In all the media coverage surrounding the Saudi Arabian-led bombing campaign in Yemen in recent days, few have stopped to ask a fundamental question: Is it legal?
A week ago, a Saudi-led coalition of countries began bombing Yemen to depose an Iranian-backed rebel group that seized control of the capital Sana’a late last year. The bombings have killed hundreds of people, including many civilians.
The Saudi justification for the attack rested on the claim that it was coming to the aid of a neighbour in need after a specific request from its governing authority – which is legal under international law.
Yemen’s President Abdu Rabu Mansour Hadi had specifically called for an intervention as rebels from the Houthi movement threatened his rule.
But having overstayed his term in office, resigned once and even fled the country, Hadi’s legitimacy as ruler is shaky, legal experts say, placing the Saudi military action in murky legal territory.
For some observers, it is just the latest in a growing list of military action that evades scrutiny, despite a high civilian death toll.
An unusual case
There are plenty of examples of governments requesting support for a military operation on their territory – most recently when Iraq requested American help in fighting the so-called Islamic State. These types of interventions are considered legal under international law.
But Yemen’s case is far less clear-cut. Hadi had long lost control of large parts of the country. The Houthi rebels – a northern Zaidi sect that had been in on-and-off conflict with the government for years – seized control of Sana’a in September, and the majority of the army was no longer responsive to Hadi.
Hadi’s democratic mandate was also weak. Following Arab Spring protests that drove long-time ruler Ali Abdullah Saleh out of power, he won a 2012 election in which he was the only candidate. His term was due to end with full democratic elections in February 2014. Yet it was extended for a further year without a poll.
In January, even before the formal end of his term, Hadi announced his resignation after the Houthis blockaded his palace.
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After later escaping Sana’a for the port city of Aden, he reversed his position, saying it was made under duress. Then, shortly before calling for the attack, he fled the country for Saudi Arabia, where he is now based.
So did he have the authority to call for intervention?
Who is in control?
“It’s actually really tricky to figure out who is the legitimate leader,” said Nathalie Weizmann, senior director of Columbia Law School's Counterterrorism and Human Rights Project. “The fact that he resigned could make his consent invalid."
“If Hadi were still in Sana’a and had a relatively modest rebellion on his hands, there is little doubt he could consent to have other states come in and help him. That is not particularly controversial in international law,” added Ashley Deeks, associate professor at the University of Virginia Law School and a former assistant legal adviser at the US Department of State.
“But it does get increasingly controversial the less control the requester has. At this point, the country seems to have spun out of control,” she told IRIN.
Stuart Casey-Maslen, senior researcher in international law at the University of Pretoria, goes a step further. For him, the ruling authority is “whoever controls the state - represented by territory and the armed forces... In this case that would be [the Houthis].”
But international recognition remains an important broker in geopolitics.
“The fact that most of the world is still referring to Hadi as the president is an indication of the legitimacy of his invitation,” Weizmann, author of a recent article discussing the legality of the Saudi intervention, ultimately concluded.
Legitimacy and justification
The manner in which Hadi justified the invasion only muddies waters further. In a letter to the UN Security Council requesting military intervention, he invoked Article 51 of the UN Charter – which gives countries the right to engage in self-defence, including collective self-defence, when under attack. But Article 51 governs international conflicts, not domestic disputes.
“Article 51 is relevant when a state is using force either in another state’s territory or in response to an attack from outside. That is not the case here,” argued Deeks, author of a recent blog about the Saudi justification for war. “This is the government of Yemen in a conflict with a significant rebel group inside the country - there are no Article 51 issues.”
There are other routes by which Saudi Arabia could legally justify the intervention, but they appear to be non-starters.
The coalition could request a resolution from the 15-member UN Security Council permitting all necessary actions. No such ruling has been passed or appears imminent; and in any case, Russia, a permanent member of the UNSC, would likely veto any such instructions as it opposes the Saudi intervention.
An alternative would be for Saudi Arabia or other neighbouring states to argue that the Houthi takeover presents an imminent threat to their own security – making a defensive attack justifiable under Article 51.
Fernando Carvajal, Yemen analyst at the University of Exeter in the UK, said Saudi Arabia has tried to present the war in exactly this manner. “Saudi Arabia has framed this conflict as a sub-regional threat to its own security.”
But he and others say the Houthi aggression, as yet, does not represent a legitimate enough threat to neighbouring countries to justify intervention, especially as other techniques such as sanctions or mediation have not yet been tried.
As such, the legality of the Saudi campaign is likely to continue to rely upon the questionable legitimacy of an exiled ruler.
Responsibilities, no matter what
While the legal justification for the war may be in dispute, the responsibility of those involved to protect civilians isn’t.
Here, too, the Saudi-led coalition is running into allegations of illegality.
Several legal experts IRIN spoke to expressed concern that International Humanitarian Law (IHL) had been violated.
On Monday, a coalition airstrike allegedly struck a camp for displaced Yemenis. Human Rights Watch said the attack “heightened concerns” that Saudi Arabia and its partners were not sufficiently protecting civilians.
“The policy needs to come from the top - from Saudi political and military leadership - that protecting civilians is a priority. That then stretches down the chain of command,” said Sahr Muhammedally, a Middle East expert at the Center for Civilians in Conflict. “These countries may well be well-equipped but they may not have the best guidance and training on protecting civilians.”
The United States is providing logistical support to the bombing campaign, and should use this position to push Saudi Arabia to respect IHL, Muhammedally added.
Casey-Maslen cautioned that such killings were not necessarily violations of IHL if they could be proven to be a “genuine mistake”. Prosecutions of IHL violations are notoriously difficult.