As noted by Alex Whiting in his piece last week, the law of armed conflict, or international humanitarian law (IHL), contains broad principles and prohibitions that are applied to a set of concrete facts in the context of any armed conflict. This analysis happens both ex ante—as a target set is being identified and an attack is launched—and ex post—when a completed operation is being evaluated for its compliance with IHL, including the war crimes prohibitions.
The Saudi-led coalition’s August 11 attack on a bridge in Yemen helps to exemplify the difficulty in applying these concepts to real-world examples. The details of the attack remain rather sparse (some of the best reporting on this topic is here). What we do know is that the bridge in question was located on the main road from the port city of Hodeidahto the capital of Sanaa. In addition, we know, and presumably the attackers also knew, that an enormous amount (90% to be exact) of the food coming from the U.N. World Food Program and other humanitarian actors apparently traversed that bridge en route to civilians in need. This food aid is helping to keep the Yemeni civilian population alive: over half of the country’s population (14 million souls) are suffering from malnutrition and food insecurity. According to UNICEF, more than 300,000 children under the age of 5 have acute malnutrition, which can lead to death and long-term developmental, cognitive, and other impairments. It’s been reported that the United States considered the bridge to be a piece of vital infrastructure and thus included it on a “no strike” list. The State Department has accordingly denounced the attack:
We have seen those reports, and if the bridge was deliberately struck by coalition forces, we would find this completely unacceptable. The bridge was critical for the delivery, as you note, for humanitarian assistance. Destruction will further complicate efforts to provide assistance to the people of Yemen.
The spokesperson later clarified that her statement was meant to be a “condemnation”—strong language when it comes to international diplomacy. At the same time, she also rebuked the most recent (of many) Saudi attack on a Médecins sans Frontières hospital. The International Committee of the Red Cross and Amnesty International, among others, have blamed Saudi Arabia for deliberately targeting hospitals and medical facilities since that country first overtly intervened in the conflict in March 2015.
This post walks through the analysis necessary to evaluate the attack on the bridge and concludes that the attack in question should have been precluded had the attackers respected the principle of proportionality in light of the facts as we know them. The post concludes with a quick discussion of the potential war crimes that could be charged depending on the facts that emerge and other legal implications of the attack.
International Humanitarian Law Principles
The key concepts for evaluating the legality of the destruction of the bridge are found inAdditional Protocol I to the four Geneva Conventions of 1949. Unlike its “parent” treaties, API has not yet achieved universal ratification (there are 174 members at present, including Saudi Arabia), but many of its terms are considered to be part of customary international law (CIL) by the International Committee of the Red Cross (ICRC), states parties, and even non-party states. Although API by its terms applies to international armed conflicts, many the most important rules apply across the conflict spectrum by way of CIL and appear in other IHL treaties addressed to non-international armed conflicts (NIACs), like the one in Yemen. For example, the Convention on Certain Conventional Weapons and its Protocols embody verbatim many of the same targeting rules as contained in API.
The Principle of Distinction
The principle of distinction is foundational to IHL. As applied to objects, this principledictates that:
The parties to the conflict must at all times distinguish between civilian objects and military objectives. Attacks may only be directed against military objectives. Attacks must not be directed against civilian objects.
The first question is thus: was the bridge a military objective? If not, then the attack is per se unlawful (unless it could be shown to be truly accidental, which was clearly not the case here). Even if the bridge can be characterized as a military objective, the attack on it may still be unlawful if any collateral damage to the civilian population was disproportionate to the military advantage to be gained.
Read the full piece at Just Security.
- Publication Type:Other Writing
- Publication Date:08/29/2016