Red Sea hostilities affect maritime security — and the rule of law
Attacks on ships in Middle East have repercussions for South Africa, write
In December last year, the Red Sea and its southern exit into the Gulf of Aden erupted in violence as Houthi rebels attacked merchant ships and the US and the UK took military action to protect commercial shipping in an international sea lane.
The Houthi actions were purportedly carried out in solidarity with the Palestinian cause in Gaza and added a maritime dimension to the Middle East cauldron. Dangerous armed attacks on defenceless merchant vessels in international waters amount to an assault on international trade, with repercussions far beyond the Red Sea and extending to South Africa.
The Houthi attacks forced shipping companies to reroute large numbers of commercial vessels around the Cape as the violence became more indiscriminate and dangerous. The seriousness of the situation was aptly demonstrated by images of the burning British oil tanker the Marlin Luanda, which was attacked with missiles on January 26 and then left to drift off the southern entrance to the Red Sea.
As a result of the attacks, the number of vessels sailing around the Cape of Good Hope has increased, and this has shone a spotlight on Africa’s harbours and infrastructure, as well as the general security of the continent’s and South Africa’s coastal regions. The route around South Africa is of global strategic importance as it is the primary alternative course when ships travelling between Europe and Asia cannot sail unhindered through the Red Sea.
The Houthi attacks with missiles and drones serve as a stark reminder of the Cape route’s immense strategic importance, as literally hundreds of commercial ships have been forced to sail around the southern tip of Africa. Though the Red Sea and Suez Canal routes make financial sense, their risk profiles have risen enormously, underscoring the continued importance of the course around South Africa.
The overall east African coastline remains under threat. Civil war in Sudan bordering the Red Sea, landlocked Ethiopia’s controversial steps to gain access to territory in Somaliland on the Gulf of Aden for ocean access, the ongoing war between Somalia and Al-Shabaab amid a potential piracy resurgence off Somalia, and the insurgency in northern Mozambique adjacent to the Mozambique Channel all pose dire risks to commercial shipping.
Meanwhile, despite being a convergence zone for the shipping rerouted from the Red Sea, South Africa’s maritime infrastructure has deteriorated and its navy is largely harbour-bound. The risks inherent in this scenario cannot be ignored. The Cape Sea Route’s risk profile from the Red Sea southwards must be co-managed with African actors to ensure ships can sail safely though these waters. In this regard, South Africa is a strategic player, and it needs to get its weakly governed maritime house in order.
It is crucial that international law is used to resolve the dispute that is now being settled by armed conflict. There are legal uncertainties surrounding the confrontation between state and non-state opponents in the Red Sea.
A US warning to Houthis not to threaten its vessels and desist from attacking commercial vessels resulted in an armed drone boat exploding in a busy shipping lane and a wave of aerial missile and drone attacks on ships on January 9. In turn, naval vessels from the US and the UK struck selected Houthi positions housing weapons used against naval vessels and merchant shipping along the Yemen coast.
In addition, the Indian navy deployed its navy and marine commandos to board and free hostages aboard a merchant vessel hijacked and anchored off Somalia, and to liberate a hijacked Pakistani fishing vessel. These actions raise legal questions about whether the navies of sovereign countries have the right to attack a non-state actor in the sovereign territory of another state in defence of merchant shipping exercising its right to freedom of navigation through an international sea lane.
Generally, the use of force against another state is prohibited by international law, but it recognises the right to self-defence as a legitimate exception to the rule against the use of force. The right to self-defence extends to protecting one’s citizens (a complex question given that crews manning commercial vessels are multinational) and their property, which would include merchant shipping. To justifiably invoke self-defence, however, the attack by the non-state actor must be on a large scale.
By the beginning of January 2024 there had been 24 attacks by Houthi rebels, and these have been escalating without signs of abating. Without minimising the disruption created by the attacks on international shipping, the question in the context of justifying the use of force is whether these attacks can be classified as “large-scale” ones, taking into account the number of ships traversing the Red Sea.
To justify the use of self-defence, whether against state or non-state actors, the gravity and scale of the attack must reach the threshold of a conventional attack. The jury is still out on whether the Houthi attacks have reached this threshold in terms of international law, but there is growing support for the argument that non-state actors can be targeted directly. Such arguments may not be in line with the established rules of international law, but the waters are being muddied by governments pushing “rules-based order” arguments to justify practices clearly not allowed in terms of accepted international norms.
After a week of emergency briefings and consultations, the UN Security Council passed a resolution on January 10 condemning “in the strongest terms” the Houthi attacks on international shipping and taking “note of the right of member states to defend their vessels against attacks”. In a rare show of solidarity, no country voted against the resolution, and only four abstained. Though the resolution does not settle the legal question of whether non-state actors may be directly targeted, its general recognition of “navigational rights and freedoms of vessels” paves the way for states to choose the means of enforcing such rights, leaving the resolution open to interpretation.
The US, for example, chose naval air strikes on several Yemeni cities under Houthi control. This does not bode well for states’ compliance with international-law principles, but they are acting in a range of ways to counter Houthi aggression by using the flexibility and multiple roles their navies are capable of.
The Houthi-led attacks on international shipping in the Red Sea introduced a maritime security dimension to the Israel-Gaza conflagration, with an immediate negative impact on global maritime trade. The attacks disrupted a critical international maritime trade route, violated international law, pitched international navies against an irregular opponent on land, and brought about a UN resolution calling on member countries to protect their vessels from Houthi attacks. The attacks also emphasised the need for such incidents to be dealt with through international law and intensified pressure for a rules-based international order.
As shipping companies send large numbers of vessels around the Cape, this development highlights the importance of the route around South Africa. The ripple effect of maritime security events far from South Africa also shone the international spotlight on African security along its eastern coast and highlighted the state of South Africa’s maritime infrastructure and the country’s ability to provide good maritime security governance to help secure a critical international maritime sea route around the Cape of Good Hope.
✼ Lt-Col (Prof) Nel is the vice-dean for social impact and personnel in the Faculty of Military Science at Stellenbosch University. Vreÿ is emeritus professor at the Security Institute for Governance and Leadership in Africa in the Faculty of Military Science at Stellenbosch University