Responsibility for Civilian Casualties in Yemen
As the conflict in Yemen continues, civilian casualties are reaching alarming levels. At least 10,000 people have been killed and thousands wounded since March 2015, at a rate of thirteen civilian casualties per day. According to the UN, Saudi-led airstrikes have been responsible for two-thirds of the civilian casualties, including in indiscriminate or targeted attacks on civilian areas, hospitals, schools, markets and civilian industries. Airstrikes have also had a devastating impact on humanitarian action in the country: citing “[i]ndiscriminate bombings and unreliable reassurances from Saudi-led coalition,” for instance, Médecins Sans Frontières (MSF) decided last month to evacuate its staff from facilities in northern Yemen after the fourth and deadliest attack on one of its hospitals killed 19 and injured 24 people. Such developments are compounding already limited access to healthcare and other basic services, and exacerbating humanitarian need to the point that an estimated 21.2 million people in Yemen – 82% percent of the total population – are now in need of humanitarian assistance.
While states have long been reticent to sanction Saudi Arabia for human rights or humanitarian law violations in international fora, a growing array of observers and UN officials have condemned this conduct as violating international law. Critics have also pointed to the obligations of Saudi Arabia’s partners and weapons suppliers – chief among them Western powers such as France, the U.S. and U.K. – to not facilitate or profit from the destructive bombing campaign in Yemen. In this context, it bears repeating that although international humanitarian law (IHL) allows for civilian casualties to occur as an unavoidable, incidental result of legitimate military operations, direct attacks on civilians and civilian objects are explicitly prohibited. However, as the conflict in Yemen highlights, there remains a lack of understanding of what IHL actually requires of conflict parties in terms of the protection of civilians – which is often less than one might expect – as well as the obligations of other states to not facilitate attacks against civilians by aiding or supplying forces committing those violations, and a lack of effective means of enforcement.
Under IHL, conflict parties have an obligation to limit harms to civilians arising from hostilities. Indeed, the fundamental aim of IHL is to limit suffering in wartime by sparing persons who are not, or are no longer, participating in hostilities. Nonetheless, it is important to emphasize that IHL does not prohibit civilian casualties, nor can it protect all those affected by armed conflict. Rather, it seeks to strike a balance between allowances for military necessity and protections for humanity in conflict. As a result, IHL is actually rather permissive of civilian casualties resulting from legitimate military operations, as long as they are kept to a reasonable minimum. The conduct of hostilities in Yemen, however, appears to have crossed many of the permissible limits on civilian casualties, thereby violating fundamental provisions of the laws of war.
Take the rule of distinction, for instance, which requires parties to a conflict to distinguish at all times between civilians and combatants, and to only direct attacks against combatants and military objectives. Saudi-led coalition forces have been repeatedly accused of violating this rule, either in indiscriminate attacks or by targeting civilians directly. According to a report issued in January by the UN Panel of Experts on Yemen (which was established by the Security Council to monitor the implementation of sanctions against Yemen):
the [Saudi-led] coalition had conducted air strikes targeting civilians and civilian objects, in violation of international humanitarian law, including camps for internally displaced persons and refugees; civilian gatherings, including weddings; civilian vehicles, including buses; civilian residential areas; medical facilities; schools; mosques; markets, factories and food storage warehouses; and other essential civilian infrastructure, such as the airport in Sana’a, the port in Hudaydah and domestic transit routes (Para. 137).
The Saudi military has also been accused of using weapons in civilian areas that are internationally sanctioned due to their inability to discriminate between civilians and military targets, such as American-made cluster munitions.
It is important to note that under IHL, civilian protection is not absolute. Civilians may lose this protection from attack if they take direct part in hostilities, just as civilian objects may lose protection – with some precautions – if their use or purpose makes an effective contribution to military action (such as a factory which has been taken over for military use). The issue here is the negative definition of a civilian object under IHL – all objects that are not military are considered civilian, but the terms “use or purpose” mean that any object could become a legitimate military object under certain circumstances. This has largely not been at issue in Yemen, however, as Saudi forces have not generally attempted to legitimize their targeting of civilian sites on such grounds.
The balancing act inherent in IHL is perhaps even more apparent in the principle of proportionality. At the outset, it is important to reiterate that any direct attack against a civilian object is strictly prohibited, so any discussions of proportionality and precautions only apply when there is a lawful military objective. Nonetheless, proportionality prohibits “launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” As is apparent in the rule, the proportionality of an attack is not determined after the fact based on the total damage done, but rather before the fact by the so-called “reasonable military commander”. Therefore, excessive civilian casualties that could not have been reasonably foreseen are not prohibited, e.g. if an attack results in larger collateral damage than expected. Similarly, IHL requires all parties to a conflict to take all feasible precautions to avoid and minimize harm to civilians and civilian objects arising from military operations. Again, notice should be taken of the word ‘feasible’ – which has been interpreted by many states to mean “precautions which are practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.”
Despite this rather permissive balancing act permitted by IHL, evidence indicates that the conduct of hostilities in Yemen has frequently violated these principles of proportionality and precaution, thereby fueling the high civilian death toll. As the Panel of Experts’ report notes:
all parties to the conflict in Yemen have violated the principles of distinction, proportionality and precaution, including through their use of heavy explosive weapons in, on and around residential areas and civilian objects, in contravention of international humanitarian law. The use of such attacks in a widespread or systematic manner has the potential to meet the legal criteria for a finding of a crime against humanity.
In addition to the war crimes of targeting civilians, the terminology above alluding to a possible crime against humanity is significant to note, as war crimes need not be committed in a “widespread and systematic” a manner.
