States to immediately provide support, by all necessary means and measures, including military intervention, to protect Yemen and its people from the continuing aggression by the Houthis.’”
While the concept of “intervention by invitation” is generally accepted, its application in practice has often been problematic because of uncertainties about the status of the inviting authority. In particular, invitations extended by “governments” or “presidents” forced into exile during a coup d’état, uprising, revolution, or civil war may be questionable. This is even more the case where the invitation is extended to the State in which a deposed government has found refuge. Considering the events in Yemen and the circumstances in which the invitation was extended to Saudi Arabia and the other Gulf States, questions about the legal status of the Hadi Government and its capacity to extend a valid invitation should have been raised. However, by reaffirming its support for “the legitimacy of the President of Yemen, Abdo Rabbo Mansour Hadi” and by recognizing his government as “the legitimate government of Yemen”, the Security Council saved Germany, and other States, from having to answer some legally, as well as politically, sensitive questions about the status of President Hadi and the legality of the Saudi intervention in Yemen.
The Federal Government’s position with regard to the status of President Hadi and the legality in international law of the Saudi-led intervention in the Yemeni civil war should not be confused with support for the intervention as such, though. Whilst avoiding direct condemnation of Saudi Arabia, the Federal Government has made it clear that it was not in favour of the military operations in Yemen, and that it considered the numerous civilian casualties caused, inter alia, by Saudi airstrikes a “tragedy”.
Category: Armed conflict and international humanitarian law
