Introduction
In the wake of Israel’s air and ground offensive following the 7th October Attacks, Houthi Movement, backed by Iran, has begun targeting shipping lanes in the Red Sea, explicitly to cripple Israeli economy, leading to disruptions of global shipping routes. The fallout of the Houthi campaign was swift and far-reaching, as it has forced major companies to reroute traffic away from the Red Sea..
This article examines the legal ramifications of this crisis by scrutinizing their targeting of civilian vessels under International Humanitarian Law (IHL) and its implications for international principles and global security. The article attempts to characterize the nature of the present conflict, arguing that the conflict has moved beyond the realm of a Non-International Armed Conflict (NIAC) and instead has acquired the nature of an International Armed Conflict (IAC). On the basis of this characterization, it delves into the responsibility of the Organization under International Humanitarian law, pointing out various violations of IHL principles in their conduct. Finally, the paper shall argue for strict compliance of current United Nations Security Council Resolutions governing the present conflict while also emphasizing on the need to find a long term solution through the resolution of the Yemeni Civil War.
Background
The Houthi Movement is a Shia Zaidi fundamentalist organization who took control and exercised de-facto control over large parts of Northern Yemen in its deadly civil war. As a self-declared member of Iran’s anti-western “axis of resistance”, the group has responded to Israel’s action in Gaza post Hamas’s 7th October Attacks by attacking Israeli targets.
The group expanded their campaign targeting shipping lanes traversing the strait of Bab-ell-Mandeb, beginning with the hijacking of Galaxy Leader. This came following an announcement by a Houthi spokesperson that it plans to target all vessels linked to Israel. Following these attacks, major shipping companies have suspended shipping traffic through the Red Sea, forcing them to reroute their traffic through the Cape of Good Hope and crippling global trade.
The United States and the European Union responded to the crisis by launching their multi-national military operations in response. Furthermore, in January 2024, the United States and United Kingdom launched retaliatory strikes against Houthi Targets. The United Nations Security Council (UNSC), through the adoption of Resolution 2722, condemned Houthi actions and demanded the group to immediately cease their attacks.
Characterization of Houthi Actions under Laws Governing Armed Conflicts
Characterization as a Non-International Armed Conflict
To determine the applicability of IHL to the current crisis, it must be determined whether it comes under the definition of an Armed Conflict, especially NIAC. Though Common Article 3 (CA3) of the Geneva Conventions, which governs NIACs, does not provide an substantial definition of Armed Conflict but Article 1(1) of Additional Protocol II (AP II, does. It states that AP II applies to all armed conflict not covered by Article 1 of Additional Protocol I (AP I) taking place in the territory of a high contracting party between (1) it’s armed forces and (2) dissident armed forces or (3) other organized armed groups under responsible command, who exercise such control over its territory which enables them to carry out “out sustained and concerted” military operations and who have the ability to implement AP II. Article 1(2) further states that “internal disturbances and tensions”, including riots and sporadic acts of violence, shall not be classified as armed conflicts. In Prosecutor v. Tadic, the International Criminal Tribunal for the Former Yugoslavia (ICTY) defined an armed conflict vis-à-vis CA3 in the following words:
“…an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”
Similarly, under Article 1 of AP II, ICTY held that the test to identify the existence of an armed conflict is that of “the intensity of the conflict and the organization of the parties to the conflict”. Therefore under this definition, the involvement of the Houthi forces, who are under a responsible command, fulfils the test.
In Prosecutor v. Haradinaj et al, the ICTY held that the factors to assess intensity of the conflict includes the severity and escalation of attacks, territorial and temporal spread of clashes, involvement of government forces, UN Security Council engagement, displacement of civilians, types of weapons used, and the extent of destruction and casualties. Additionally, considerations include the presence of heavy weapons, blockades or sieges, changes in front lines, occupation of territory, international cease-fire efforts, and the overall intensity and duration of violence, including its impact on armed forces and material destruction.
Considering these factors, it can be established that Houthi Attacks in the Red Sea fulfils the necessity of requisite intensity due to the number of attacks and its territorial spread; adoption of UNSC Resolution 2722 demanding cessation of Houthi; the employment of complicated sophisticated anti-shipping weapons; and the crippling of Red Sea trade route.
Characterization as an International Armed Conflict
Under Common Article 2 of the Geneva Convention, an International Armed Conflict (IAC) refers to cases of declared war or any other armed conflict between two high contracting parties, even if one does not recognize it. Additionally, the article recognizes partial or total occupation of a contracting party’s territory even if it does not provide any armed resistance.
The ICTY in Tadic case laid down that when a NIAC becomes an IAC, or depending on the circumstances, acquire an international characteristic while being a NIAC through (i) the intervention of another state with its troops or (ii) if the participants act on behalf of another state. With regards to point (i), it is probable that foreign intervention has taken place through the alleged presence of Iranian Revolutionary Guard troops assisting Houthi forces in Yemen, without the definite permission of the recognized government of Yemen
With regards to point (ii), it is necessary to understand when attribution of an armed group’s conduct to a state takes place under international law. In Nicaragua v. United States of America, the International Court of Justice (ICJ) established the Effective Control Test. This has been succinctly stated in Article 8 of International Law Commission’s Report on Responsibility of States for Internationally Wrongful Acts , based on the judgement in Nicaragua Case, which declares the group’s conduct to be attributable if such group was “acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”
However, the ICTY in the Tadic case, held the Effective Control Test to not be persuasive as it failed to see the requirement of “a high threshold for the test of control” for every situation considering the variable degree of control in each factual situation. The tribunal further noted that while such a strict test may be necessary to attribute state responsibility for an individual or group that is not militarily organised, in cases where it exercises control over organized armed forces or militias, such control is likely to be of an overall character exceeding mere financial or material assistance. or training. On the basis of this, the ICTY established the Test of Overall Control to determine state attribution, which states:
“In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity.”
