At the occasion of the 130th Session of the Human Rights Council (12 October 2020 – 6 November 2020), Just Access together with the Maat Foundation for Peace, and Development and Human Rights Association (MAAT), filed a submission in August 2020 in the context of the review of Yemen under the International Covenant on Civil and Political Rights.[1] In our submission, we raise the legal responsibility for multiple crimes and international law violations committed in Yemen by the Houthis and terrorist groups, underscored by the fact that those non-state armed groups exercise control over large portions of this country. International responsibility is indeed traditionally ascribed to the official authorities of a State, because normally only States can legally bind themselves under international legal instruments.
Yet, since the start of the conflict afflicting Yemen and its people, numerous violations of international law have been committed by the Houthis and terrorist groups. They are largely documented among others by UN bodies, fact-finding missions and NGOs. Against this backdrop, an important legal question must be posed: should official authorities plunged into an armed conflict be held responsible for acts committed by non-state actors effectively controlling large portions of its territory? As this post will explain, the Yemeni conflict illustrates how international law has come to depart from the traditional view that chiefly ascribed responsibility to official authorities for international crimes and international law violations committed by non-state armed groups on their territory. This is an especially urgent issue in the case of the Houthis, who wish to appear to be the legitimate authorities of the country, but also of other non-states armed groups imbued with a willingness to break apart the State of Yemen.
The Yemeni conflict, the Houthis and terrorist organisations
The UN High Commissioner for Human Rights (hereafter “OHCHR”) stated that the situation in Yemen has “deteriorated significantly” during the last years.[2] UNICEF describes the current situation in Yemen as the largest humanitarian crisis in the world. The UN-recognised Government is in exile, while an armed group known as Ansar Allah, often used synonymously with the Houthis, have seized effective control in the north and over the capital, Sana’a. In the last few months, the Southern Transitional Council declared self-rule in parts of south Yemen and the island of Socotra. In addition, Al-Qaida in the Arabian Peninsula (hereafter “AQAP”) and the Islamic State (hereafter “IS”) are very active in Yemen and control several bases in the country. Thus, Yemen is in a state of disarray, with multiple non-state armed groups controlling important portions of its territory and constant operations and attacks by well-established terrorist organisations. A majority of Yemeni are living under areas controlled by the Houthis.[3]
International legal obligations applicable to the National Salvation Government set up by the Houthis
Although the UN does not recognise Ansar Allah (i.e. the Houthis) and the National Salvation Government that it dominates, as the legitimate government of Yemen, UN institutions nonetheless engage Ansar Allah under the label of “de facto authorities”. Ansar Allah itself claims to be the legitimate Government, and has established an institutional structure with ministries and offices that seek to create the impression of a legitimate and functioning government. To support that impression, for instance in its 2019 reply to the Group of Eminent Experts on Yemen (thereafter “GEE”), this “de facto authority” has explicitly claimed to derive legitimacy from the constitutional continuity of Yemen and from its respect for international law, including obligations under international treaties that previous governments of Yemen have acceded to. As we have shown in our joint submission to the OHCHR, the National Salvation Government has specifically claimed to fulfil its obligations under several international instruments, including the International Covenant of Political and Civil Rights.
Numerous and egregious international law violations and abuses committed by the Houthis and terrorist organisations
International organisations and bodies, as well as experts, civil society organisations and investigative bodies, have all documented numerous and egregious violations committed in Yemen by the Houthis and terrorist organisations.[4]
What follows does not constitute an exhaustive list but sheds light on the extent to which those non-state armed groups have repeatedly and tragically afflicted persons living on territories under their effective control and beyond. Among the long list of international crimes and other grave violations of international committed by the Houthis and terrorist organisations are: rapes, torture, mistreatments, arbitrary and extrajudicially killings,[5] including of women and children;[6] recruitment and use of children in armed conflict[7]; killings of journalists[8] and their forced disappearance[9]; persecution of minorities, Baha’is and Yemeni Jews[10]; use of landmines[11]; use of indiscriminate explosive in civilian populated areas[12]; targeting of health infrastructures, medical personal[13] and lack of management of the Covid-19 pandemic in territories under their effective control[14]; arbitrary detention,[15] including long-term incommunicado detention[16] (among others in the Hanish Prison,[17] in the Ibb’s Political Security Building[18], in the Dhammar Community College[19]); enforced disappearance[20] (for ex. in connection to the National Security Forces detention facilities)[21] and other associated violations to the deprivation of liberty[22]; and the ‘ordinary’ commission of terrorist attacks.[23]
Thorny legal issues of international responsibility raised by the Houthis’ de facto regime and their effective control of territories
