Overlapping or exclusive spheres of law – seeking to assist civilians in Yemen

This post has been contributed by Professor Urfan Khaliq, Module Convenor for International protection of human rights.

 

Abandoned destroyed factory building, industrial backgroundAnyone following contemporary global politics and events cannot have failed to notice the catastrophe befalling the citizens of Yemen. At the time of writing this blog post, October 2018, the World’s leading humanitarian agencies, including the United Nations, have forewarned that Yemen faces the worst famine of the 21st Century and indeed the 20th Century also. We simply only need to consult the history books to understand that this is a disaster of epic proportions unfolding. The famines in Bengal in the 1940s, Ethiopia in the 1980s, North Korea and Cambodia in the 1990s, and China and the Soviet Union at various times during the 20th Century have all entered historic memory as great tragedies. It was stated repeatedly after the Ethiopian famine of the 1980s that this would ‘never be allowed to happen again’. In an increasingly globalised world, we can witness tragedies in any part of the World unfold before our eyes. Social media platforms, television pictures and radio ensure that we can now empathise with those suffering elsewhere in a way we never could before. Empathy can also bring outrage at the injustices of what is happening. But how does one deal with a case a like Yemen?

Famine and other disasters never happen in isolation. There are always a series of compounding factors which are present and which exacerbate any disaster. Natural events like earthquakes, volcanoes, floods and Tsunami are not the preserve of the developing World, they can afflict many States in all parts of the World. In developing States, however, the lack of robust infrastructure and effective governance exacerbates such situations. Man-made crises such as conflict further aggravate a situation. In Yemen you have a different but not unique scenario: a famine – the archetypal natural disaster – but one that is in this case man-made, through an on-going conflict. The famine is the consequence of conflict, not due to the failure of crops due to a drought, for example. If protecting human rights is ultimately about promoting human dignity, then it is pertinent to ask who is responsible for the famine in Yemen and how can they be held accountable? The answer to this seemingly simple question is complex and multi-dimensional. First, what are the rights of the individuals suffering the famine? To determine this, we need to establish which rights are applicable and relevant? We also need to establish who owes what rights. Finally, we need to establish if anything can be done.

In terms of rights, a famine is a lack of access to adequate food and water. Adequate implies both quantity and quality must be sufficient. The right to food is well protected in International Human Rights Law (IHRL) as an economic and social rights in the ICESCR and has been read by the Human Rights Committee into the ‘right to life’ under the ICCPR. Under the ICESCR, States are under an obligation to seek international assistance if they cannot feed their populations. The right to water is not expressly protected – a very surprising omission – in any global human rights treaty. The Committee on Economic, Social and Cultural Rights has, however, somewhat controversially read it into the ICESCR using a General Comment. This is a good example of a creative interpretation of human rights obligations but undeniably an attempt to fill a glaring gap in the law. The other side to the equation mentioned beforehand, is what are the obligations of other States to assist a State party whose population is suffering a famine. What the precise scope of that obligation is, is rather unclear but there is certainly an obligation there to help those elsewhere without adequate food. This is a good example of an ‘extra – territorial’ obligation under IHRL. Further providing such assistance requires the consent of the ‘target’ State – otherwise the donor State is ‘interfering in the internal affairs’ of the recipient State. Recipient States probably should not withhold such consent unreasonably but with that end in mind, it is clear that any such aid provided must be impartial and objective – that is given only on the basis of need. All that is fine, even if far from perfect, but there is a fly in the ointment here. Yemen is in the thralls of a brutal conflict. That conflict is not an internal armed conflict in the normal sense of that term but nor is it an international armed conflict. International Humanitarian Law (IHL) thus applies or certainly applies in the alternative to the human rights treaties referred to above. There is no ‘gap’ in protection between IHRL and IHL but they do overlap. The conflict between the Yemeni factions – the Hadi government and the Houthis (known commonly in English as the Houthi rebels) has become a brutal internecine proxy conflict between the two regional rivals, Saudi Arabia and Iran respectively. Learn more about the Yemen crisis: Who is fighting whom? There are undeniably international crimes of various sorts being committed. The global media are full of atrocities such as the bombing of a bus full of school children by – allegedly – Saudi Arabia. It is such acts which have contributed to the famine as civilian populations move to escape the violence and fighting but find they are subject to sieges and a lack of access to adequate food and water. The further question this raises, is to what extent may Saudi Arabia and Iran owe obligations to the civilians who are suffering in the famine? There are no obvious answers as the chains of causality need to be clearly established and that is little comfort to those who are starving. Ultimately there is a need for peace and that will address to a lesser or greater extent the suffering of civilians. Peace, on the one hand, and, on the other, accountability for atrocities committed during conflict are not easy bedfellows. There are many tensions so the chances of accountability are not great but that is another topic for another blog.

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