Small Arms Trade & The Conflict in Yemen

Guest Post by Fleming Keefe

(a)Introduction

Yemen is a Middle Eastern country with approximately thirty million people, and although it is one of the poorest Arab countries, Yemen is the second most heavily armed country in the world per capita. Small arms are a primary instrument of violence in conflict and up to 1,200 people die annually in Yemen as a result of armed violence or the misuse of small arms.¹ For several decades Yemen has been devastated by internal conflict while competing groups struggle to gain political power. According to the UN General Assembly, the length and lethality of conflicts are exasperated by access to small arms because it encourages a non-peaceful resolution.

Political turmoil, a strong presence of armed militants, and an increasingly impoverished population has created a surge of violence in Yemen; whereby, small arms trade has continued to fuel the conflict and created an unreasonable, but a constant risk for violent outbreaks. Therefore, all nations should discontinue the transfer of arms destined for use in the Yemen conflict. This paper will outline why current international and domestic controls are insufficient for limiting small arms trade in the region and suggest that nations enter into a binding, explicit, multi-party agreement for achieving this goal.

(b)I. Background

(c)

Instability in Yemen can be traced back decades, finding its roots in the unsuccessful unification of two Yemeni territories. The northern state of Yemen, known as the Yemeni Arab Republic, was ruled by Ali Abdullah Saleh and supported by the United States and Saudi Arabia; whereas, the southern state, referred to as the People’s Democratic Republic of Yemen, was backed by the former USSR.² In 1990, Saleh assumed control of the modern Yemeni state, established by the union of the northern Yemeni Arab Republic and the southern People’s Democratic Republic of Yemen.³ However, many groups including Al-Hirak, Al-Qaeda in the Arabian Peninsula (AQAP), and Ansar Allah (Partisans of God or Houthis) challenged Saleh’s government.

After years of uprisings, in early 2011, more than twenty thousand impoverished Yemen activists opposed Saleh’s leadership in a march against the capital—ultimately causing President Saleh’s ousting. The movement, known as the Arab Spring uprising, criticized Saleh’s authoritarian government and demanded the establishment of a real democracy. In 2011, the UN Security Council passed Resolution 2014 which called for an end to the violence in Yemen.⁴ The resolution compelled Saleh to transfer power to his deputy, Abdrabbuh Mansour Hadi. Hadi’s interim government failed to establish permanency, causing the Houthi movement and Yemen’s provisional government to clash in a struggle for power which has left the country devastated.

The Houthi movement gained substantial momentum with the subsequent alignment of Saleh and Saleh’s supporters. In 2014, the great conflict gained international attention when the Houthi rebels captured Yemen’s capital, Sana’a, and toppled Hadi’s internationally recognized government. After assuming control of the capital, the Houthis placed Hadi and his Cabinet members under house arrest in 2015.⁵ Months of uncertainty forced Hadi and his officials out of the country; and in response to Hadi’s request for aid, a league of Arab and allied nation formed a coalition for defeating the Houthis and restoring Hadi as Yemen’s recognized government. The Arab coalition, led by Saudi Arabia, includes Qatar, Kuwait, the United Arab Emirates, Bahrain, Egypt, Morocco, Jordan, Sudan, and Senegal.⁶ The allied nations of the United States, the United Kingdom, and France supply fighting the power, weapons, and intelligence to Saudi forces.⁷

Current trade policies, which enable both the illegal and legal transfer or small arms to either Saudi Arabia or Yemen, are inadequate at protecting humanitarian interests. Aggressive Houthis tactics and Saudi-led airstrikes are credited with at least 4,000 innocent civilian casualties—implicating important human rights’ concerns.⁸ Saudi Arabia’s May 17, 2015, airstrike pattern hinted that the destroyed 1,171 structures were targeted to cripple Yemen’s economy and displace its civilian population in Saada.⁹ Until recently, eighty-two percent of the deaths or injuries resulting from Saudi airstrikes were civilians.¹⁰ Despite the grave consequences, neither the Yemeni government nor the allied nations have taken sufficient steps to limit weapons proliferation.

A. Weapons Control

A.1.Advanced Technology

An astounding interest in advanced weapon technology swept across the world in the early 1900s. Britain produced the first tank to transverse the difficult battlefields of World War I in 1915. The tank became one of the most significant weapons in military history by increasing both the speed and versatility of armed maneuvers. In the same year, Chlorine and other gases were large-scale produced, introducing the world to the concept of chemical warfare. In 1941, the Soviet Union created the AK-47 assault rifle and the US dragged the world into a nuclear era with the Manhattan Project—a secret plan to create the world’s first atomic bomb.

