The Jus ad Bellum and the Airstrikes in Yemen: Double Standards for Decamping Presidents?

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A democratically elected president has lost control of his country and fears for his safety. He flees and seeks refuge in a more powerful neighbouring State. He writes a letter as the legitimate President, inviting his host State to take military action against the insurgents who have forced him into exile. The host State does so. Will such a situation meet with condemnation or support from the international community? Does it depend on whether the President’s name is Yanukovych or Hadi, and the intervening State is Russia or Saudi Arabia?

Russia’s Sputnik news agency has been quick the draw the parallels between the Russian intervention in Ukraine in 2014 (the jus ad bellum aspects of which have previously been discussed on this blog, including by myself – see here, here and here) and the continuing Saudi-led intervention in Yemen in 2015, seeking to highlight the divergent reaction to two seemingly very similar situations to skewer alleged Western hypocrisy. In contrast, the US State Department’s spokesperson, Marie Harf, denied the parallels between the two cases when quizzed about the issue at a press briefing:

QUESTION: … People have been asking why is it that the president, the Yemeni president, who fled from his capital, remains legitimate in your eyes.

HARF: Well, I think —

QUESTION: Whereas, like another president who fled. (Laughter.) […]

. . .

HARF: It’s completely different.

QUESTION: My question is the same. The similarities between the two cases are striking.

HARF: In that there aren’t many? […]

QUESTION: There are a lot, I think, but anyways —

HARF:Okay. We can agree to disagree.

This blog post is a tentative exploration of the issues raised by a comparison of the two cases. Are there clear standards for identifying the government of a State, for the purpose of determining who can validly consent to military action on the State’s behalf, or are these standards malleable enough that powerful States can produce whatever legal outcome they want? Before I get to the issue of ‘intervention by invitation’, however, I will provide some factual background to the current events in Yemen.

Context: Long-Running Insurgency, Failed Transition

The origins of the situation in Yemen are complex. The country is divided along sectarian lines (between Sunnis and followers of Zaidi variant of Shi’a Islam) and between north and south (which before 1990 were separate states). Various insurgent groups have been active in the country over the past decade, including southern secessionists and Al-Qaeda in the Arabian Peninsula (now challenged by its rival Sunni jihadist organisation, Islamic State). However, the most successful insurgents have been the Houthis, a group drawing its support from the Zaidi population. In these already turbulent circumstances, the Arab Spring erupted in 2011 and the long-serving autocrat, Ali Abdullah Saleh, was eventually forced to resign. He was succeeded by his Vice-President, Abd Rabbuh Mansur Hadi, who won an uncontested election (boycotted by the Houthis) in 2012.

Since then, there has been a Security Council-endorsed process to try to bring together the various factions (with the obvious exception of Al-Qaeda) to participate in a peaceful political transition.  However, the Houthis, having made an alliance with forces loyal to former President Saleh, continued to fight and by September 2014 had taken control of much of Sana’a, the capital. Against this background, a peace deal was signed in late 2014 to form a unity government with Houthi representation in the cabinet. However, in early 2015 the Houthis broke the deal, arrested President Hadi and forced his resignation, dispersed the legislature, and formed a new government of their own, the ‘Revolutionary Council’. Hadi managed to escape to the southern city of Aden, where he retracted his resignation and condemned the Houthis’ actions as null and illegitimate. However, as pro-Houthi forces closed in on Aden in late March, he fled to Yemen for Saudi Arabia. On arrival, he appealed for military intervention from Saudi Arabia and its allies in the Gulf Cooperation Council (the United Arab Emirates, Bahrain, Qatar, and Kuwait).

Since late March, these States, supported by Egypt, Morocco, Jordan, and Sudan, have been undertaking airstrikes against the Houthi forces which are in control of much of the country. This intervention has been endorsed by the Arab League and has received support from Western countries such as the United States (which has been providing logistical and intelligence assistance), the United Kingdom, France and Canada. Others, including the European Union’s High Representative for Foreign Affairs, Russia, and China, have appeared more critical, expressing their concern at the use of force and calling for a political solution. On April 14, the UN Security Council passed a resolution (with Russia abstaining) demanding the Houthis abandon violence and imposing an arms embargo on them (and on the forces of ex-President Saleh, who is supporting them). The resolution, while calling on all Yemeni parties to return to dialogue, did not contain any clear criticism of the Saudi-led airstrikes. Although on April 21 a Saudi spokesman announced that the military operation had achieved its objectives and would end (a decision welcomed by the White House), the airstrikes have in fact continued since then.