The matter of State responsibility in circumstances such as Yemen’s raises thorny legal questions about State capacity, fragility, failure and legitimacy. UN practice with regard to Yemen shows that it is possible to engage “de facto authorities” in matters that conventionally belong to State responsibility without recognising “de facto authorities” as the de jure State. The 2018 OHCHR Report notes that “[t]he de facto authorities control large swathes of territory, including Sana’a, and exercise a government-like function in that territory such that they are responsible under international human rights law”.[24] In September 2020, the OHCHR also stated that despite the Houthis’ refusal to cooperate with its teams, due to the presence of the UN HR Commissioner’s field monitors in some areas, it could “document and investigate human rights violations and abuses in those areas to some extent.”[25]
Under international law, the notion of effective control traditionally serves, under the rules of States responsibility, to attribute illicit acts to a State that has effective control over non-state actors.[26] A prominent example is the famous ICJ Nicaragua v. the United States of America case, where the United States was accused of controlling forces opposed to the Contras in Nicaragua. In case a non-state armed group seized power in a State, the responsibility of that State for wrongful acts can be triggered as a rule of attribution to the victorious non-state armed group then in power.[27] Thus, despite factual realities of the Houthis’ de facto control over large portions of Yemen’s territory and terrorist groups’ activities and presence, the situation in Yemen is legally complex. Indeed, in some instances a State engaged in a non-international armed conflict can still be held responsible under some international conventions, even though it has lost control over some areas of its territory against other parties to the conflict. Yet, the official Yemeni Government’s loss of control in many areas of its territory has reached such a level that it cannot be held responsible for acts committed in those territories. The conventional scheme of State and non-state responsibilities does not fit the current situation in Yemen.
If the Houthis cannot be considered as having seized power, they are nevertheless exerting effective control over large portions of the country’s territory and have established a de facto regime with structures that claim to parallel those of the recognised Government.[28] Furthermore, the Houthi-dominated National Salvation Government does in fact exercise elements of governmental authority on the State’s territory. Therefore, it would be manifestly unreasonable to refuse to hold “de facto authorities” to international norms and standards, especially since such authorities explicitly claim to be bound by them. As shown in our joint submission to the OHCHR, this view is supported by Article 9 of the ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, as well as by the fact that the OHCHR and the European Court of Human Rights have accepted that Convention rights can be realised through governmental institutions of a de facto regime.[29] This is further supported by the fact that the Houthi “de facto authorities” have committed violations of ICCPR provisions that the Human Rights Committee considered to be part of customary human rights law, thus enforceable against every authority regardless of its official status or recognition.[30]
The Yemeni situation demonstrates that non-State forces pretending to govern those areas can be held directly liable for their violations of international law. This was clearly affirmed by the Group of Experts on Yemen in their September 2020 report about the de facto regime of the Houthis as well as terrorist groups controlling their territories.[31] One could even argue that this view draws on an increasingly established trend in international law. The Independent International Inquiry on Syria has already stressed responsibilities of the so-called Islamic State and other terrorist groups for their atrocities and international law violations in that conflict, under international human rights law, international humanitarian law, and for the international obligations that have a jus cogens value.[32]
A clear trend in international law for holding non-state armed groups and de facto authorities directly responsible for egregious international law violations
The Group of Experts’ September 2020 Report states that if “the Houthis/de facto authorities are also obliged to abide by these same international humanitarian law norms”, “[t]he precise legal mechanism by which this occurs is debated.”[33] In this regard, the Group of Experts cites a legal article that reviews multiple theories concerning the legal basis on which non-state actors and de facto authorities can be held responsible for violations of international law: “While some theories take into account ANSAs’ consent, other views are based on their relationship with States and the rules accepted beforehand by States’ authorities.”[34]
In the case of the Houthis, the matter seems to be factually less controversial, since they have clearly expressed their consent to be bound by several international instruments. One of the traditional theories cited in the aforementioned article is that of “effective sovereignty”.[35] Other theories emphasize the importance of non-state actors’ consent to be bound to international instruments, as is in fact the case with the Houthis.[36] The two authors of the paper cited by the Group of Experts favour an approach based on the principle of equality of belligerent parties for international law’s application.[37]
Such theories can contribute to solving some of the practical and theoretical difficulties that arise when non-state actors do not claim to represent a State in every regard. In the case of Yemen, some difficulties remain concerning terrorist groups that operate on Yemeni territory.[38] However, insofar as those groups also exercise forms of territorial effective control,[39] the same logic might apply. In addition, international law unambiguously provides for obligations directly applicable to terrorist organisations, which can also be bound by international human rights law and international humanitarian law.