Throughout WWI approximately 124,000 tons of chemical agents were released, causing over one million deaths or injuries.¹¹ The Manhattan Engineer District estimated that the US nuclear attacks on Japanese cities Hiroshima and Nagasaki, in 1945, caused approximately 100,000 deaths and another 100,000 injuries.¹² Collectively, these advances transformed war from something of an art to something of a science; whereby one moderately trained soldier was now capable of causing massive casualties.

A.2.Regulation

The regulations governing weapons trade, possession, and procurement is dependent on the classification of the weapon to be traded. The international community, alarmed by the large death tolls of WWI and WWII, the began an expansive disarmament effort in the 1946 which has continued to present day. Since 1946, the proliferation of each advanced weapon mentioned above fell under heavy scrutiny, with the unique exception of the AK-47.

A.2.a.Tanks

Tanks are multi-purposed weapons not solely used to inflict harm or cause death. As such, there is not a census for tracking deaths specifically caused by tanks. However, unlike chemical agents and nuclear energy, tanks are solely instruments of war and do not have a peaceful alternative use. As an instrument of war, an individual does not have a legitimate right to obtain a tank. Tanks are only available on the military market from producers or certified states and sold to a licensed purchaser. The tank’s large purchase price creates a low product demand and the size creates smuggling difficulties. The tank’s size and nature also makes illicit transfer or possession readily identifiable. Therefore, the inherit characteristics of tanks makes the weapon relatively unsusceptible to the black market and eliminated the need for an international effort to limit trade and proliferation.

A.2.b.Chemical and Nuclear Warfare

The Commission for Conventional Armaments coined the term “weapons of mass destruction” (WMD), which it defined as “atomic explosive weapons, radio active material weapons, lethal chemical and biological weapons, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above.”¹³ That definition was later adopted by the UN General Assembly.¹⁴

The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) entered force in 1970. Only five states are not members to the NPT, which promotes peaceful use of nuclear energy, prevents the spread of nuclear weapons, and seeks complete disarmament. The NPT guarantees that nuclear-weapon states (the United States, the United Kingdom, France, Russia, and China) will not transfer or in anyway assist in the transfer of nuclear weapons.¹⁵ Non-nuclear states also pledged not seek or acquire nuclear weapons.¹⁶ The amazing success of the NPT is illustrated by almost world-wide compliance, the limited number of states which possess nuclear weapons (the US, Britain, China, France, India, Israel, North Korea, Pakistan, and Russia)¹⁷, and the non-use of nuclear weapons since 1945.

Chemical weapons are broadly defined as toxic chemicals, and their precursors, whose types and quantities are designed to cause death or harm through the toxic properties of the chemical.¹⁸ Sarin, Phosgene, Chlorine, Mustard gas, and Hydrogen cyanide are chemicals commonly used as chemical weapons. Prolific chemical warfare attacks throughout WWI led to, in 1925, the prohibition, in war, of chemical and biological weapons use.¹⁹ However, the ban failed to address use for conflicts not declared war, production, storage, or disarmament and infrequent reports of use continued. The International Red Cross Committee estimated that Egypt’s president used mustard gas during the North Yemen civil war to kill thousands in the 1960s.²⁰ Saddam Hussein is accredited with ten of thousands of Iraqi and Iranian deaths by chemical weapons throughout the 1980s.²¹

In 1997, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) resolved these issues and entered force. The combined doctrines of the 1925 Geneva Convention and the CWC represent a customary international humanitarian law against the use of poison as a weapon of war. The CWC mirrors the NPT with similar goals, acceptance levels, and compliance successes. The goals of the CWC, pursued by one-hundred and ninety-two signing states, include the disarmament current chemical weapons, ending or blocking production, and preventing use.

Chemical weapons are able to be produced by normally-equipped chemical enterprises. The greater accessibility and production capabilities of these toxins requires a more extensive disarmament effort, comparative to nuclear disarmament. As such, the CWC affirmatively requires, if necessary for achieving treaty goals, that all state parties to enact national legislations forbidding activities prohibited under the CWC. Despite this major difference in combating WMDs, 87% of the world’s chemical weapons were destroyed by 2014.²²

The international community has placed a large emphasis on combatting proliferation of these weapons by enacting various legislations which are enforced via oversight bodies, policing powers, obligations, and tracking mechanisms (Weapons of Mass Destruction Non-Proliferation Centre, NATO Science for Peace and Security (SPS) Programme, Joint Centre of Excellence on CBRN Defence, NATO Combined Joint CBRN Defence Task Force, etc.). The US authorized capital punishment for offenders which use WMDs.²³ In 2004, the UN Security Council reaffirmed obligations to disarm and prevent proliferation of all WMDs.²⁴ Since the Geneva Convention, nuclear weapons have caused zero deaths or injuries, and even the most liberal estimate of chemical weapons deaths after the CWC must be limited to 200,000. However, small arms remain mostly unregulated kill 20,000 to 100,000 people in armed conflicts annually.²⁵

A.2.c.AK-47 Assault Rifle

Since 1990, small arms have been relied on as the only instrument of war in forty-six out of forty-nine armed conflicts.²⁶²⁷ Twenty percent of the global firearm supply is comprised of AK-47 rifles.²⁸ The volume of this supply suggests that AK-47 rifles are likely responsible for the majority small arms related deaths in armed conflicts. However, unlike nuclear and chemical weapons, there has not been a universal or effective movement for limiting proliferation of assault rifles. Also unlike WMDs or large conventional weapons, small arms are readily available, easily mobile, simple to operate, and relatively cheap to acquire.