One state clearly condemning the airstrikes as illegal aggression is Iran, which is widely considered to be aligned to the Houthis and which has been accused of providing them with arms, training and other support (Iran denies sending arms). The Prime Minister of (Shia-dominated) Iraq has also been very critical, stating that ‘the problem of Yemen is within Yemen’ and that ‘[t]he idea that you intervene in another state unprovoked just for regional ambition is wrong.’

Legal Justifications for the Airstrikes

Most States appear to be either supporting the airstrikes or to be expressing concern while refraining from directly condemning them as illegal. But how are the States which support the intervention justifying it under international law? As Ashley Deeks, in one of the few contributions to the international law blogosphere on the subject, has noted (for other relevant blog posts, see here and here) there has been relatively little analysis of the legal issues involved, either by States or by the media. The one document providing some sustained explanation of the legal basis for the airstrikes is the written statement provided to the Security Council by the five participating States of the Gulf Cooperation Council (S/2015/217). This quotes a letter from Hadi requesting military intervention, while also giving other reasons to justify the use of force.

Three potential legal bases for the use of force in Yemen can be discerned from the statement: i) the request for intervention from the legitimate President, ii) pre-emptive self-defence against the threat posed by the Houthis to Saudi Arabia and the whole region, and iii) collective self-defence of Yemen against the Iranian-supported Houthis. The self-defence claims appear weak: there has been no armed attack on Saudi Arabia emanating from Yemen, nor is one imminent, and despite President Hadi’s invocation in his letter of Article 51 of the UN Charter, the Houthi insurgency cannot be conceptualised as an external armed attack on Yemen, even if it is accepted that the Houthis are receiving significant military support from Iran (a matter of some dispute). Therefore, the rest of this blog post will focus on the most promising legal justification for the airstrikes: as an instance of use of force against non-State actors on the request of the territorial State.

Intervention by Request and the Problem of Legitimacy

The Gulf States’ statement emphasises that they are ‘responding to President Hadi’s appeal to protect Yemen…’ It is generally acknowledged that the consent of the government of a State can legalise the use of force by another State on its territory, since such force does not constitute inter-State force falling within the scope of the prohibition in Article 2(4). However, there are at least two potential problems with the reliance on Hadi’s consent: the fact that the use of force is occurring in a civil war situation, and the fact that Hadi lacks effective control of the country, having fled to Saudi Arabia before making the request for intervention, raising the question of whether he can validly consent on behalf of the Yemeni State.

The first issue can be dealt with relatively quickly. It is a debated issue whether there is a customary law prohibition on assistance to a government which is facing a civil war: for more details, and for contrasting viewpoints (including my own), see here and here.  This prohibition is argued to follow from the principles of non-intervention and self-determination: on this view, military assistance to either side in a civil war interferes with the ability of the state and its people to determine its/their own future. However, even accepting the existence of such a prohibition, it is widely acknowledged there must be an exception allowing military assistance to the government where the rebels are receiving support from outside the State – in other words, to ‘counter’ an existing illegal intervention. Both Hadi’s letter and the Gulf States’ statement emphasise the role of ‘regional powers’ and ‘outside forces’ in supporting the Houthis, and Hadi’s article in the New York Times justifying the strikes heavily focuses on the alleged role of Iran. Assuming that the Houthis are indeed receiving arms and other support from Iran, that criterion would seem to be met here, although questions of whether such ‘counter-intervention’ needs to be proportionate to the intervention on the other side might then be asked – issues which, as Claus Kreß has pointed out in a recent article, are not well-explored in the literature on this topic.

The more fundamental concern is whether Hadi still has the legal capacity to consent to force on Yemen’s behalf. As the facts indicate, pro-Houthi forces had driven him out of Sana’a and then of Aden and of Yemen as a whole before he requested military assistance. If the test which determines a State’s government for international law purposes is the effective control of its territory, Hadi would appear to have lost it. As mentioned above, his situation would not appear to be different from that of Yanukovych in Ukraine in 2014, who had also lost effective control and fled his country’s territory by the time he requested intervention. If instead of effective control, constitutional or democratic legitimacy is emphasised as the basis for governmental recognition, Yanukovych, like Hadi, was democratically elected, and his removal was also contrary to the Constitution in force, and to an internationally-brokered compromise agreement previously made between him and the opposition (the Ukrainian interim agreement of 21 February 2014).

