[Just Security is publishing a series of articles by legal experts discussing the major UN report on the Yemen War. This is the second article in the series.]
Facts are more important than law. Yemeni women and men, girls and boys, have been killed and maimed, tortured and raped, detained and starved, by officials and agents of the governments of Yemen, the United Arab Emirates, and Saudi Arabia, as well as by Houthi fighters acting on behalf of Ansar Allah. Every victim has a name. So does every perpetrator.
Last week, the Group of Eminent International and Regional Experts on Yemen submitted its latest report to the United Nations High Commissioner for Human Rights, along with a 274-page supplemental report containing the Group’s detailed findings. It is impossible to summarize the horrors described in these reports, let alone imagine the many more known only to those who inflict and suffer them. No legal analysis is necessary to show the moral imperative to end this infernal conflict.
Nevertheless, the Group makes a number of important legal findings, which it summarizes with admirable bluntness:
The Group of Experts found reasonable grounds to believe that the parties to the conflict in Yemen are responsible for an array of human rights violations and violations of international humanitarian law. Some of these violations are likely to amount to war crimes.
This post will focus on the Group’s discussion of indiscriminate attacks under international humanitarian law (IHL, or the law of armed conflict) and international criminal law.
The Group found reasonable grounds to believe that Houthi fighters, Yemeni armed forces, and armed groups backed by the United Arab Emirates carried out indiscriminate attacks by using “indirect fire weapons with wide-area impact, such as rockets, mortars and artillery” in “civilian populated area[s],” killing hundreds of men, women, and children. In each case, the Group found that “the imprecise nature of the weapons used and the areas at which they were directed rendered the attacks indiscriminate.”
The supplemental report makes clear that the Group builds on earlier work by the International Committee for the Red Cross (ICRC):
Certain types of explosive weapons with a wide impact area, such as artillery, mortars, and unguided rockets, which use blast and fragmentation to kill and injure are inherently inaccurate when used in populated areas. In 2011, the ICRC stated that “due to the significant likelihood of indiscriminate effects and despite the absence of an express legal prohibition for specific types of weapons, the ICRC considers that explosive weapons with a wide impact area should be avoided in densely populated areas.” The use of these types of weapons against military objectives located in populated areas is “likely to fall foul of the IHL rules prohibiting indiscriminate and disproportionate attacks.” The principle of distinction is especially relevant in the context of the use of heavy weaponry in densely populated areas, as is the case for the shelling incidents described above. Even though there were identifiable military objectives which may have been the target of the attack, the type of weapon used and the area at which it was launched rendered the attack indiscriminate.
The phrase “inherently inaccurate” is somewhat imprecise. On the ICRC’s view, a weapon’s accuracy—roughly, its likelihood of striking a selected target—may be sufficient for use in sparsely populated areas but insufficient for use in densely populated areas. Similarly, weapons with a “large blast and fragmentation range or effect” may pose few risks to civilians in naval warfare, but pose grave risks to civilians in cities, towns, and camps for the internally displaced.
As the Group notes, the ICRC says that the use of explosive weapons with wide impact area is likely to fall foul of the IHL rules prohibiting indiscriminate and disproportionate attacks. The ICRC does not say that the use of such weapons in such areas “renders” the attack indiscriminate or disproportionate. To the extent that the Group relies on the ICRC’s persuasive authority, it might have said that the type of weapon used and the area at which it was launched provide reasonable grounds to believe that the attacks were indiscriminate or disproportionate.
Does any of this matter? Morally, not a bit. Legally, perhaps. In my view, the ICRC is trying to interrupt our endless debates over the precise content of specific legal rules to remind us what these rules are for. The ICRC notes that “[i]t is unclear what States consider to be the degree or standard of accuracy of a weapon that would be acceptable … generally or in a given operational situation.” Similarly, “there remains uncertainty regarding which reverberating effects of an attack”—for example, death caused by disruption of medical services caused by damage to hospitals—are sufficiently “foreseeable” to render an attack disproportionate.
Eventually, we’ll have to settle these debates in light of the law’s object and purpose: “the overarching objective of protecting civilians and civilian objects against the effects of hostilities.” But we don’t have to settle these debates first, and then stop using weapons with wide-area effects in populated areas. We should stop now. Such attacks are “likely to fall foul of the IHL rules” however these debates are settled, assuming we ultimately settle them in good faith and in light of the law’s object and purpose. We can’t assume permission now and seek forgiveness later. There will be no forgiveness later.
The Group doesn’t have to settle these debates either. It just needs reasonable grounds to believe that these attacks fall outside the range of reasonable legal disagreement. Those bombarding Yemen’s cities and towns cannot claim unfair surprise when these debates are finally settled against them.
The Group also doesn’t have to resolve parallel disputes under customary international criminal law applicable to non-international armed conflicts between States and organized armed groups. Is it a war crime to use wide-impact weapons, consciously disregarding the risk of striking civilians, as the Group suggests? Or is it only a war crime to use such weapons with the intention to strike civilians? International courts accept that the use of such weapons constitutes strong evidence—in some cases, proof beyond reasonable doubt—of an intention to strike both civilians and military targets without distinction (see most recently here and here, and previously here). Accordingly, the Group’s findings provide reasonable grounds to believe that attacking forces committed war crimes on either substantive legal theory.
The Group should also prepare itself for potential pushback from the United States government. As Just Security readers know, Paul C. Ney Jr., general counsel of the U.S. Department of Defense, recently criticized the ICRC’s position. Incredibly, Ney claimed that the use of explosive weapons with a wide impact area in densely populated areas may reduce overall harm to civilians, supposedly by allowing the party using them to win “as quickly as possible.” Obviously, the widespread use of such weapons in Yemen has not enabled anyone to win quickly, or at all, and has multiplied rather than reduced overall harm to civilians. There is no reason for the Group, or for anyone else, to entertain a consequentialist theory of the law of armed conflict so divorced from actual consequences.
As the report explains, “the Group has been limited to examining the results of airstrikes, as access to information on the targeting process itself has been denied.” In his speech, Ney claimed that “[a]fter-the-fact information of the results of a strike is not necessarily probative of what the commanders and operators knew at the time of their decision-making,” while insisting that “commanders and other decision-makers must be judged only on the basis of the information available to them at the relevant time.” Ney’s implication is plain: The only probative evidence of unlawful attacks lies in the hands of the suspects, who are free to keep such evidence to themselves. The Group rightly rejects this view.
it is questionable whether the United Kingdom, the United States, France, and the Islamic Republic of Iran are taking all reasonable measures to ensure the respect for international humanitarian law in Yemen. The same may be said for all States [including the United States] that transfer arms to the parties to the conflict in Yemen.
The very least the United States can do is withhold comment on the Group’s report. There may be some in our government who wish to reserve a “right” to use wide-impact weapons in densely populated areas. There may be others who wish to impede efforts by U.N. bodies and NGOs to hold us accountable for apparent violations of international law. They should sit this one out. Our country’s support for Yemeni, Emirati, and Saudi operations is disgraceful enough as it is.
[Editor’s note: Readers may also be interested in Michael Schmitt, Kieran Tinkler and Durward Johnson, “The UN Yemen Report and Siege Warfare.”]