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Responsibility to Protect: in Light of Yemen Case
A.Alattrash
1
Table of Contents
List of Abbreviations ......................................... 2
I. Introduction ................................................. 3
II. Implications for Responsibility to Protect
in Yemen .......................................................... 3
III. Constraints ................................................ 6
1. Missing Elements ........................................... 6
2. Collective Responsibility v. Unilateral Action
........................................................................... 7
IV. Responsibility to Protect, de lege ferenda,
in Yemen .......................................................... 8
V. Conclusions ................................................. 9
VI. Bibliography ........................................... 10
Responsibility to Protect: in Light of Yemen Case
A.Alattrash
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List of Abbreviations
AP Additional Protocol
EU European Union.
HRC Human Rights Committee
Res. Resolution
CRC Convention on the Rights of Child.
G.C. Geneva Convention.
OP. Optional Protocol
IHL International Humanitarian law
ICL International criminal law
UNSC United Nations Security Council
I.L.O International Labour Organisation
UPR Universal Periodic Review
K.S.A Kingdom of Saudi Arabia
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant Economic Social and Cultural
Rights
ICISS Iinternational Commission on Intervention and State
Sovereignty
W.S.D World Summit Document
UNSG United Nations Secretary General
R2P Responsibility to Protect
RtoP Responsibility to Protect
Responsibility to Protect: in Light of Yemen Case
A.Alattrash
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I. Introduction
Although the concept of "Right to Intervention", "Right to
Protect", or "Responsibility to Protect", here RtoP, is relatively
new emerging concept, it has endured much debate and
discussion between caller-for and caller-against. In, Libya,
Syria, Sudan, Iraq, and many other States, debate regarding a
necessary intervention to protect civilians and prevent sever
harm has been the trend talk in UN wholes. However, cases such
as Syria, Libya, and Iraq were of more obvious character
because of the sever and bold nature of the crimes atrocities
taking place, such as war crimes, crimes against humanity, and
mass killings.
In Yemen, since the uprisings of 2011, many changes took a
place. This paper, discusses the main elements of RtoP and its
consequences, in light of situation in Yemen. An elaboration of
implications and factors triggering the need for civilian
protection and harm prevention is ,then, set in context of the UN
perception of the principle and International Commission on
Intervention and State Sovereignty ICISS perception. In the
body of the paper, an analysis of the con's and limits of
application of the principle in Yemen is set, to determine the
level of legitimacy of the actions took place under the broad
umbrella of controversy of the principle. A more broad and
general discussion is brought at the final stage; stirring influence
and interaction between the principle and the Yemeni situation,
in addition to potential crystallizing of the principle of RtoP into
legal norm
1
.
1
RtoP: Secretary General Koffi Annan called it "Concept", Special Advisor
of Secretary General for RtoP, Jennifer Welsh called it " principle" It has no
legally binding effect so it is not a norm.
Responsibility to Protect: in Light of Yemen Case
A.Alattrash
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Interpretations of the international instruments provisions, in
this paper, are based on the General Rules of Interpretation set
forth in Vienna Convention on the Law of Treaties.
II. Implications for Responsibility to Protect in Yemen
Before start, the case to be analyzed is an example of the other-
use of the immature concept "Responsibility to Protect"
2
. As
situation started to escalate between Houthi-Rebels and the
Government, UN and it's organizations saved no efforts to warn
and call for a stop of hostilities on behalf of both parties
3
. In
2011, Security Council UNSC imposed -gray- resolution
regarding the situation in Yemen
4
. The language used in the
resolution was derived from the first pillar of RtoP, it hasn't
,however, mentioned any military intervention. By "Recalling
the Yemeni Government’s primary responsibility to protect its
population", the UNSC has explicitly linked the situation in
Yemen to the RtoP, at least the Yemeni Government RtoP. In
the same resolution, the Council welcomed "the statement by the
Ministerial Council of the Gulf Cooperation Council on 23
September 2011 which called for the immediate signing by
President Saleh", which formed a pre-consensus of the
legitimacy of one side of the conflict, at least in eyes of the
Saudi Government. Consequently, Saudi Arabia saw RtoP with
similar terms to UN's and different perspectives. Saudi
government, also, started action of implementing the second
pillar of RtoP by trying to prevent harm from vulnerable
2
see BRICS View on RtoP Jeremy Sarkin. "Is the Responsibility to Protect
an Accepted Norm in International Law in the post-Libya Era?". Groningen
Journal of International Law. Vol. 1, no. 0: Responsibility to ProtectP.23.