Official attempts to distinguish the two cases have appeared somewhat unconvincing. In the press briefing mentioned above, the US State Department spokesperson first attempted to claim that Hadi, unlike Yanukovych, had not ‘fled’, and then (perhaps somewhat more promisingly) argued that the Houthis were an ‘armed rebel group’.  This was presumably intended to contrast them with the Ukrainian opposition, seen as peaceful civilian protesters. However, one can query whether this factor can be decisive. After all, surely in some circumstances groups which have resorted to organized armed action against an oppressive government can still be seen as being legitimate.

It is submitted that a more rigorous analysis is needed to determine whether the situations in Ukraine and Yemen can be distinguished. Four main arguments for distinguishing Hadi’s situation can be suggested: i) qualifications to the effective control principle allowing a preference for established governments, ii) the duty of non-recognition of situations created by serious breaches of jus cogens; iii) various arguments that Hadi retained greater constitutional, democratic and representative legitimacy vis-à-vis the Houthis, in contrast to Yanukovych vis-à-vis the then Ukrainian opposition, particularly because Yanukovych, unlike Hadi, was repudiated by the legislature, iv) the brute fact that Hadi, unlike Yanukovych, continued to be recognized as President by the international community.

Firstly, the effective control test for recognition has arguably always been subject to caveats to reflect a certain preference for the previously established government. Lauterpacht, writing in 1947, stated that a lawful government ‘is entitled to continued recognition de jure so long as the civil war, whatever its prospects, is in progress. So long as the lawful government offers resistance which is not ostensibly hopeless or purely nominal, the de jure recognition of the revolutionary party as a government constitutes premature recognition…’ Applying this test, at the time Hadi fled Yemen, pro-Hadi forces appear to have still been in control of a significant portion of the country.  However, it is unclear whether this distinguishes him from Yanukovych – this would depend on the extent to which Yanukovych was still acknowledged as President in Russian-speaking parts of Ukraine at the time he requested Russian intervention.

Another possible argument is that, if a government loses effective control of a country as a result of a serious breach of jus cogens, international law requires that it continue to be recognized (see Article 41 of the ILC Articles on State Responsibility). If Iran has committed a serious breach of the prohibition on the use of force by arming and training the Houthis, this argument might be potentially made here – although it could be questioned whether Iran’s conduct rises to this standard, especially considering the lack of clarity about the level of Iranian involvement. Despite these doubts, this argument would seem to be a stronger basis for the continued recognition of an ineffective President in the case of Yemen than in Ukraine; although Russia alleged Western intervention on the side of the Ukrainian opposition against Yanukovych, the alleged facts (that Western States ‘encouraged’ the opposition) seem less likely to have constituted a serious breach of jus cogens. However, utilising this argument in the context of recognition of governments raises complex questions of causation.

In any case, States’ actual arguments for the continued recognition of Hadi government have focussed on its continued democratic and constitutional ‘legitimacy’: see the repeated references to Hadi’s legitimacy in the April 14 Security Council debate. Sceptics could easily question Hadi’s democratic legitimacy – he was elected as the sole candidate in an uncontested election. However, legitimacy in troubled states seems to be to a large extent a comparative quantity – one side’s claim to it may well be imperfect, but the key question may be whether it is better than the alternative. Hadi’s position vis-à-vis the Houthis does seem to be stronger than Yanukovych’s vis-à-vis the then Ukrainian opposition. Yanukovych was repudiated by a large majority of the democratically elected Ukrainian legislature (although not the constitutionally required three-quarters majority), which then went on to elect a new interim Government. The Houthis, on the other hand, closed down the Yemeni legislature, and the Houthi ‘Revolutionary Committee’ cannot claim the support of any pre-existing democratic institutions.