These findings have led a growing number of international officials to call out Saudi Arabia and its partners for these violations, and to call for further investigation and accountability. In May, for instance, the UN Humanitarian Coordinator for Yemen noted how “The conflict in Yemen is taking a dreadful toll on civilians,” and that, “The indiscriminate bombing of populated areas, with or without prior warning, is in contravention of international humanitarian law (IHL).” The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein recently remarked that civilians:
continue to suffer, absent any form of accountability and justice, while those responsible for the violations and abuses against them enjoy impunity. Such a manifestly, protractedly unjust situation must no longer be tolerated by the international community.
Zeid called for an international investigation of possible war crimes and other violations in Yemen. After all, though the UN Panel of Experts on Yemen considered violations of international humanitarian law and human rights law, it did not constitute a commission of inquiry; rather, the Panel’s final report recommended the establishment, by the Security Council, of an “international commission of inquiry to investigate reports of violations of international humanitarian law and human rights law in Yemen by all parties and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable.” Thus far, however, Saudi Arabia has successfully lobbied in the UN Human Rights Council to prevent the establishment of a commission of inquiry. Criminal prosecutions or other legal accountability similarly remain a remote possibility.
The obligations of weapons suppliers
If Saudi Arabia is violating its own responsibilities to avoid harming civilians during its military operations in Yemen, then, what obligations do its partners and weapons suppliers have?
Saudi Arabia is the second largest importer of arms worldwide, and its suppliers have come under heavy criticism for continuing to approve weapons sales to the Kingdom despite the mounting civilian casualties in Yemen. Critics have focused in particular on France, the U.S. and UK, which in addition to providing some military and logistical support to the Saudi-led bombing campaign, are also the Kingdom’s largest weapons suppliers. Human rights organizations, journalists and politicians have called on their respective governments to cease fueling the conflict and killing of civilians by halting arms sales to Saudi Arabia. These campaigns have thus far been met with limited success, although the U.S. has begun distancing itself from the conflict by removing some U.S. military planners from Saudi Arabia, and pledged to cease the transfer of cluster munitions.
The continued support of Western powers for the Saudi military (and to other states as well, for that matter) is not just morally questionable, but appears to violate their obligations under international law. Namely, many of Saudi Arabia’s suppliers, including France and the UK, are parties to the UN Arms Trade Treaty (ATT), which prohibits parties to transfer arms “if the transfer would violate its relevant international obligations under international agreements”[Art. 6(2)]. It also prohibits transfers if the party “has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes”[Art. 6(3)]. Furthermore, if the export is not prohibited, each exporting State Party must carry out a risk assessment prior to authorization, including of the potential that the arms could be used to commit a serious violation of international law [Art. 7 (1)]. While the U.S. is not a Party to the ATT, it is a Signatory, meaning that it is bound, at minimum, to not do anything to defeat the ‘object and purpose’ of the treaty.
As evidence mounts of attacks against civilians in Yemen, then, many of these states appear to be violating their obligations under the ATT. According to the Control Arms Coalition, “Several States Parties appear in direct violation of legally binding Treaty obligations by continuing to supply arms to Saudi Arabia where there is a clear risk that they will be used in breach of international law in Yemen.” At minimum, it is unclear that states are fulfilling their obligation to carry out comprehensive risk assessments prior to approving arms exports – given the lack of transparency surrounding these deals.
While the Saudi-led bombing campaign in Yemen has brought concerns over civilian casualties and disrespect for IHL to the forefront, such concerns are certainly not limited to that conflict. The U.S. military has also been criticized, for instance, for ignoring or underreporting civilian casualties in its bombing campaigns against ISIS in Iraq and Syria – two countries that have also seen heavy civilian casualties.
As in other current conflicts taking a heavy toll on civilians, Saudi Arabia’s conduct in Yemen – and the involvement of so many states in supporting and arming the Saudi-led coalition – highlight the need to reinforce states’ obligations to protect civilians under international law, and to develop more effective means of monitoring and enforcing the law in the face of violations. While IHL accepts a certain amount of civilian casualties in the course of war fighting, it does not accept the deliberate targeting of civilians and civilian objects, nor the careless disregard for civilian casualties. As casualties continue to mount in Yemen, it is incumbent on Saudi forces to renew their commitment to international law and the protection of civilians, and for their partners and weapons suppliers to cease their complicity in the widespread killing of civilians.
Legal Research Associate
Julia Brooks is a Legal Research Associate at Harvard Humanitarian Initiative (HHI), where she focuses on international humanitarian law, policy and education. For the Advanced Training Program on Humanitarian Action (ATHA), she serves as host and producer of the Humanitarian Assistance Podcast series; a researcher focusing on international humanitarian law and humanitarian protection; and a managing editor and contributor to the ATHA blog and paper series. She also contributes as a writer, teaching fellow and consultant to curriculum development for e-learning tools, online and in-person courses developed by the Humanitarian Academy at Harvard.
Previously, Julia worked in Berlin, Germany at the Foundation "Remembrance, Responsibility & Future" (Stiftung EVZ), Adelphi Research & Consult, the German Parliament (Bundestag), and the UN High Commissioner for Refugees (UNHCR) as a Senior Fellow with Humanity in Action. She has also worked at the Office of the High Representative in Bosnia and Herzegovina (OHR) in Sarajevo, and the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, The Netherlands. She holds a Master of Arts in Law and Diplomacy (MALD) from the Fletcher School of Law and Diplomacy at Tufts University, where she received the Alfred P. Rubin Prize and Leo Gross Prize for excellence in international law, and a Bachelor of Arts (BA) in Public Policy from Brown University, magna cum laude.