Advancements in weapon’s technology caused many nations to discard old equipment and allowed for a significant number of abandoned small arms to be traded informally and freely. The USSR introduced a new rifle in the 1970s which rendered the millions of AK-47s in circulation obsolete and free for global commerce.²⁹ The AK-47’s inexpensiveness, durability, and low maintenance attracted criminals, guerilla fighters, and untrained militants who acquired the older weapon without reserve or restraint. More than seventy-five million AK-47 rifles are in circulation throughout the world.³⁰ In affect, small arms are WMDs which must be as stringently controlled.

B. Small Arms in Yemen

Legal and illegal trade, stockpiles of weapons remaining after armed conflicts, manufacturing, and smuggling all source small arms and provide almost indiscriminate, widespread access to these weapons. While there is not a global standard for defining small arms, an underlying characteristic is that small arms are purposed for individual use. The UN General Assembly also noted that simple utilization and portability are hallmarks of small arms. Weapons typically considered small arms include: revolvers, self-loading pistols, rifles, carbines, assault rifles, sub-machine guns and light machine guns.³¹

Gun culture and masculinity or power are interwoven concepts in most Arab countries. It is estimated that there are approximately fifteen million small arms in Yemen or one weapon for every two persons.³² This estimate becomes even more staggering when noting that forty percent of the Yemeni population is under the age of fourteen.³³ However, cultural norms do not permit women to possess guns, which suggests that almost every able-bodied, Yemeni male, above the age of fourteen has access to or possesses multiple small arms. Chairman of Dar Al-Salaam Organization to Combat Revenge and Violence Abdul-Rahman Al-Marwani declared that there was at least one gun in every home.³⁴ Yemen’s massive volume and easy procurement of military-type small arms are evidenced by the Houthi’s ability to sustain their prolonged armed conflict against the government since 2004.

Domestic production is a method many countries use to supply weaponry. However, Yemen does not domestically produce small arms.³⁵ A majority of the Yemen’s small arms stockpile are weapons left over from previous foreign occupations. Several occupying powers enabled a continuous re-equipping and restocking of small arms. The earliest examples of foreign supplied small arms trace back hundreds of years, but many of these weapons are currently still in use and circulation.

In the sixteen century, the Ottoman’s introduced and abandoned thousands of muzzle-loaded firearms.³⁶ This Ottoman occupation continued until the 1910s and the weapons resulting from the Ottoman rule are considered one the most common weapons in Yemen.³⁷ British occupation continued until the 1960s and is credited with the large-scale import of modern weaponry.³⁸ Both the Chinese and Russian governments supplied the then-Marxist southern Yemen with weapons throughout the Cold War.³⁹ The easy-to-master Russian AK-47 became so popular that it began to symbolize the Islamic jihad. The militant Islamic group—Hizbollah—features the AK-47 in the center of its flag and almost all widely recognizable photographs of Al’Qaeda leader, Osama Bin Laden, almost always display the Russian-made rifle in the background. More recently, Houthi rebels reportedly gained possession of U.S. vehicles and Marine Corps weaponry when the U.S. abandoned its embassy in Sanaa, Yemen. According to the Pentagon, Marines surrendered M-9 pistols and M-4 carbines.⁴⁰

C. Trade

C.1.Authorized Trade

Authorized small arms trade occurs when the importing, exporting, and transit states authorize the transfer of the goods. From 1996 to 2000, Yemen legally imported of fifty million dollars of small arms from Argentina, Brazil, China, the Czech Republic, France, Germany, the Philippines, Poland, Portugal, South Africa, Spain, and the United States.⁴¹ Yemen does not currently supply official information on its legal arms imports, but there are no indications that the demand for small weapons has decreased.

C.2.Unauthorized Trade

Illicit small arms trafficking is the illegal transfer of weapons. Illicit weapons trade may occur when the weapons surface in the black market or when they are used in an unauthorized method. Arms trading may also begin as an authorized transaction, but become illicit when diverted to an unauthorized recipient en route or after reaching the declared destination. Other suppliers may use false documentation to import weapons directly into Yemen. Although arms trafficking occurs globally, the demand for illegal weapons is most heavily concentrated in areas afflicted with armed conflicts, political violence, or high levels of crime.