Other potential contrasts are somewhat murkier. To the extent such matter can be determined from the outside, it appears that the Houthis, rather than Hadi, are responsible for violating the road map to political stability repeatedly endorsed by the Security Council (see for example here and here).  The Houthis agreed to a power-sharing deal in late 2014, only to renege and stage a coup d’état. The fact that Hadi appears to have observed the agreement, while the Houthis appear to have broken it, increases his claim to legitimacy. However, one could question whether the situation in Ukraine was relevantly different – the February 21 interim agreement, witnessed by the Foreign Ministers of Poland, France and Germany, envisaged Yanukovych staying on as President until early elections. Here, a factual lack of clarity muddied the waters – it was disputed (for example, at this Security Council meeting) whether the deal had first been broken by the then opposition, elements of which were determined to ensure Yanukovych’s immediate departure, or whether it had been broken by Yanukovych, who was alleged to have refused to comply with its terms. Other possible arguments to distinguish the two cases to mention briefly are the accusations that Yanukovych committed serious human rights abuses  (while in Yemen accusations of breaches of human rights appear to have been more commonly directed against the Houthis) and the US State Department spokesperson’s implied contrast between the Houthis as an ‘armed group’ and the Ukrainian opposition as ‘civilian’ protesters.

However, there is room for scepticism about whether, considering the wide range of factors which can be adduced to assess the legitimacy of a government, there is a sufficiently clear, objective test to conclusively determine the issue in cases of dispute. In many cases, the legitimacy of a government will be in the eye of the beholder. It is arguable that, in the end, it is international recognition that is the decisive factor. This Hadi clearly retains: in the resolution it passed on April 14, the Council ‘reaffirm[ed] its support for the legitimacy of the President of Yemen…’  In contrast, Yanukovych had lost the recognition of the bulk of the international community by the time he requested Russian intervention.

The worry about accepting such a constitutive theory of recognition in this context that it seems to undermine the objectivity of the law on the use of force, leaving it open to double standards: force will be legal in one scenario and illegal in a factually very similar one, depending on the attitude of the international community. But the application of double standards on the basis of international consensus is arguably already a fundamental feature of the jus ad bellum: the wide discretionary power of the Security Council to legalise force under Chapter VII can also be criticised on this basis. In any case, one thing does appear clear from the Ukraine and Yemen precedents: questions of governmental recognition are likely to remain highly relevant in international legal debates about the use of force.  

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Jordan says

April 30, 2015

One should not attempt to approach these issues in a legalistic manner that ignores legal policies at stake, such as "self-determination" of a people (not a govt.). Merely because a president was democratically elected does not mean that such an elite will necessarily continue to represent authority or self-determination in a given country. Further, merely because a govt. is fighting in a civil war, one must not assume that, therefore, any intervention in support of the government is necessarily contrary to self-determination. It could be that the "belligerent" is an entity like ISIS and that the government still represents authority and self-determination of the majority of the people. States have a duty under the Charter to take joint and separate action to achieve universal respect for and observance of human rights as well as self-determination. see UN Charter, arts. 55 and 56, plus art. 103 (override of other ordinary agreements).
P.S. consider also the fact that Pres. Endara was lawfully elected by the Panamanian people and that the dictator Noriega refused to step down. One of the U.S. claims regarding use of U.S. military related to consent from the Pres. as well as the support of democracy.
Further, UN 2(4) facially only prohibits three types of use of force.

Heiko says

May 1, 2015

I agree that the former president of the Yemen is not better than the former president of the Ukraine. IMHO he even gave his "power" to the Houthis at one moment and they did set him free or something.

But I also agree with Jordan, that there is no restriction of foreign intervention in the case of a civil war. This is what the US did yall the time in South America and I would doubt that there is any new PIL on that, Assad would be a case. It wouldnt matter who it is. ISIS or not is just a political question and who is "ISIS" anyway? If we would support Assad and reconstruct Saddams army... Well, if we could reconstruct all that was destroyed by Bremer...

Ralph Janik says

May 2, 2015

Jordan, as far as I remember from having read Gray's Use of Force, the US relied on Endara's request as a policy argument but refrained from framing its Panama operation as an intervention by invitation? Or would you say that one should not be so strict in drawing the line?
well, going back to the classic debate, huh? Nicaragua (intervention on behalf of the government is ok) vs. the IDI (no intervention accept against terrorist enemies - but then again, the old question as to who is a terrorist comes up).

