JUSTICE WITHOUT POWER: YEMEN AND THE GLOBAL LEGAL SYSTEM.

• Author: Vadapalli, Amulya

TABLE OF CONTENTS INTRODUCTION I. THE WAR IN YEMEN IN CONTEXT A. Stakeholders and Actors 1. Yemeni Stakeholders 2. The Coalition 3. Non-Coalition State Actors B. History of the War C. Violations of International Law D. Applicable International Legal Frameworks II. AVENUES OF ACCOUNTABILITY A. UN-based Avenues 1. Security Council 2. General Assembly 3. Other Alternatives 4. International Court of Justice 5. International Criminal Court B. Non-UN-based Avenues 1. Universal Jurisdiction (in Domestic Courts) 2. Domestic Courts Using Extraterritorial Jurisdiction III. AN END TO A QUAGMIRE A. Issues of Cultural Competence B. The Problem of Political Will CONCLUSION INTRODUCTION

On February 24, 2022, the head of the World Food Programme announced that thirteen million people in Yemen were in danger of death by starvation. (1) That same day, Russia invaded Ukraine and explosions rocked major Ukrainian cities. (2) Only one event made headlines. (3) Yemen is the world's largest and worst humanitarian crisis, (4) with twenty-two million people in need of humanitarian assistance (5)--a fact evident to those who pay attention to the crisis, and shockingly invisible to those who do not. (6) In fact, the more the situation in Yemen worsens, the more it recedes from international attention. (7) Yemen has often been described in (mostly Western) research as the canonical example of a fragile, unstable state. (8) International attention to humanitarian crises often, paradoxically, wanes after nations are written off as permanent sites of war, destined to be forever scarred by conflict. Critically, however, inattention to Yemen allows powerful actors to perpetrate war crimes and harm the Yemeni people without facing political condemnation or legal consequences.

This Note examines how the war in Yemen exposes structural inadequacies in the global legal system, specifically with regard to vindicating crimes and abuses perpetrated by powerful states and entities. (9) By cataloging the options available to hold the state actors involved in the war in Yemen accountable, this Note demonstrates that specific structural aspects of the current global legal system allow powerful states to evade accountability for violating international law. This Note then explains the role that victim-centered transitional processes could play in building an alternative framework for ensuring justice for the Yemeni people and others similarly situated.

Importantly, this Note does not contend that the coalition of countries on one side of the war (10) is solely responsible for the state of the war in Yemen. War crimes have been committed by both sides: a 2020 United Nations (UN) report noted that "all parties continue to show no regard for international law or the lives, dignity, and rights" of civilians. (11) However, this Note does not discuss accountability for the Houthis or other actors in the war. (12) Rather, since this Note seeks to analyze international legal mechanisms for holding powerful states accountable, it only focuses on the actions of foreign state actors, particularly those of Coalition members.

Part I describes the history of the war in Yemen, the war's major actors, and relevant sources of international law. Part II analyzes the relative strengths and weaknesses of possible avenues of accountability for state actors. Part III discusses potential international mechanisms for holding perpetrators in Yemen accountable, analyzes the current legal system's shortcomings, and suggests two reforms: (1) the creation of an automatic trigger mechanism for International Criminal Court (ICC) investigations and (2) the creation of a regional human rights court in the Middle East/West Asia.

The goals of international justice are often manifold: accountability, justice for victims, and fact-finding, among others. (13) Though it is beyond the scope of this Note to define the goals of a post-war accountability system in Yemen, the analysis herein views "justice" as centered around holding perpetrators accountable and defending victims of the conflict.

1. THE WAR IN YEMEN IN CONTEXT

   1. Stakeholders and Actors

      "The poorest country in the Arab world was being bombed and starved by the richest countries in the Arab world with American support." (14)

      The war in Yemen is best understood through the complex web of actors involved. Broadly speaking, regional politics centered around Saudi Arabia and Iran as well as domestic unrest precipitated the war in Yemen. But, ever since the war began in 2015, it has involved a global set of actors with myriad political and economic interests in the region. On one side of the war is a coalition of Arab countries, backed by Western arms sales, and on the other side of the war is a Yemeni group, the Houthis. A brief analysis of these actors and their motivations is below, followed by an explanation of the relevant international legal frameworks that apply to the conflict.

