On July 1 2019, the Iranian Center for International Criminal Law (ICICL) filed a communication under Article 15 of the Rome Statute to the Office of the Prosecutor (OTP) of the International Criminal Court (ICC/Court) requesting the Prosecutor to open a preliminary examination on war crimes allegedly committed by the so-called Saudi-led Coalition from 2015, and during the ongoing non-international armed conflict in Yemen explains Mohammad Hadi Zakerhossein.
The communication was submitted with the aim of supporting Yemeni victims by bringing those individuals responsible for the commission of most serious crimes of concern to the international community as a whole to justice, and fighting against impunity which Yemen has been suffering from for a long time, by offering the Prosecutor a path to justice that should be followed.
An Article 15 communication is a trigger that draws the Prosecutor’s attention to crimes under the Court’s jurisdiction that are being/have committed on the territory of a State Party to the Rome Statute or by its nationals. ICICL has resorted to this mechanism to capture the Prosecutor’s attention for the crisis in Yemen.
What is happening in Yemen?
Yemen, located in the southwest of Asia, has been witnessing an ongoing armed conflict from, at least, 26 March 2015, between the internationally recognized government of Yemen, led by Mansour Hadi, and the Houthis and also the Saudi Arabia-led coalition and the Houthis, on Yemen’s territory. In the early 1990s, the Houthis movement began as a moderate theological cause named “the Believing Youth” to promote Zaidi revival in Saada. However, over the years, the Houthis movement turned into a religious-political- armed movement called “Ansar Allah” with the leadership of Hussein Badreddin al Houthi in opposition with the Saleh government.
In 2015, faced with rapid Houthi advancement, Hadi requested military assistance and fled to Riyadh. By 25 March 2015, a coalition of states led by Saudi Arabia and the United Arab Emirates intervened at the request of President Hadi, with the aim of restoring the internationally recognized government to power. The Coalition launched an aerial bombing campaign against Houthi forces. One day after its creation, ‘Operation Decisive Storm’ was launched, led by the Coalition, receiving support from several Arab countries. The operation formally lasted until 22 April 2015, after which the military objectives were allegedly achieved, boon soon after its termination, Operation ‘Renewal of Hope’ began. This second operation that has protracted to the present time is not fundamentally different from Decisive Storm, in the sense that bombardments of Houthis and civilian population has continued largely unabated.
What has constituted war crimes in Yemen?
Yemen, as a forgotten war, presents a series of atrocities committed against the civilian population, and it is a vitrine of various conduct amounting to war crimes as referred to in Article 8 of the Rome Statute. This includes intentionally directing attacks against civilians, and intentionally directing attacks against personnel, installations, material, units or vehicles involved in humanitarian assistance missions, and attacks against buildings dedicated to hospitals and places where the sick and wounded are collected intentionally directing attacks against protected objects, including buildings dedicated to education. All these grave violations of international humanitarian law have been well documented by different organizations, including UN bodies and international NGOs, such as Human Rights Watch. We allege the main responsible for these unimaginable atrocities is the Saudi-led Coalition which has subjected Yemenis to the “world’s worst humanitarian crisis”, according to the UN General-Secretary.
The Coalition has operated a vigorous and massive air campaign causing significant civilian casualties. According to the UN, “from March 2015 to June 2018, there were at least 16,706 civilian casualties, with 6,475 killed and 10,231 injured in the conflict”. Among several actors in place, the Coalition airstrikes “have caused most of the documented civilian casualties”. There is a large number of incidents proving the existence of a policy implemented by the Coalition to target civilians on land and at sea through hitting residential areas, markets, funerals, weddings, detention facilities and civilian boats.
Apart from the aerial bombing campaign against Yemenis cities, the Saudi-led Coalition has been running a blockade campaign against Yemen since 2015. The Coalition’s restrictions on imports have worsened the dire humanitarian situation in Yemen. The widespread impact has forced Yemenis to experience “World’s Worst Famine in 100 Years”. Beyond any doubt, Yemen is one of the gravest situations that have the potential to be investigated by the ICC.
How do we create a path for the ICC to step in?