Long-standing conflict and high levels of poverty have established a predominant illicit trade market in Yemen, and corrupt government officials—motivated in protecting their financial interests—are reluctant to combat Yemen’s billion dollar arms trade.⁴² One resident noted that he could provide for his five-person family for six months by selling one AK-47.⁴³ Underpaid military officials may also use their position to acquire small arms legally but then sell the weapons illicitly to eager purchasers. Since government officials are unlikely to regulate military shipments strictly, the threat of bribery or corruption is undeniable.

The former governor of Saadah, Fares Mohammed Hassan Mana’a, received—in 2013—over 8,000 handguns from the largest weapons manufacturer in Latin America, Forjas Taurus.⁴⁴ By redirecting the shipment from Djibouti, Mana’a was able to purchase the weapons supply for two million dollars.⁴⁵ Mana’a and Taurus had negotiated another shipment of 11,000 small arms, but police officials raided the transfer.⁴⁶

It has been rumored that Iran has been using Yemen as a proxy to spread its Shia Islam ideology; whereby, the government of Iran informally funds and supplies weapons to rebel groups which pursue the country’s goals. In recent years, the U.S. Navy has also intercepted Iranian vessels transporting thousands on AK-47 rifles to the Houthi forces in Yemen. Commander of the U.S. Naval Forces Central Command, Vice Admiral Kevin Donegan, revealed that five Iranian ships carrying weapons to Yemen had been seized since 2005.⁴⁷ The French and British Navies have also intercepted thousands of Iranian-manufactured or Iranian-originating assault rifles traveling to Houthi forces in Yemen. In acknowledging that light weapons threaten peace and cause significant human suffering, the UN called for an end to the illicit manufacture, transfer, circulation, and accumulation of small arms.⁴⁸ Therefore, the remaining portions of this analysis will focus on related domestic regulations and reducing otherwise lawful trade to the region.

D. Domestic Controls

D.1.Lawful Ownership

Countries vary on whether civilian gun ownership is a right or a privilege. Like the United States, Yemen views ownership as a fundamental human right. Article 9 of the Yemeni Constitution authorizes the right to gun ownership, conditioned on having a “legitimate” but undefined purpose. Under Yemen law, handguns, fully automatic, and semi-automatic weapons are permitted by a license. Licenses are only granted to individuals aged eighteen or older. Law No. 40 of 1992, Regulating Carrying Firearms and Ammunitions and Their Trade, outlines legal ownership, carrying, and trade of firearms.⁴⁹ However, these enforcing regulations various district to district and the broken Yemeni government lacks the ability to monitor compliance effectively.

D.2.Lawful Ownership Supplying Illicit Arms Possession

As the civil war escalated and living conditions crumbled, many civilians began to supplement income by selling personal weapons. Prime Minister Ali Mujawwar claimed that the illegal circulation of weapons deteriorated peace, security, and resolution.⁵⁰ Therefore, in 2007, the Yemeni government attempted to restrict weapons possession, licensing, and sales. Current permits were canceled and replaced with new licensing requirements, arms dealers were required to maintain a record system detailing buyers’ information, and public carry of the AK-47 was prohibited in urban areas.⁵¹ Minister of the Interior Rashad al-Alemi instructed special police forces to shut down the weapons markets.⁵² At least eighteen Yemeni small arms markets with approximately three hundred retailers were forced to close.

By illegitimatizing the market allowed for more unauthorized users to access small arms. Some dealers moved their businesses to underground locations, which limited the government’s ability even minimally to monitor weapons sales. The limitation like further incentivized the market by driving up market prices. Almost entirely unregulated, arms dealers now use social media sites such as Facebook, Twitter, and WhatsApp to advertise weapons for sale.⁵³ One Yemeni dealer—Abu Kahlan—mentioned that the community sells to any licensed or unlicensed person, even ten-year-old boys.⁵⁴

Shutting down the markets required the government to compensate arms dealers, but the prolonged conflict has depleted Yemen’s economy, and the government can no longer afford this method of internal control. Closing weapons markets as an internal regulation to arms control is no longer a viable option for the Yemen government, and virtually all governmental anti-gun campaigns ended with the current Yemeni conflict. Ultimately, these shops were authorized to reopen within six months.⁵⁵ Due to the economic implications, Yemen is currently unable to pursue other alternative domestic controls, such as a weapons buy-back program.

Other national controls are also inadequate at reducing small arms trade. The government is unable to monitor Yemen’s 1,500-kilometer border correctly. Suppliers can smuggle weapons across the border with limited risk of detection by Yemen’s underequipped policing agencies. Yemen’s insecure borders encourage other militant groups to use the nation as a mechanism for exporting arms to surrounding Arab countries. The unavailability of reasonable domestic regulation indicates the absolute necessity of restricting weapons’ flow to this conflicted region by international agreement.