If serious international law violations and atrocities committed by the Houthis and international terrorist groups in Yemen have clearly been pointed out in several international reports over the last several years, most of the attention has been devoted to the legal responsibility of the recognised Government of Yemen for the conflicts that afflict this country. In this regard, one could plausibly argue that the Group of Experts pays insufficient and ill-framed attention to issues of responsibility and accountability of the Houthis de facto government and terrorist groups in Yemen. Just Access’ August 2020 submission to the OHCHR aims to bring attention to victims of numerous atrocities by the de facto regime established by the Houthis as well as by terrorist groups in Yemen.
Postscript: in January 2021 the US Government designated Ansar Allah a Foreign Terrorist Organization.
[1] UN Treaty Body, CCPR – International Covenant on Civil and Policial Rights, 130 Session (12 October 2020 – 6 November 2020), at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=1375&Lang=en.
[2] See, UN Human Rights Council, Situation of human rights in Yemen: Report of the United Nations High Commissioner for Human Rights (A/HRC/33/38), 4 August 2016, paragraph 12.
[3] See, for instance, Bruce Riedel, “Order from Chaos: Amid a brutal stalemate in Yemen, the United Nations must act”, 25 June 2018, at https://www.brookings.edu/blog/order-from-chaos/2018/06/25/amid-a-brutal-stalemate-in-yemen-the-united-nations-must-act/. UNSC, Final report of the panel of experts on Yemen, S/2018/594, distr. gen. on 26 January 2018, p. 10, para. 21 and Annex 8, p. 69.
[4] HRC, Written statement submitted by Partners For Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/39, distr. gen. on 16 September 2020, pp. 3-4.
[5] HRC, Written statement submitted by Partners For Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/39, distr. gen. on 16 September 2020, p. 1.
[6] HRC, Written statement submitted by Maat for Peace, Development and Human Rights Association, a non-governmental organization in special consultative status, A/HRC/45/NGO/8, distr. gen. on 3 September 2020, p. 3.
[7] UNSC, Final report of the panel of experts on Yemen, S/2018/594, distr. gen. on 26 January 2018, p. 20, para. 63 and pp. 52-3, paras. 185-6.
[8] HRC, Written statement submitted by Cairo Institute for Human Rights Studies, a non-governmental organization in special consulatitve status, A/HRC/45/NGO/10, Distr. gen. on 4 September 2020, p. 3.
[9] HRC, Written Statement submitted by Partners for Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/38, distr. gen. on 21 September 2020, p. 3.
[10] HRC, Written statement submitted by Organisation internationale pour les pays les moins avancés (OIPMA), a non-governmental organization in special consultative status, A/HRC/45/NGO, distr. gen. on 7 September 2020, pp. 2-3, citing UN News, “Persistent persecution of Bahá’í in Yemen ‘unacceptable,’ and must stop, says UN expert”, 22 May 2017, at https://news.un.org/en/story/2017/05/557852-persistent-persecution-bahai-yemen-unacceptable-and-must-stop-says-un-expert.
[11] HRC, Written statement submitted by Maat for Peace, Development and Human Rights Association, a non-governmental organization in special consultative status, A/HRC/45/NGO/8, distr. gen. on 3 September 2020, p. 3; HRC, Written statement submitted by Organisation internationale pour les pays les moins avancés (OIPMA), a non-governmental organization in special consultative status, A/HRC/45/NGO/9, distr. gen. on 7 September 2020, p. 3.
[12] UNSC, Final report of the panel of experts on Yemen, S/2018/594, distr. gen. on 26 January 2018, pp. 50-1, paras. 178-9.
[13] HRC, Written Statement submitted by Partners for Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/38, distr. gen. on 21 September 2020, p. 2.
[14] HRC, Written statement submitted by Maat for Peace, Development and Human Rights Association, a non-governmental organization in special consultative status, A/HRC/45/NGO/8, distr. gen. on 3 September 2020, p. 4.
[15] HRC, Written statement submitted by Americans for Democracy & Human Rights in Bahrain Inc, a non-governmental organization in special consultative status, A/HRC/45/NGO/18, distr. gen. on 2 September 2020, p. 3 citing; HRC, Written statement submitted by Partners For Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/39, distr. gen. on 16 September 2020, p. 1.
[16] HRC, Written statement submitted by Americans for Democracy & Human Rights in Bahrain Inc, a non-governmental organization in special consultative status, A/HRC/45/NGO/18, distr. gen. on 2 September 2020, p. 4.
[17] HRC, Written statement submitted by Partners For Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/38, distr. gen. on 21 September 2020, p. 2.
[18] Ibid., p. 3. HRC, Written statement submitted by Partners For Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/39, distr. gen. on distr. gen. on 21 September 2020, p. 2.