3
Report of the United Nations High Commissioner for Human Rights.
Situation of human rights in Yemen. A/HRC/21/37. 5th September.2012
4
UN Security Council, Security Council resolution 2014 (2011) [on the
situation in Yemen], 21 October 2011, S/RES/2014(2011)
Responsibility to Protect: in Light of Yemen Case
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civilians
5
, however, failed, resulting in what Adama Dieng, UN
Special Adviser on the Prevention of Genocide, and Jennifer
Welsh, UN Special Adviser on the Responsibility to Protect
described as " We have been struck by the virtual silence of the
international community on the impact of the conflict on
civilians in Yemen, notably the United Nations Security
Council"
6
. In 2015, "This is a war to protect the people of
Yemen and defend its legitimate government." said A'del
Aljuber
7
in a response to a question from BBC reporter, and in
the same year, General Ahmad Aseri stated that "Mansur has the
responsibility to protect Yemen and he called for help."
8
.
Human Rights Council Report
9
, in 2012 (before military
intervention), were pretty positive except for some
investigations of past violations and due process rights for
political detainees. The United Nations High Commissioner for
Human Rights described the situation to be "positive political
developments, most notably the election of a President and the
ongoing preparations for the national dialogue, which should
form the basis for a democratic process leading to the
establishment of the Constitution". In 2016, after the military
intervention, the council issued a sad report about the situation
in Yemen
10
, the Commissioner stated that "the perpetuation of
the conflict and its consequences on the population in Yemen
are devastating.".
5
see "Yemeni's Abed Rabbo Mansour Hadi arrives in Saudi capital". CBC
News. 26 March 2015. Retrieved 26 March 2015. and "Yemeni leader Hadi
leaves country as Saudi Arabia keeps up air strikes" Reuters. 26 March 2015.
6
Adama Dieng, UN Special Adviser on the Prevention of Genocide, Jennifer
Welsh, UN Special Adviser on the Responsibility to Protect "Fulfilling our
Responsibility to Protect in Yemen Report"14th August 2015.
7
Saudi-Arabia's ambassador to the United States, Adel al-Jubeir
8
Los Angeles Times. September 2015.
9
Report of the United Nations High Commissioner for Human Rights.
Situation of human rights in Yemen. A/HRC/21/37. 5th September.2012
10
Report of the United Nations High Commissioner for Human Rights.
Situation of human rights in Yemen. A/HRC/33/38. 4 August 2016
Responsibility to Protect: in Light of Yemen Case
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Having that said, the situation in Yemen has two dimensions
related to RtoP; first, it is the implications for RtoP before Saudi
Arabia and it's alliance (Egypt, Bahrain , Qatar, Jordan, and
United Arab Emirates UAE) intervened, and the second is the
implications for RtoP, after the intervention. To analyze this
case in light of ICISS perception, it is important to view the
understanding of the principle R2P, which derives from the
principle of sovereignty that entails responsibility on the
sovereign government to protect its civilians from mass
violence
11
. In its Report, ICISS viewed the issue of RtoP as did
Francis Deng
12
years before. The Commission divided the
principle into three pillars; responsibility to prevent, to react,
and to rebuild. It also elaborated a guideline-like report setting
rules and criteria among which it has stressed that military
intervention shall be as a "last resort" and "only in extreme
cases". The criteria set forth to fulfil before taking any action of
intervention is called the Six Criteria for Military Intervention,
which includes "right authority, just cause, right intention, last
resort, proportional means and reasonable prospects." and it is
accompanied with other criteria and principles that apply before
taking any military action, such as principle of non-intervention.
An observer of the Committee's policy would notice, however,
that the Committee has exhausted all means to stress the
importance of early warnings, short of military action, and other
precautionary measures in order to prevent occurrence of cases
like Yemen
13
. Arguments regarding ius ad bellum and the
legitimacy of the military intervention are pretty strict -if
followed-, but although they form a guideline of what to do and
11
UN General Assembly, Implementing the responsibility to protect : report
of the Secretary-General
12
Deng, Francis Mading, 1938-Sovereignty as responsibility : conflict
management in Africa, Francis M. Deng
13
see Report of ICISS "The Responsibility to Protect". THE
RESPONSIBILITY TO REACT . Other Precautionary Criteria
Responsibility to Protect: in Light of Yemen Case
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what is allowed to be established under RtoP umbrella, they do
not state what is forbidden, and what is Not covered under the
principle.
