Yemen through a legal lens

state fully enjoys the protections of Article 2(4) of the UN Charter, under which “all members shall refrain in their international relations from threat or use of force against the territorial integrity or political independence of any state”. Pakistan is debating this but appears indecisive.

Further, all states are bound by the principle of non-intervention in the affairs of other states, as detailed in Article 2(7) of the UN Charter.

There are very few instances when the use of force against another state is not classified as an unlawful armed attack prohibited under international law. Firstly, intervention is justifiable if a state exercises its inherent right of self-defence under Article 51 of the UN Charter. Under international law, self-defence is limited by the requirements of necessity and proportionality. Further, the International Court of Justice has observed that only a state is capable of armed attack.

Saudi Arabia does not recognise the rebels as a legitimate government, so it cannot argue that it is acting in self-defence against a hostile state. In any case, there is no proof that Houthi forces are targeting Saudi forces.

A second premise for intervention would be that the Security Council makes a determination that the civil war in Yemen poses a threat to international peace under Article 39 of the Charter. It could then order the use of force under Article 42. However, the chances of such a binding resolution being passed in Saudi Arabia’s favour are remote, keeping in mind that Russia or China would veto it.

Thirdly, an intervention would not violate the sovereignty of Yemen if the incumbent government consents to or invites external military intervention. According to the International Law Commission, a state can legally consent to a foreign military presence or request military assistance on its territory against rebel groups. However, such assistance can only be lawfully provided if the incumbent government requesting it exercises “effective control” over its territory.

In this regard, state practice seems to show that the incumbent government’s will is accorded substantial deference, even when the government has lost control over substantial portions of territory. However, under international law, it no longer enjoys effective control if it loses control over the capital city and is in “imminent danger of collapse”.

Yemen is in the midst of the latter. Control enjoyed by Hadi is limited to Aden and that too is not far from collapse. Therefore, relying on the President’s consent for military intervention is highly problematic.

Doctrines such as the “responsibility to protect” (R2P), “humanitarian intervention” and “democratic intervention” have been suggested as justifications for intervention in Yemen. Such doctrines have not attained the status of international law and are often misused for accomplishing regime change.

Interestingly, the doc- trine of R2P has been used to defend drone strikes in Pakistan. Finally, can Pakistan act in “self-defence” of Yemen? Self-defence under the UN Charter includes both the right of individual and collective self-defence. An example of the latter would have been if Pakistan had entered into a pact with Yemen earlier to come to its aid if its sovereignty was threatened. As far as we know, Pakistan never entered into any such treaty and it cannot enter into one with a third state like Saudi Arabia, because only a sovereign state itself has the legal authority to do so.

Pakistan should, therefore, stay away from this war. It will end up violating international law by participating in hostilities. By arrangement with the

Dawn