Jordan says

May 4, 2015

President Bush's Report to Congress stated that "[I]n the early morning of December 20, 1989, the democratically elected Panamanian leadership announced formation of a government, assumed power in a formal swearing-in ceremony, and welcomed the assistance of U.S. Armed Forces in removing the illegitimate Noriega regime. The deployment of U.S. Forces is an exercise of the right of self-defense.... It was welcomed by the democratically elected government of Panama."
We had two panels at the annual meeting of the ASIL on use of force and on presidential powers (84 Proc., Am. Soc. Int'l L. 182, 236 (1990). There was also an Agora in the AJIL, 84 Am. J. Int'l L. 494 (1990).

Kriangsak Kittichaisaree says

May 7, 2015

On 5 May 2015, the UN Legal Counsel/UN Undersecretary General for Legal Affairs made an oral report to the International Law Commission on the work of his Office during the past 12 months.

He 'confirmed' that the UN had taken the legal position that collective self-defence under Art. 51 of the UN Charter applied to the situation in which Iraq had been under attack by ISIL, and as a basis for the military intervention in Yemen at the request of the incumbent Govt. in Yemen.

I asked him to explain why Art. 51 was applied to armed attacks by non-State actors (ISIL) and how international law now permitted external armed intervention in NIAC at a request of one of the parties to the NIAC, but he declined to elaborate further. Three other ILC members joined me in pressing him for the answers, but without any success. He merely said that this was not a formal written legal opinion, and that the UN worked like this (i.e., without having a formal legal opinion) approx. 80% of the time.

Since the 5 may 2015 ILC meeting was open to the public, I see no harm in sharing the above info with you.

Dapo Akande says

May 8, 2015

Dear Kriangsak,

Thanks very much for sharing this. When the UN Legal Counsel said that collective self-defence is applicable with respect to Iraq and ISIS, was this in relation to the use of force by foreign states against ISIS in Syria or the use of force against ISIS in Iraq?

If the latter, I was wondering whether there was an explanation given as to why self-defence was needed given the consent of the Iraqi government. The question is perhaps even more pertinent with regard to Yemen. Why is there a need for self-defence when there is consent of the govt of Yemen (assuming that the President who gave consent remains the head of State)?

Arguably, self -defence is only relevant when there the state using force (US and others in Iraq; Saudi Arabia and others in Yemen) is acting potentially in breach of Art. 2(4) of the UN charter. However, where the state on whose territory force is used (Iraq & Yemen) consents, there is no breach of Art. 2(4) of the Charter and thus one doesn't even get to self-defence.

If the point was being made in relation to the use of force in Syria, I can see more easily how the issue arises.

Kriangsak Kittichaisaree says

May 8, 2015

Dear Dapo,

The statement by the UN Legal Counsel on these points was very brief.

I have checked my note: collective self-defence under Art. 51/UN Charter to protect Iraq against ISIL; and collective self-defence under Art. 51/UN Charter against the 'insurgents' in Yemen at the request of the incumbent Govt. in Yemen.

I cannot speak for my ILC colleagues who pressed the Legal Counsel for clarification, but we seemed to see the issues differently from what you posted above.

We wondered why Art. 51 could be applied: (a) in the case of Iraq, to non-State actors (ISIL), contrary to the ICJ jurisprudence (according to Prof. Nolte, in the Wall advisory opinion and in another case (DRC Congo v. Uganda?)); and (b) in the case of Yemen, to the 'insurgents' who were one of the parties to the NIAC in Yemen. Could it be assumed that there was foreign military intervention in the armed conflict in Yemen which had thereby 'internationalized' the conflict, and that the collective self-defence was directed against the foreign military forces and the 'insurgents' who were in fact their proxies/agents? No clarification was given, however.

Dr. Elena Cirkovic says

May 9, 2015

Thank you for your post. While many legal questions remain unanswered, we cannot do service to the situation without a careful appreciation of the context. The usual legal approach is: yes but what is the law. However, in this case, there is almost no law. Moreover, the main question of the article appears to be "legitimacy" of invitation. Houthis have their own claims regarding legitimacy, cannot be easily disregarded. In this sense, the "non-state actor" legitimacy is perhaps the greatest challenge, which we also found in Syria etc.
I wonder if I could direct you to this brilliant and careful analysis of the current situation and the broader political implications for the region: