Superpowers, state responsibility and the search for peace?

children playing in rubble in Yemen
olivia moore

1st March 2021


There is a living hell, and more than 12 million children live there.


2 million are acutely malnourished. Consequently, 85,000 may have died between April 2015 and October 2018. A percentage of 100,000 suspected fatalities recorded in 2019. Not just children. Mothers and fathers too. A few out of the 20 million experiencing food insecurity, a further 10 million at risk of famine.


Individuals reduced to figures. Because there are too many children in Yemen.


The armed conflict in the Middle Eastern state is widely reported as the largest humanitarian crisis in today’s world. Rooted in an Arab Spring uprising, the conflict broke out as a result of political transition that ironically aimed to bring stability rather than strife. When Abdrabbuh Mansour Hadi replaced long-standing, authoritarian president Ali Abdullah Saleh in 2011, he entered a breeding ground for further division. Weakness materialised in the face of this bacteria, from jihadi attacks to a separatist movement in the south and persistent loyalty to Saleh from security personnel. All in the wider context of corruption, unemployment and food security.


This political void was quickly filled. Expediated by the Houthis, the Shia Muslim minority movement took control of the centre of the northern Saada province and neighbouring regions. The group found support in disillusioned ordinary Yemenis, both Shia and Sunni, alongside Saleh’s staunch security force. The coalition attempted to seize the entire country, forcing Mr Hadi to flee overseas in March 2015. Since, they have retained occupation of the capital Sanaa and north-western Yemen. Their surge is believed to be militarily backed by Shia strength Iran. In response, Saudi Arabia and eight other mostly Sunni Arab states initiated an air campaign, specifically aimed towards defeating the Houthis, ending the Iranian sway in Yemen and reinstating Mr Hadi’s government.


Trump utilised the last of his foreign policy power to label the Houthis a terrorist group, a move that has since been revoked by Joe Biden. It proved another potential rung in a long ladder that according to the UN, threatens an inevitable trajectory towards “famine on a scale that we have not seen for nearly 40 years”. As the conflict ensues with strikes from both sides, the implications upon civilians are perpetuated and the question of third country intervention and cooperation appears increasingly important. Ireland, small as we may be, cannot escape responsibility, especially in taking a recent seat on the UN Security Council (UNSC).


But what scope do we have to respond to grievances in contexts like Yemen? Countries wherein jus cogens violations are taking place; breaches of peremptory norms from which no derogation is permitted given the fundamental, human rights-based values they withhold. What responsibility do we share as an international community and to what extent can this duty feasibly be enforced?


“While some may be wary and others doubt the sufficiency of state practice to support a legal right to collective countermeasures, the law is falling further and further behind in the era of an ineffectual Security Council.”


The Council’s programme of work for February sought to examine issues around climate security and COVID-19, as well as situations in Myanmar, Syria, Yemen, Iraq and Somalia. For many, the branch of the world’s largest international organisation may be looked upon as a beacon of hope in tackling some of humanity’s most devastating conflicts. Radhya Al-Mutawakel, for example, a Yemeni human rights defender, has welcomed Ireland’s new membership to the body, having observed the country’s commitment to independent investigations into Yemen under the UN Human Rights Council. Quoted by RTE News, she “expects Ireland to be like a quiet fighter for accountability.”


Amid a questionable structure however, it is doubtful whether any voice championing answerability will be heard, especially a quieter one! Reality reflects slow development, if not paralysis of the UNSC, the organ who finds its peacekeeping powers under Chapter VII of the UN Charter stifled by the vetoes of the five permanent members. Bolstering this inefficiency is the lack of any international, legal alternative to restore international peace where the Security Council leaves vulnerable lives at risk. The creation of the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) provided prime opportunity to establish a legal basis for third-party, interventionist countermeasures in cases of grave violations. Despite real impetus for development in this kind of state responsibility, the consequent, clumsily worded document cast the law in stone, without clearly defined guidelines for legitimate interference.


“Rocked by a dream”, the set of norms that the codifiers envisioned would apply to any breach of international law was hindered by political concerns. Fears that the system would be abused by certain actors with ulterior, often economic motives. Caution that meddling would constitute intrusion upon state sovereignty or negatively impact innocent civilians. While valid reasons to be wary, it is contended that rather than face these questions head on, the drafters succumbed to an awkward formulation that failed to circumvent such considerations and clarify the content of multilateral responsibility. As a result, the victims of transgressive states were left hanging in the gap.


The impact of this lacuna is illustrated by the dilemma that ensues for an international community who are eager to aid in practice but blocked by superpowers in the Security Council. Without UNSC approval, such states find themselves facing ultimatum: break the law and intervene or don’t intervene and break the law.


In 1998, a cohort of Western Allies, grouped under the umbrella of NATO, operated air strikes in efforts to cease the blatant violation by the Federal Republic of Yugoslavia (FRY) of its humanitarian obligations towards the ethnic Albanians in Kosovo. A move rooted in good intentions but baseless in international norms. Russia had failed to authorize the Security Council’s decision to take measures under Chapter VII. The implications of tiptoeing that “thin red line” of international legality played out 12 years later, where Western Allies faced the same dilemma in Syria and as a result were reluctant to act militarily in the humanitarian crisis without valid permission.


Nonetheless, from NATO’s intervention in Kosovo to Switzerland’s 2011 freeze of Colonel Gaddafi’s assets in Libya, the efforts of non-injured states to hold certain states accountable continue despite this risk. In February 2012, US Secretary of State Clinton called for “friends of democratic Syria” to unite against President Al-Assad; “faced with a neutered Security Council, we have to redouble our efforts outside of the United Nations with those allies and partners who support the Syrian people’s right to have a better future.” The Group, which has at least sixty participating states, has repeatedly endorsed the unilateral sanctions adopted by the EU, the Arab League, and others against the Syrian regime.


While some may be wary and others doubt the sufficiency of state practice to support a legal right to collective countermeasures, the law is falling further and further behind in the era of an ineffectual Security Council. Whether the solution should involve internal reform of the UN system or increased efforts to invoke international legal responsibility, the demand for change is imminent. Ireland’s seat on the Security Council may feel promising, but for vulnerable children in Yemen, it is about time we stop making promises we can’t keep.



Featured Photo by EU Civil Protection and Humanitarian Aid on Flickr


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