Dropping this understanding and criteria on the case of Yemen,
strictu sensu, we find many elements that are missing (to be
discussed in the coming section). Also, the Saudi lead Alliance
intervention has taken only some of what was preferable of the
ICISS policy and preferable of the World Summit Document to
form one sort of RtoP that yields protection to State's interests.
The military intervention attributable ,mainly, to Saudi Arabia
and its alliance, tends to use arguments set forth by the UN
framework on RtoP and the World Summit Document
perception of the principle more than it does to ICISS perception
of the principle. In view of the Committee, many procedural
steps are rather put for states to stick to, in order to be legitimate
intervention rather violation of sovereignty principle. In view of
the UN Organizations, and the passing Secretary Generals, RtoP
derives from the responsibility of sovereign States to protect its
civilians from war crimes, crimes against humanity, and
genocides. When the competent authority is not able or not
welling to protect, this entails the collective responsibility of the
international community to protect the civilians from the sever
harm it is suffering
14
. Looking back at similar cases, such as
Libya Case or as Gareth Evans described it "textbook of
RtoP"
15
, we find many differences that triggers the threshold of
this case in comparison. For example, a collective nature of
condiments of the crimes in Libya was established by almost all
international community
16
, the language used by security
council to use its competences under chapter VII, the NATO
strikes -even without a Security Council resolution-. These
14
UN General Assembly, 2005 World Summit Outcome : resolution /
adopted by the General Assembly, 24 October 2005, A/RES/60/1
15
Gareth Evans, ‘The RtoP Balance Sheet after Libya’, 2 September 2011.
16
The Guardian, ‘Barack Obama defends US military intervention in Libya’,
29 March 2011.
Responsibility to Protect: in Light of Yemen Case
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examples form a rough picture of what threshold is to be
reached before taking any measure of military intervention.
III. Constraints
According to the arguments used by General Aseri, the
intervention in Yemen was because of the fact that the
"legitimate" Government in Yemen is unable to protect its
citizens and thus seek support from third party state, and the
Yemeni government has requested outer help from Saudi Arabia
-directly- through its elected president Saleh
17
. Although, ICISS
has made a whole report regarding the appropriate
implementation of the principle, Saudi Arabia and the alliance
have used only ICISS words regarding the intervention
principle, which stresses that “[w]here a population is suffering
serious harm, ... and the state in question is unwilling or unable
to halt.., the principle of non-intervention yields to the
international responsibility to protect". In this section, I will try
to define limitations of the Yemeni case and causes behind it's
exclusion from the application of the principle.
1. Missing Elements
The differences between ICISS and W.S.D. perception of the
principle of RtoP falls in the nature of crimes committed, nature
of reaction and prevention, and the level of threshold that
triggers principle of intervention (military). As mentioned
before, W.S.D and UN view of nature of crimes is limited to the
ones regulated by Roma Statute
18
, which are; crimes against
humanity, war crimes, and genocide. In this regard, the Saudi
lead collation has chosen to apply the ICISS view, which
provides a broader scope of crimes and atrocities that has to fall
17
Global Center for the Responsibility to Protect. Populations at
Risk Current Crisis. 17 July 2017
18
See Article 5 Rome Statute.
Responsibility to Protect: in Light of Yemen Case
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in any area near " large scale loss of life, actual or apprehended,
with genocidal intent or not, ...or large scale “ethnic cleansing,”
actual or apprehended, whether carried out by killing, forced
expulsion, acts of terror or rape.".
