Houthi vs The US/UK

Translated by Michela Scappaticci

On Sunday 28 January, an unmanned aerial attack crashed into a US base in Jordan, injuring more than forty people and taking the lives of three soldiers, the first casualties from enemy fire for the US military since 7 October. The Pentagon blamed it on a militia supported by the Iranian Revolutionary Guard, although Tehran denied any involvement.

President Biden promised that 'we will hold all those who are responsible for this to account'.

Faced with the inadequacy of mere diplomacy, the path for a more military US response now seems to be mapped out. Meanwhile, new outbreaks risk flaring up outside the Gaza Strip, especially along what Iran calls its 'axis of resistance'.

One of the crucial points is the portion of Yemen controlled by the Houhti that the US and UK have been targeting since 11 January, in self-defence against the attacks that the rebels have been launching since November on ships transiting the Red Sea and the Gulf of Aden.

As analysed in the previous article, the Anglo-American response was formulated and challenged in terms of international law. The affair, in fact, resists any unambiguous interpretation due to a patchwork of critical issues that we will discuss in the next few lines.

The Moscow challenge

At the UN Security Council, Russia condemned the US and UK claiming that the right to self-defence does not apply to commercial vessels, and questioning whether Washington and London can resort to it given that they are thousands of miles from the Gulf of Aden.

Moscow's criticism highlights two distinct questions.

First, whether the United States and the United Kingdom can exercise the right of self-defence in response to an armed attack as provided for in Article 51 of the UN Charter even though their territory is unharmed. James Kraska, Professor of International Maritime Law, answers yes.

The Professor quotes the definition of aggression adopted by the UN General Assembly in 1974 in Resolution 3314 (XXIX). Article 3(d) specifies how an attack "on the land, sea or air forces, or on the maritime or air fleet of another State" amounts to aggression. If one considers aggression - described in the Resolution as "the most serious and dangerous form of the unlawful use of force" - as overlapping with the concept of armed attack, then the US and UK would be entitled to self-defence, given that the Houthis targeted their sea forces.

In fact, Downing Street and the White House respectively pointed out that on 9 January, the Shia rebels launched 'an attack on [the British destroyer] HMS Diamond' and targeted 'American ships directly'.

Military and civilians

At the same time, London and Washington described a broader context, where, in the words of President Biden, 'more than 50 nations were involved in 27 attacks against international commercial maritime shipping' by the Houthis.

In this regard, Prof. Martin Fink, asks the second question of the Russian criticism, namely whether the episode could set a precedent where the right to self-defence is triggered by an armed attack on civilian vessels.

The specification 'maritime or air fleets' in Art. 3(d) of the Resolution would seem to want to distinguish a commercial fleet from state maritime forces. On the other hand, extending the right to self-defence to civilian vessels that do not directly represent the state is certainly problematic, since it would turn every vessel into a potential trigger for responding with force under Art. 51.

In any case, the US and UK's insistence on linking their response to attacks suffered by their military vessels blurs the reference to civilian vessels. The latter would at most serve to portray the case as sufficiently serious for a necessary and proportionate response. Thus, the Anglo-American actions would leave the second question unanswered, safe in the knowledge that an affirmative answer to the first would suffice to justify them.

But are we sure that it is enough?

States and rebels

The protagonists further entangle the plot.

The presence of non-state actors poses a number of problems to the application of Art. 51, and in general to the implementation of the ius ad bellum - the set of rules governing the use of armed force. In this sense, an article by Prof. Marko Milanovic on the conflict between Israel and Hamas is enlightening, the considerations of which can probably be extended to the clashes between the Anglo-Americans and the Houthis.

In the last piece, we said that Art. 51 is an exception to Art. 2(4) of the UN Charter, according to which:

“

1. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

”
- Charter of the United Nations, Art. 2(4)

It follows from the terms highlighted that the prohibition on the use of force applies to inter-state relations. Thus, this prohibition would not apply to non-state actors such as Hamas or the Houthi rebels, and without a prohibition there would not even be an exception. Israel and the US/UK should therefore invoke Art. 51 not for using force against their declared adversaries. Rather, Art. 51 would only come into play if, by using force against such adversaries, Israel and the US/UK were indirectly using force against states subject to Art. 2(4).

Which, however, opens another Pandora's box, namely the question of whether Palestine and Yemen can be regarded as states for the purposes of international law - different from the question of whether the Palestinian and Yemeni peoples are entitled to a state.

Yemen is considered a 'failed state', since the internationally recognised government does not exercise any authority over the territory in the hands of the Houthi rebels.

Nevertheless, even assuming we are unequivocally dealing with a sovereign state, another dilemma would remain, namely whether the armed attack can be attributed to a non-state actor or whether even Art. 51 refers to purely inter-state relations like Art. 2(4).

Expansionists and restrictionists

The United States and the United Kingdom are in the 'expansionist' camp leaning towards the first option. Thus, the right to self-defence would justify the use of force against the Houthis without needing to attribute their actions to the state of Yemen, but simply considering the latter as unwilling or unable to stop them.

This interpretation would correspond to the controversial unwilling and unable doctrine used by the US in Afghanistan against the Taliban after 9/11. According to this doctrine, a state that is the victim of a threat located in another state can take action against the threat on the territory of the host state if the latter is unwilling or unable to act on its own.

According to a 'restrictivist' perspective, on the other hand, invoking Art. 51 against the Houthis would involve the implicit recognition of their sovereignty over the territory they actually control, which would thus become a state subject to Art. 2(4)'s prohibition on the use of force.

Alternatively, it would imply attributing their actions to a sovereign state, which would then be responsible for them. Prime suspect would be Iran, supporter of the Shia militia. However, such attribution would impose on the US and UK the arduous task of proving that the rebels are acting under Tehran's instructions or effective control. And the one between Houthi and Iran, in the words of ISPI researcher Eleonora Ardemagni, does not emerge as the classic clientelistic relationship of a proxy conflict, but rather as a 'marriage of convenience in wartime' that leaves the rebels a certain autonomy.

On this front too, unfortunately, there are few certainties.

End (?)

The last article concluded with the observation of the centrality of international law, used by all sides as an unfailing asset in their arsenal. Whether such centrality is helpful or encouraging is all to be seen.

Faced with the humanitarian crisis in the Gaza Strip, Prof. Milanovic concludes that 'this is one of those cases where, [...] ethics provides a clearer answer than law'.

Faced with the clash with the Houthis and the increasingly likely regionalisation of the conflict that began on 7 October, purely legal speculations might sound not only insufficient but also unjustified.

And yet, despite the politicisation and brainy complexities, international law continues to offer a privileged vantage point.

Like a fine wine, it requires a certain familiarity to be palatable, and possibly a presentation that does it justice. Otherwise, we only risk getting drunk. This round is on the house.

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