E. International Controls

E.1.International Humanitarian Law

International Humanitarian Law (IHL) is a legal framework, comprised of principles, norms, broad treaties, and customs, used to limit the effects of armed conflicts. IHL governs all parties during a legally recognized armed conflict, defined as an international armed conflict (IAC) or non-international armed conflict (NIAC). Common Article I of the 1949 Geneva Convention requires all member states to “respect and ensure” respect of IHL. Under IHL, all sides in an armed conflict are required to minimize the risk of civilian casualties. Therefore, weapons transfers to areas of regional conflict must be accessed to determine whether the recipient is likely to use the weapons for violating IHL, or other national laws.

Unnecessary suffering, indiscriminate attacks and superfluous injury are all prohibited. Parties have an obligation to distinguish between the civilian population, combatants, civilian objects, and military targets. Aggressors must postpone or cancel attacks if it becomes evident that civilians are unreasonably at risk. Within the IHL framework, states are required to limit the flow of small arms to conflicting parties if the trade provided unreasonable risk to civilians. This requirement is evidenced by several national legislations:

• “The National Authority shall prohibit brokering activities and refuse to grant licenses if it has reason to believe that the brokering activities will, or seriously threaten to lead to the perpetration of war crimes contrary to international law.”⁵⁶
• Each participating State will avoid issuing licenses for exports where it deems that there is a clear risk that the small arms in question might threaten compliance with international law governing the conduct of armed conflict.”⁵⁷
• “Each participating State will, in considering proposed exports of small arms, take into account the record of respect for international law governing the conduct of armed conflict.”⁵⁸

Both Saudi Arabia and the Houthis have been accused of IHL violations in Yemen. The UN Security Council began IHL investigations into four Saudi-led airstrikes. In one case, two adults and four children were killed by Saudi-launched precision munitions.⁵⁹ One panel of experts advised the UN Security Council that one-hundred and nineteen coalition air strikes were suggestive of IHL violations.⁶⁰ Despite the absence of formal IHL charges, it is evident that the risk to civilians is unreasonable. As such, all Geneva Convention members, based on Common Article I, are required to refrain from weapons trade to the parties in the conflict but have not. In 2014, twenty-four states exported arms to Saudi Arabia.⁶¹

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E.1.a.State vs. Non-state Classification

The classification of IAC or, alternatively, NIAC determines which set of rules govern the conflict. Rules of IAC apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.⁶² NIAC is “an armed conflict not of an international character.”⁶³ The common understanding of “state” permits concluding that internationally recognized governments are states. Inherent in this definition is the institutional power to exercise authority over a definable jurisdiction, on behalf of the citizens within the jurisdiction.

Within this meaning, the United States, Saudi Arabia, the United Kingdom, and Hadi’s Yemeni government all are states. Through UN intervention, Saleh transferred the necessary authority for finding state status in Hadi’s government. For this paper, it is assumed that this transfer was legitimate and sufficiently established Hadi’s government as the state of Yemen. This assumption is further solidified by the subsequent democratic election of Hadi as the President of Yemen.

Although it could be argued that Saleh’s government represents the state of Yemen, it is unpersuasive. Saleh’s government lost state status when it became apparent, in the Arab Springs march, that the government was not exercising its authority on behalf of the citizen within the territorial borders of Yemen. In an almost parallel manner, it appears that Hadi’s government also lost state status when Hadi fled from Yemen and resigned from his position. However, these two events must be distinguished.

First, unlike Saleh, Hadi neither permanently relinquished his position nor officially transferred power to a successor. Hadi reversed his resignation within one month. Second, Hadi’s ousting was not the result of a widespread protest. Thousands of civilian protesters toppled Saleh’s governance, but Hadi was unseated by a single armed militant group. These differences suggest that Hadi did not lack the authority to govern the citizens, but merely lacked the support of the Houthi group, which sought to claim power for itself. Lastly, the international community uniformly views Hadi’s government, not Saleh or the Houthi group, as the legitimate government of Yemen.⁶⁴ Therefore, Hadi’s government should be considered the Yemeni state.

There are various definitions for non-state actors, but the broadest definition includes all entities which are not a state. Based on the analysis above, two states cannot represent a single nation; and therefore, the Houthi group should be categorized as a non-state actor. When a state fights a non-state group the conflict is categorized as an NIAC, but when a state opposes a state the conflict is an IAC. An IAC may also be found by an official declaration of war, but war has not yet been formally declared on the conflict in Yemen. As such, the multi-state coalition fighting the non-state Houthi group in the Yemeni conflict should be considered an NIAC and; therefore, governed by Customary International Law, Common Article III of the 1949 Geneva Convention, and potentially Additional Protocol II to the Geneva Conventions.