2. Collective Responsibility v. Unilateral Action
One of the most important missing elements of the principle is
that it has not been taken in a collective manner rather with
mobilizing for a military intervention. In the W.S.D, the
importance of this issue is explicitly mentioned by States that
"we are prepared to take collective action, in a timely and
decisive manner, through the Security Council, in accordance
with the Charter, including Chapter VII, on a case-by-case basis
and in cooperation with relevant regional organizations as
appropriate"
19
. Also in ICISS report, four sections
20
were
allocated only for the procedural aspect of the principle which is
severely missing in Yemen case. The supporting evidence of
this missing elements is found in the reports issued by the
Secretary General, and HRC reports, that urges the Saudi lead
Alliance to allow UN Special Adviser on the Prevention of
Genocide, and UN Special Adviser on the Responsibility to
Protect to conduct their visits to Yemen. Also, S.G Ban Ki-
moon, has issued a report on 2016
21
, calling for all parties to
cease fire and take their responsibility in protecting the civilians.
The Saudi alliance gave its intervention a thematic structure that
is similar to the structure required by RtoP, as they did perform
their intervention in an "operational manner", did establish some
declarations, statements, and multilateral decisions that
indicated "early warning", and they were definitely more than
19
UN General Assembly, 2005 World Summit Outcome : resolution /
adopted by the General Assembly, 24 October 2005, A/RES/60/1
20
Measures Short of Military Action, The Decision to Intervene, Threshold
Criteria: Just Cause, and Other Precautionary Criteria. In ICISS Report
21
Security. Council Report. February 2016 .Monthly Forecast.
Responsibility to Protect: in Light of Yemen Case
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two states -giving it a collective nature. The main operation was
"Decisive Storm"
22
(military), which ended after 21st April 2015
and lasted for 26 days (giving it a nature of battle rather
operation). However, after this operation, the strikes and
military subsidized operations did not stop. And the rule which
Louise Arbour described "the negative consequences of military
action not outweigh the anticipated benefits"
23
was gravely
violated. Civilian deaths rates rose, fatal diseases spread,
cultural locations were destroyed and millions of civilians were
displaced
24
. And the main and most important element of RtoP,
responsibility to rebuild, was yielded to what was called
"Restoring Hope" Political Operation. In the after math of the
military invention, an analysis of three pillars of RtoP would
result in a complete disaster. The prevention of violence was
replaced with greater violence of a political nature. The reaction
pillar, or as called by Jeremy Sarkin "Achilles heel"
25
, which is
all about precautionary criteria and careful measures, was
exhausted with civilian causality statistics. And the
responsibility to rebuild is still out of the framework with no
identified development policy.
IV. Responsibility to Protect, de lege ferenda, in Yemen
This case demonstrates what Brazil described as " excessively
broad interpretations of the protection of civilians, which could
link it to the exacerbation of conflict, compromise the
impartiality of the United Nations or create the perception that it
is being used as a smokescreen for intervention or regime
22
Global Center for the Responsibility to Protect. Populations at
Risk Current Crisis. 17 July 2017
23
see Louis Arbour proportionality test. Jeremy Sarkin. "Is the Responsibility
to Protect an Accepted Norm in International Law in the post-Libya Era?".
Groningen Journal of International Law. Vol. 1, no. 0: Responsibility to
Protect P.28.P1
24
Report of the United Nations High Commissioner for Human Rights.
Situation of human rights in Yemen. A/HRC/33/38. 4 August 2016
25
Jeremy Sarkin. "Is the Responsibility to Protect an Accepted Norm in
International Law in the post-Libya Era?". Groningen Journal of International
Law. Vol. 1, no. 0: Responsibility to Protect P.28.P1
Responsibility to Protect: in Light of Yemen Case
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change". In Brazil and BRICS point of view, the RtoP is an
essential principle whose existence is logic and legitimate,
however, it is as risky as beneficial when used or interpreted in a
certain way in certain time. Population in Yemen might have
been indeed under the need to humanitarian protection, and an
intervention was -at least- required to prevent serious violence
on civilians, however, what occurred in Yemen was the furthest
thing from RtoP.
RtoP is driven by the humanitarian motive for preventing and
stopping the cause of the violence, when certain third-party state
inject even a small portion of its interests in the intervention, the
whole process of the RtoP could be jeopardised and risk of more
complicities is more likely to grow. Having this in mind, a plan
for turning the principle into norm would have to take in
consideration the level of collectivism required for reaction to be
called "collective reaction". Also, a criteria in the perception of
the participating states should be established, discussing the
limits to which each state shall participate within, and the
division of the tasks between protecting states. Another issue
that has triggered suspension in reader's mind is the
correspondence of the motive/interest driving the intervention
and the level of involvement of these states. For the sake of the
BRICS argument, the case of Yemeni serve a key example of
negative use -if not "exploitation"- of the term R2P.