[19] HRC, Situation of human rights in Yemen, including violations and abuses since September 2014, Report of the detailed findings of the Group of Eminent International and Regional Experts on Yemen, A/HRC/45/CRP.7, distr. gen. on 29 September 2020, pp. 22-23, para. 69; UNSC, Final report of the panel of experts on Yemen, S/2018/594, distr. gen. on 26 January 2018, p. 49, para. 176; Human Rights Watch, “Yemen: 3 Months Since Houthis ‘Disappear’ Protesters: Ex-Detainees Describe Mass Arrests, Torture in Ibb”, 16 January 2016, at https://www.hrw.org/news/2016/01/17/yemen-3-months-houthis-disappear-protesters.
[20] HRC, Written Statement submitted by Partners for Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/38, distr. gen. on 21 September 2020.
[21] HRC, Written Statement submitted by Partners for Transparency, a non-governmental organization in special consultative status, A/HRC/45/NGO/38, distr. gen. on 21 September 2020, p. 3.
[22] UNSC, Final report of the panel of experts on Yemen, S/2018/594, distr. gen. on 26 January 2018, pp. 49-50, paras. 173-7.
[23] UNSC, Final report of the panel of experts on Yemen, S/2018/594, distr. gen. on 26 January 2018, p. 21-4, paras. 66-76.
[24] See, UN Human Rights Council, Situation of human rights in Yemen, including violations and abuses since September 2014, Report of the United Nations High Commissioner for Human Rights containing the findings of the Group of Independent Eminent International and Regional Experts, 17 August 2018, para. 14.
[25] HRC, Implementation of technical assistance provided to the National Commission of Inquiry to investigate allegations of violations and abuses committed by all parties to the conflict in Yemen, Report of the United Nations High Commissioner for Human Rights, A/HRC/45/57, distr. gen. on 2 September 2020, p. 3, para. 12.
[26] For ex., Christian J. Tams, “Self-Defence against Non-State Actors: Making Sense of the “Armed Attack” Requirement” in Mary Ellen O’Connell, Christian J. Tams and Dire Tladi, Self-Defence against Non-State Actors (2019; CUP), pp. 90-173.
[27] See, for instance, Jean d’Aspremont, “Rebellion and State Responsibility: Wrongdoing by Democratically Elected Insurgents”, International & Comparative Law Quarterly, 2009, Vol. 58, No. 2, pp. 427-442, p. 430.
[28] UNSC, Final report of the panel of experts on Yemen, S/2018/594, distr. gen. on 26 January 2018, p. 10, para. 21 and Annex 8, p. 69.
[29] OHCHR, Report of the United Nations High Commissioner for Human Rights on the question of human rights in Cyprus, A/HRC/25/21, distr. gen. on 22 January 2014, p. 5, para. 11; European Court of Human Rights, Loizidou s. Turkey, App. No. 15318/89, Judgment (Gr. Ch.) of 18 December 1996, paras 45-6.
[30] See, UN Human Rights Committee, General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 1994, para. 8.
[31] HRC, Situation of human rights in Yemen, including violations and abuses since September 2014, Report of the detailed findings of the Group of Eminent International and Regional Experts on Yemen, A/HRC/45/CRP.7, distr. gen. on 29 September 2020, p. 11, para. 29 and fn 15 and pp. 20-21, paras. 82-83.
[32] UNGA, Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/25/65, distr. gen. on 12 February 2014, distr. gen. on 12 February 2014, Annex IV “Without a trace: enforced disappearances in Syria”, p. 37, paras. 5-6; HRC, Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/19/69, distr. gen. on 22 February 2012, p. 20, para. 106.
[33] HRC, Situation of human rights in Yemen, including violations and abuses since September 2014, Report of the detailed findings of the Group of Eminent International and Regional Experts on Yemen, A/HRC/45/CRP.7, distr. gen. on 29 September 2020, p. 12, para. 32 and fn 19.
[34] Annyssa Bellal and Ezequiel Heffes, “‘Yes, I do’: A Binding Armed Son-State Actors to IHL and Human Rights Norms through their Consent”, Human Rights and International Legal Discourse, 2018, Vol. 12, No. 1, pp. 120-136, at https://www.hrild.org/en/journal/hrild/12-1/yes-i-do-binding-armed-non-state-actors-to-ihl-and-human-rights-norms-through-their-consent/index.html#page/120/search, p. 121.
[35] Ibid., p. 122.
[36] Ibid., pp. 124-127.
[37] Ibid., p. 128.
[38] UNSC, Final report of the panel of experts on Yemen, S/2018/594, distr. gen. on 26 January 2018, p. 21-4, paras. 66-76.
[39] Bellal and Heffes, “Yes, I do”, precited, p. 129: “Generally, views on why ANSAs are bound by IHRL have focused on their relationship with the territorial State. This has been justified by Fortin in relation to the principle of effectiveness, which requires ‘not only other authority which claims to exercise, or actually exercises, powers which usually belong to the State’.”
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