E.1.b.Common Article III

The Geneva Conventions are a series of seven treaties. Common Article III, which is contained in each agreement, is applicable in “cases of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.⁶⁵ It prohibits any combatant involved in the conflict from inhumanely treating persons who do not take part or who have ceased to take part in the hostilities. Both North and South Yemen ratified Conventions I-IV before the nation’s unification. Other countries discussed in this paper such as the United States, Saudi Arabia, Britain, Iran, and France, and over 160 additional countries also ratified Conventions I-IV. Therefore, these signatures and the geographic location of the Yemeni conflict indicates that Article III legally and broadly prohibits the named countries from acting inhumanely.

However, Article III is an inadequate mechanism for protecting humanitarian interests. First, it is counter-intuitive that non-signing parties develop rights and obligations under an international treaty. Non-state groups, like the Houthis, are unable to sign agreements. Therefore, it is questionable whether Common Article III and Additional Protocol II can actually and legally govern non-state actors involved in an NIAC. Experts argue that an international treaty creates rights and obligations not only for the authority which signs the treaty but also for the entire population of the signing state. It remains unclear if this rationale will be doctrinally sufficient if ever contested. Secondly, if disturbances do not rise to the level of “armed conflict,” Article III does not apply at all. Aggressive actors may escape liability by downplaying the seriousness and labeling the event something other than an armed conflict.

Next, while clause broadly prohibits the inhumane treatment against non-active militants, its general language makes enforcement too difficult. Armed conflicts were viewed as disturbances between uniformed militaries when Article III was drafted. The purpose was to protect civilians (non-combatants) and soldiers (combatants) who became incapacitated. Within the context of uniformed armies, it was simple to determine when a person was no longer participating in the conflict because it occurred when a soldier became detained, injured, or sick. Civilian structures, hospitals, jails, and their occupants are unlawful targets under Article III.

E.1.c.Additional Protocol II

Additional Protocol II applies when a conflict between an incumbent government and internal belligerent forces arises. The legislation restricts disturbances which qualify for protection and more clearly identifies non-participants, but the general prohibition against inhumane treatment remained. If the state ratified Additional Protocol II, compliance required when the armed group exercises control over part of the territory so that the group can perform military operations and the group is organized under a responsible command.⁶⁶ Additional Protocol II is viewed as an expansion of Article III.

The Houthis continually displayed the ability to carry out military operations, evidenced by six wars waged against the Yemeni government. A responsible command suggests that the group must be organized in some manner, but does not seem to require a rigid chain of command or hierarchy. led by Abdel-Malek al-Houthi leads the group, and the duration and intensity of the both group’s attacks and political strength suggest that the group possesses a real and unified command structure. The Houthi’s sustained effort has permitted the group to cease control of several major cities, including Tais, Ibb, and Yemen’s capital Sanaa. The below image illustrates that Houthis have control over a significant portion of Yemen. As such, the conflict in Yemen appears to implicate Additional Protocol II protections.

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However, Additional Protocol II is also insufficient at protecting humanitarian interests in the Yemeni conflict. First, Additional Protocol II formally excludes certain internal disturbances from its jurisdictional reach. Parties may avoid liability by invoking one of these carve-outs such as isolated violence, riots, or demonstrations. Second, a parallel argument exists under Additional Protocol II as to whether a non-signing party or non-state actor may be bound to an international treaty. All nations in this paper, excluding the of the United States and Iran, have ratified Additional Protocol II. However, as major players in funding and supplying the conflict, the exclusion of these two nations makes any potential legal protections under Additional Protocol II insubstantial.

E.1.d.Enforcing IHL

Overall IHL is inadequate at protecting humanitarian interests because, in its current capacity, it cannot be effectively enforced. Parties are easily able to manipulate information, either by restraining or releasing data, to influence these categorical determinations. Further, policing and advising agencies disagree when IHL controls. The International Committee of the Red Cross (ICRC) and other organizations argue that IHL should be applied during all conflicts, regardless of IAC/NIAC or state/non-state determinations.

However, states traditionally must enact national legislations in order to punish IHL violations and only have jurisdiction over their own nationals or acts committed within the state’s territory. However, all states in an IAC have general jurisdiction over grave breaches of the Geneva Convention. Grave violations of the Geneva Convention can only be initiated by state parties and only into the actions of other state parties involved in an IAC, or the International Criminal Court (ICC).