The ICC lacks universal jurisdiction. Under Article 12, the Court has to find its jurisdiction based on the territorial or personal grounds, in the absence of a referral by the UNSC. Yemen is not a State Party to the ICC. It means that the Court lacks territorial jurisdiction to prosecute war crimes committed on the territory of Yemen. Nevertheless, ICICL grounds the Court’s jurisdiction on the nationality of some criminals. In the Saudi-led Collation situation, at least, one member-State is involved in the ongoing conflict, namely Jordan.
Jordan has played a role in physically implementing the foregoing plan. For instance, according to the media, Jordan, among other contributions, deployed six fighter jets in the Coalition’s operation. Therefore, Jordan has played a role in physically implementing the common plan designed by the Coalition against Yemenis. The presence of Jordan and contributions made by this country to the common plan adopted by the Coalition as a whole brings the situation under question to the Court’s jurisdictional scope because of the nationality of a part of perpetrators who are responsible for crimes committed in Yemen.
In the Rome Statute, personal jurisdiction is an alternative to territorial jurisdiction. Legally speaking, there is no difference between these two bases in terms of exercising the Court’s jurisdiction. Paragraph 2 of Article 12 of the Rome Statute refers to both territorial and personal jurisdiction as a firm basis for the Court to exercise its jurisdiction, without making any distinction and precedence between them.
The ICC Prosecution is reluctant to exercise the Court’s jurisdiction over a situation solely based on the nationality of the accused. In the past, regarding the situation of ISIS in Iraq and Syria, in which both territorial States were not members of the Court, the Prosecutor refused to open a preliminary examination referring to the narrowness of jurisdiction. Nonetheless, this unprecedented notion is vacuous. To select a situation for investigation, the jurisdiction requirement either exists or does not exist, regardless of its narrowness or broadness. Judge Hans-Peter Kaul, in one of his dissenting opinions, explicitly referred to this dilemma. According to him, ‘[t]he Court either has jurisdiction or does not’. There is no third possibility. ICICL, in its communication, argues that the Prosecution’s indisposition to exercise the Court’s jurisdiction over a situation where there is no territorial jurisdiction in contrast with the ICC legal regime if the Prosecutor can follow a path to justice by prosecuting those nationals of its States Parties involved in the situation.
What will happen?
The ICICL’s communication highlights that the situation in Yemen is manifestly within the Court’s jurisdiction. Several war crimes have occurred in the context of an ongoing non-international armed conflict in Yemen. ICICL says nationals of Jordan as a State Party to the Rome Statute are responsible for a part of crimes, at least under the mode of liability described in Article 25(3)(d) which aims at combating group criminality. There are also allegations against UK nationals, another State Party to the Rome Statute, because of their involvement in abetting and aiding crimes committed by the Coalition through selling arms to the Coalition. The situation is sufficiently grave to trigger the Court’s dormant jurisdiction and in the absence of any genuine domestic prosecution or investigation, the situation is admissible before the Court. All these firm grounds oblige the Prosecutor to open a preliminary examination into the situation in Yemen. Article 15(2) puts an obligation upon the Prosecutor to examine the seriousness of all information received by her office. This preliminary examination is not opened only if a situation is manifestly outside of the Court’s jurisdiction in absence of both territorial and personal jurisdiction. However, it is clearly not the case with the situation in Yemen that falls within the Court’s jurisdiction given the involvement of Jordanians.
What is the value of the Court’s intervention?
ICICL shows a narrow path to justice because crimes committed by others who involved in the Yemen conflict and bear greater roles in the Coalition’s activities remain outside of the Court’s jurisdiction. However, we believe that narrow justice is better than the status of impunity. Shattering the impunity by a partial prosecution could result in more prosecutions over time. The Court’s narrow intervention has broad expressive functions. It gives voice to voiceless victims in Yemen whose voice has never heard by an international court; it documents atrocities have occurred in Yemen and records this part of this history of Yemen. It puts an end to the indifference of international criminal justice towards Yemen and prevents other parties to the conflict from proceeding with their criminality by showing that there is always a path to justice.