V. Conclusions
To conclude is more easy than to recommend in issues related to
RtoP. This immature concept is still growing in the international
community arena, thus an absolute personification of what it
means would be inaccurate. As much legal as this principle is, it
remains a political dependant concept. This is indicated in
President Roosevelt statement in 1939 referring to Somoza, who
Responsibility to Protect: in Light of Yemen Case
A.Alattrash
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was a Nicaraguan dictator and anti-communist, " Somoza may
be a son of a bitch, but he's our son of a bitch."
26
Consequently, The Responsibility to Protect is a sharp legal
instrument that could lead to devastating consequences if it was
lightly manipulated or wrongly motivated. A strict language, of
a binding influence and punitive consequences, shall be taken in
consideration when drafting any norm related to RtoP, which
leaves no room for questioned intents of involved States and that
pays more attention on the collective aspect of any reaction,
prevention, and rebuild.
26
see November 15, 1948 Time magazine. see also March 17, 1960 broadcast
of CBS Reports "Trujillo: Portrait of a Dictator". see also Andrew Crawley "
the Roosevelt statement is a myth created by Somoza himself"
Responsibility to Protect: in Light of Yemen Case
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VI. Bibliography
Primary Sources
1. UN General Assembly, International Covenant on Civil
and Political Rights, 16 December 1966, United Nations,
Treaty Series, vol. 999, p. 171
2. United Nations, Vienna Convention on the Law of
Treaties, 23 May 1969, United Nations, Treaty Series,
vol. 1155, p. 331
3. UN General Assembly, Rome Statute of the International
Criminal Court (last amended 2010), 17 July 1998, ISBN
No. 92-9227-227-6
4. League of Arab States, Arab Charter on Human Rights,
15 September 1994
Secondary Sources and literature :
1. UN General Assembly, 2005 World Summit Outcome :
resolution / adopted by the General Assembly, 24
October 2005, A/RES/60/1
2.
3. International Commission on Intervention and State
Sovereignty, The Responsibility to Protect. Report of the
International Commission on Intervention and State
Sovereignty, International Development Research
Council, December 2001, 67
4. Ban, K., Remarks to the General Assembly: Informal
Integrative Dialogue on ‘Early Warning, Assessment,
and the Responsibility to Protect (RtoP)’, International
Coalition for the Responsibility to Protect, 23 July 2010
5. Jeremy Sarkin. Groningen Journal of International Law.
Vol. 1, no. 0: Responsibility to Protect.
6. UN Security Council, The Role of Regional
and Subregional Arrangements in Implementing the
Responsibility to Protect: Report of the Secretary-
General, United Nations, 28 June 2011
Responsibility to Protect: in Light of Yemen Case
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7. O.G.P. and the RtoP.PR, S.A of the UNSG on the
Prevention of Genocide, Francis Deng, and on the RtoP,
Edward Luck, on the Contemporary Relevance of the
Commitment to Prevent Genocide and Related Crimes
Office of the S.A. on Prevention of Genocide. 9
December 2011
8. Arbour, L., The Rise and Fall of International Human
Rights, Lecture on the Occasion of the Sir Joseph
Hotung International Human Rights Lecture 2011, 27
April 2011
9. UNSC Presidential Statement 25 (2010), UN Doc
S/PRST/2010/25.
10. Albright, M. K., The End of Intervention, New York
Times, 11 June 2008
11. Evans, G., Delivering on the Responsibility to Protect:
Four Misunderstandings, Three Challenges and
How To Overcome Them, Stiftung Entwicklung und
Frieden (Development and Peace Foundation)
Symposium, 30 November 2007
12. World Report" human rights watch. 26 April 2017
13. William W. Park. and Alexander A. Yanos.
Treaty Obligations and National Law: Emerging
Conflicts in International Arbitration
14. .M."Persian Gulf" region, updated 2015based on 2008-
2009 data, retrieved October 2015
15. W. PeterW Graham Douglas. 1994." Saudi Arabia: the
coming storm".
16. Yamani.M. Cardle of Islam. London. I.B Taunis. 2004.
Ch.2.