The Rome Statute established the ICC, the first permanent international court which can investigate and exercise jurisdiction over individuals who seriously violate IHL of the Geneva Convention, in 2002. Even though the treaty has one-hundred and twenty-one members, some key states for this analysis—such as the United States and Yemen voted against the treaty. American anti-ICC sentiments are best illustrated by Congress’s passing of the American Servicemembers’ Protection Act (ASPA), which prohibits US cooperation with the ICC.⁶⁸ Ten years after its creation, the ICC has only completed two cases—casting serious doubt on the courts helpfulness in regulating even the most serious international crimes. As non-signers of the Rome Statute, neither Yemen nor the US fall under ICC jurisdiction. While Saudi Arabia did ratify the statute, it cannot invoke jurisdiction for IHL violations in Yemen without Yemen’s consent—which is unlikely since any Saudi IHL grievance would be against Yemen or potentially Yemen’s ally Iran. As such, the ICC likely has de minimis power in reducing arms trade to Yemen, or elsewhere.

State parties in an IAC are required to affirmatively investigate persons accused of committing grave breaches of the Geneva Convention but rarely do so because of underlying political goals. Serious violations include the willful and indiscriminate killing of civilians and civilian targets. Within the context of the Yemeni conflict, Saudi Arabia’s air campaign has been accused of conducting grave breaches and violating IHL. Since the Houthi group, as a non-state party is unable to initiate an investigation, and since Hadi’s government requested Saudi aid, Yemen appears to be devoid of any opportunity to start an investigation on its behalf. Since the United States and Britain funded and supplied the weapons to Saudi Arabia, they are also unlikely to launch an inquiry because it would be self-implicating and incriminating.

US military members may, though unlikely to do so, use the Uniformed Code of Military Justice (UCMJ) to exercise jurisdiction over other US military members for IHL violations committed in foreign territories. Military commissions may also be used to exercise jurisdiction over non-military members for IHL or statutory offenses. Military commissions may be established on US territory, US occupied territory, or foreign territory by consent, but in recent years the jurisdiction of military tribunals has been seriously doubted. The US Supreme Court held that military commissions were not expressly authorized by Congress, but violated UCMJ and Geneva Convention protections.⁶⁹ In 2009, President Obama suspended military commissions and concluded that the commissions could only be appropriate if properly structured and administered.⁷⁰

However, this type of on-the-scene universal jurisdiction is unlikely to reduce arms trade in the region because applicability is limited to armies currently present in the region—Saudi Arabia and Yemen. The IHL violations rumored to the Yemeni conflict are indiscriminate and excessive attacks, but as a practical matter, an army is unlikely to investigate its own members. However, in the rare case that a member is convicted, the individual impact in reducing arms or violence is inconsequential.

The IHL does not have a controlling power capable of formally declaring whether an event is an armed conflict or not, an NIAC, an IAC, or whether a risk is unreasonable. Therefore, the set of governing laws is generally only invoked when the parties involved in the conflict accept and agree that an armed conflict, NIAC, an IAC, or unreasonable risk exists. The parties in the Yemen conflict have not uniformly agreed that small arms transfers to the region are unreasonably risky, so IHL likely cannot be used to restrict the trade.

Finding of an IAC is unlikely and the international community is reluctant to grant the Houthis state party status because such a categorization would implicate a legitimate claim for the Houthi group to the government of Yemen. The traditional application of IHL excludes inquiries into Houthi actions if the group is labeled a non-state party or the conflict is determined to be a NIAC. Therefore, IHL probably cannot be used to limit a non-state actor from procuring small arms and the Houthis may freely import weapons from Iran, or any other state, without violating IHL. In conclusion, Yemen’s inability and the coalition’s reluctance to find IHL violations indicate that IHL cannot sufficiently restrict small arms trade for weapons destined to the Yemeni conflict.

E.2.Customary International Law

Protocol II is only binding on state parties, which excludes the US. However, Customary International Law (CIL) is a set of rules that represents the standard practices of states and the belief that states must legally act in a certain way based on that commonality. states and non-state parties are legally bound to follow the customary international law because CILS are obligations which do not arise under formal, written, treaties. The ICRC has compiled a non-exhaustive list of CILs. According to the ICRC, CIL defines a war crime as an intentional or negligent attacks on civilians or civilian objects in either NIACs or IACs.⁷¹ Parties to the conflict must also take all feasible precautions to protect civilians and civilian objects from the effects of the conflict.⁷² When these two principles are viewed together, it becomes apparent that, under CIL, all parties in the Yemen conflict are required to prohibit weapons trade that unreasonably threatens civilians or civilian objects.

By failing to distinguish between state and non-state actors and NIAC or IAC status, these broad international customs seem to be more useful mechanisms for limiting small arms trade to the area than IHL alone. However, the obstacles for enforcing CILs diminish the apparent benefits. Unlike international treaties, which the Supreme Court has labeled part of the “supreme law of the land,” CILs do not have an inherent legal authority and are not directly approved by any elected branches of government. In this way, it is unclear if CILs may be enforced and, if so, where CILs fall concerning other bodies of national or international law. In the United States CILs may be imposed and adopted as a judicially created Federal Common Law, but it is clear that the strength and jurisdiction of CILs vary nation to nation. Therefore, the availability of extraterritorial jurisdiction seems to be limited to only consenting parties. If parties must consent to CIL, CIL cannot be a useful mechanism for restricting the international transfer of small arms to areas of conflict.