The International Court of Justice rejected the Overall Control in Bosnia and Herzegovina v. Serbia and Montenegro, as it was ill suited “ for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State’s organs and its international responsibility.”. It instead applied the requirements of Article 8. It further stated that the state’s instruction must correspond to each and every operation under the alleged violation and not be of a general nature.
Attributing responsibility to Iran for Houthi actions is warranted under IHL. Iran’s substantial military and financial aid, coupled with training, underscores its role, especially considering the interception of Iranian weaponry by the US in February 2024. Recent reports have also indicated that the United States has conducted cyberattacks on an Iranian vessel, the MV Behshad, which had been allegedly collecting intelligence in the Red Sea. Western officials further assert that an Iranian ship is providing real-time intelligence to Houthi forces, enabling precise targeting of cargo vessels, without which Houthis could not undertake their attacks due to their alleged lack of radar technology. Iran’s intelligence support to the Houthis, considering their difficulty in identifying targets, effectively amounts to directing attacks, as they are cognizant of the fact that the intelligence it furnishes to the Houthis converts the vessels into sole entities capable of being singled out for targeting.
Responsibility under International Humanitarian Law
CA3 mandates parties to a NIAC to, at the minimum, follow a certain set of provisions for the humane treatment and protection of persons not taking part in hostilities, including prohibition against “violence to life and person, in particular murder of all kinds” and “taking of hostages”.
In Tadic case, the ICTY case upheld the application of customary international law to NIACs, and further stated that CA3 covers its gambit, violations of the Hague Law on international conflicts; contraventions of the Geneva Convention excluding those constating “grave breaches”; breaches of customary rules; and binding agreements between parties to a conflict as per of treaty laws.
One of the cardinal principles of Customary International Law is that of Distinction, as also outlined in Article 48 of Additional Protocol I (AP I), which requires parties to an armed conflict to distinguish between (1) civilian and combatants; and (2) civilian object and military objects, while requiring their attacks to be directed against “military objectives. ”. Article 50 of AP I essentially defines civilians as those falling outside the definition of combatants provided in Article 4 of the Third Geneva Convention (GC III) and Article 43 of AP I and therefore includes crews of merchant ships under this definition. CA3 additionally prohibits violence against non-combatants and hostage-taking.
The San Remo Manuel, which serves “contemporary restatement of international law applicable to armed conflicts at sea”, is also applicable to the current crisis. It also adopts the principle of distinction, mandating parties to solely target military objectives. The manual categorises merchant vessels as civilian objects unless they meet the definition of military objective specified in paragraph 40. It defines the term as objects that, due to their nature, location, purpose, or use, significantly contribute to military action and whose neutralization proves a “definite military advantage”. Paragraph 60 outlines when merchant vessels become military objectives, including: supporting enemy forces; participating in enemy intelligence operations; sailing under enemy protection; resisting capture; being armed; or carrying military materials.
The Houthis have maintained that their operations are targeted against Israel, with the aim to prevent Israeli ships from using the Arabian or Red Sea. In particular, they have announced that they will be targeting all ships carrying the Israeli flag, being operated by Israeli Entities or owned by Israeli companies, whether or not they are legitimate military objectives. In November 2023, the group captured an Israeli-linked cargo vessel, the Galaxy Leader and held its 25 crew members hostage. In March, 2024, the group killed 3 civilian seafarers through a missile strike on the True Confidence, a Greek-operated bulk carrier carrying the flag of Barbados. The Houthis have, as of 8th March 2024, have targeted 43 vessels out of which 21 have suffered direct strikes, all of them being merchant ships.
These actions violate customary IHL, and provisions of the Geneva convention, including CA3 and the San Remo Manual. Houthis have deliberately failed to distinguish between Civilian and Military objects declaring all Israeli ships, regardless of their character, to be their legitimate targets and furnished no evidence of presence of military targets within these vessels. Many of the ships targeted had no links to Israel, and even if they did, they would not meet the criteria of military objectives laid down in Paragraph 60 of the San Remo Convention. Furthermore, Houthi actions, especially with regards to Galaxy Leader, represent a definite breach of CA3 as it prohibits the use of violence against and taking of hostages of non-combatants.
Conclusion
The Houthi’s indiscriminate targeting of Red Sea shipping lanes without any justifiable military gain is a flagrant breach of IHL and requires an immediate international response. The passage of UNSC Resolution 2722, has, by authorising member states to defend their vessels from such attacks, provided legal justification for armed response. However, narrowing the scope of International Response to just the Houthis ignores their primary enabler, Iran. While previous Iranian support did not meet the threshold of attribution of state responsibility required by International law, current Iranian activities, through the putative presence of Iranian intelligence vessels feeding Houthis the information required to conduct their strikes, may meet the test of effective control. Considering this complicity, it is incumbent on the international community to follow up the provisions of UNSC Resolution 2216, which had imposed arms embargo on the Houthis, and force member states from supporting Houthi effort to cripple international trade. Addressing individual violations themselves, on the other hand, may be difficult, as Yemen is yet to ratify the Rome Statute, therefore excluding the Jurisdiction of the International Criminal Court. However, as the civil war progresses towards a potential resolution, it may be time to set up an international tribunal akin to the ICTY and International Criminal Tribunal for Rwanda (ICTR) to persecute violations of IHL that have taken place during the Red Sea Crisis and the wider Yemeni Civil War.
Shushrut Devadiga and Asha Anandkumar are fourth year law student at NMIMS Kirit P. Mehta School of Law, Mumbai.
The image is AI generated using ChatGPT 4 with the prompt “Enhanced scene with UNSC officials round-table meeting with sea dispute in background”.
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