E.3.European Union

The European Union (EU) is an economic and political coalition of twenty-eight member countries. Members include: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. EU regulations legally bind all EU members regardless of whether the rules are also adopted into national law; but, EU directives require countries to acquire a particular result without mandating the method for doing so. EU directives must be transposed into domestic law.

Under the EU Code of Conduct, EU member states are prohibited from selling weapons to countries where the weapons might be used to undermine regional peace or violate international humanitarian law.⁷³ The discussion above indicates that small arms are primary weapons used in undermining regional peace. Based on this principle alone, the supply of small arms should be precluded from extremely volatile regional areas. Several accusations against the Saudi coalition also suggest that trade should be restricted, based on the Code of Conduct.

But the EU Code of Conduct itself also has not adequately restricted trade. This inefficiency is evidenced by both the European Union and Dutch parliaments requesting an arms embargo against Saudi Arabia last year. However, like the Additional Protocol II analysis, the proposed EU ban and Code of Conduct neither prohibit the U.S. or Iran from providing small arms to the region nor prevent transfers from any state to the Houthi group or other parties of the Saudi coalition.

F. Recommendations

Domestic controls, international humanitarian law, international customary laws, and EU regulations have thus far been unsatisfactory at regulating small arms. Over eighty percent of the Yemeni population is in need of humanitarian assistance as a result of the ongoing conflict. Compassion for humanity and the dire situation require reaching an agreement that legally binds all parties from supplying small arms to the area of conflict. For the agreement to be effective, there must be a mechanism for enforcing this agreement.

F.1.General Treaty

A comprehensive treaty may be used to restrict the transfer of conventional military weapons like the AK-47. A common international standard for trading weapons to regions of conflict or parties involved in a conflict would seriously reduce the risks of civilian deaths and IHL violations. However, this was the precise goal of the 2014 Arms Trade Treaty (ATT), which imposed strict controls on trading traditional weapons subjected to IHL concerns.⁷⁴ Despite the treaty, the US alone supplied—in 2015 —over fifteen billion dollars of weapons and licenses to Saudi Arabia as aid the Yemen conflict.⁷⁵

However, both Iran and Saudi Arabia appear to be using Yemen as a proxy for pursuing their own political and religious agendas. Since each state has a high interest in Yemen’s outcome, it is improbable that either state would support a treaty restricting their regional influence. Further, the issue of who may bind the current Yemen state also remains. Therefore, another arms treaty is likely not a viable option for resolving the Yemeni conflict and reducing small weapons in the region.

F.2.Maintenance of Peace Resolution

Under Chapter VII of the UN Charter, the Security Council has broad authority to take military and non-military action respond to a “threat to the peace, breach of the peace or an act of aggression” and restore international security.⁷⁶ This regulating body has broader authority than any of the previously mentioned controls to enforce compliance by all parties directly or indirectly supplying weapons to the region. A Chapter VII resolution grants the UN power to react without the requiring the illusive IAC/NIAC determination. Within this framework, the UN may even exercise authority of exclusively domestic matters.

While, the UN has expressed grave concern over the role of small arms in Yemen’s instability⁷⁷, the UN has failed to acknowledge that even legal trade in the region prevents peaceful change and political process by allowing a violent alternative. Therefore, the UN must issue a Chapter VII resolution prohibiting all small arms trade to the region or to purchasers reasonably suspected to use the weapons in the Yemeni conflict.

The five permanent members of the UN Security Council, the US, UK, Russia, China, and France, are responsible for eighty-eight percent of the world’s small arms export.⁷⁸ Since all UN member states would be required to comply with the embargo, a resolution would actually control the world’s weapons trade. The UN should also establish a Monitoring Team to assist in scrutinizing trade practices, like the UN Security Council resolution 1267—a Chapter VII resolution used to restore peace after the Taliban seized Afghanistan. Unlike the other proposals, a Chapter VII resolution has the unique ability to defer both illicit and otherwise legal arms transfer—making it the most useful mechanism for reducing the stock small arms in areas of conflict.

(d)Conclusion

(e)

Small arms present a continued risk of increased violence and regional insecurity in the Middle East. Stronger controls are needed to prevent IHL violations and illicit possession of military grade weapons. Therefore, the international community must unify its efforts for limiting small arms proliferation to countries active in the Yemeni conflict via a multi-lateral treaty or Chapter VII resolution. Additionally, the Yemeni government must increase its ability to limit the country’s stock of AK-47s via more stringent domestic regulation.