      Three sets of actors are driving the war in Yemen. First, Yemeni stakeholders, including the internationally recognized government (previously led by Abdrabbuh Mansur Hadi and now led by a council backed by Saudi Arabia), (15) the Houthis, and Al-Qaeda in the Arabian Peninsula (AQAP), are each fighting to retain, gain, or determine control of the country's government. Second, the "Coalition," which comprises Saudi Arabia, the United Arab Emirates (UAE), and other Organisation of Islamic Cooperation (OIC) states, (16) has engaged in both direct combat and political maneuvering to sway control of Yemen while avoiding repercussions for their involvement. Third, non-Coalition state actors, including the United States, the United Kingdom (UK), France, and Italy, enable combat by exporting arms and providing tactical support to military forces in Yemen. (17) Iran has also been alleged to be involved, on the side of the Houthis. (18)

      1. Yemeni Stakeholders

         The Yemeni government was led from 1990 to 2012 by Ali Abdallah Saleh, (19) who coined the phrase "dancing on the heads of snakes" to describe holding power in Yemen. (20) During the war, Saleh first switched positions to ally with the Houthis and was later killed in 2017 when trying to switch back to allying with the Coalition. (21) His son, Ahmed Saleh, who subsequently declared his animosity toward the Houthis (described below), is currently Coalition-supported. (22) Abd Rabbuh Mansour Hadi was the head of the internationally recognized Yemeni government until April 2022, when he was replaced by a Saudi Arabia-backed leadership council. (23)

         The Houthis--officially called Ansar Allah--are a political and Islamist movement from the north of Yemen. (24) A largely Shi'ite movement, the Houthis are currently led by Abdul Malik Al-Houthi. (25) The group has repudiated foreign intervention in Yemen, particularly by the United States, and attracted support from those disillusioned with the present state of Yemeni politics. The Houthis have gained support since 2015 with a wide cross-section of Yemeni society due to the harshness of the Coalition's bombing campaign, as well as the economic situation in Yemen. (26)

         AQAP is an affiliate of Al-Qaeda--once considered one of its most dangerous affiliates. (27) AQAP has cut deals with the Coalition during the war, though the United States denies this. (28) The group remains active in Yemen and was suspected of abducting UN officials as recently as February 2022. (29)

      2. The Coalition

         The Coalition is a shorthand term for an alliance of OIC states, led by Saudi Arabia and the UAE, that oppose Houthi control of Yemen. The Coalition's stated goals at the conflict's outset were to counter Iran's backing of the Houthis, reinstate Hadi in Sana'a, and deter the Houthis. However, the Coalition has fragmented throughout the war. (30) Some Coalition members have left, and others have clashed directly in Yemen. (31) Saudi Arabia and the UAE, the largest and most important Coalition members, disagree on the status of several areas in Yemen, including the Perim and Soqotra islands. (32) The war's protracted nature also owes in part to Coalition members' lack of expertise with warfare; Saudi Arabia's last large military operation, for example, was Operation Desert Storm in 1991--and even there, Saudi forces played only a limited role. (33)

         Saudi Arabia, specifically, has long been Yemen's most important neighbor and trading partner (34) and previously carried out a unilateral military intervention in Yemen in November 2009. (35) Following the failure of a peace proposal led by Saudi Arabia in March 2021, (36) peace and political support for the Saudis have been difficult to marshal. (37) But the war continues unabated: while some commentators have asserted that the Houthis have already won the war because of their impending conquest of Marib, Saudi Arabia deployed newly formed units to oil-rich areas of Yemen in February 2022. (38)

         Though the Coalition is frequently referred to as "Saudi-led," (39) this characterization obscures the UAE's extensive involvement and allows the Saudis to remain the public face of the war despite the fact that the UAE controls much of the south of Yemen without consultation from the Saudis. (40) Post 2015, the UAE has led the Coalition's forces in the south of Yemen and has ties to the southern secessionist movement, Hirak. (41) With that said, the UAE has attempted to reduce its overt involvement in the war in recent years. It withdrew frontline forces in 2019 and officially withdrew from the conflict in February 2020. (42) However, the UAE remains deeply involved in the war through proxies, and the UAE's actions still inform the Coalition's strategy. (43) For example, in early 2022, the Coalition launched air attacks on Sana'a in response to the seizure of a UAE-flagged vessel in the Red Sea. (44) The UAE has also been solely responsible for specific human rights abuses in Yemen, including the operation of torture prisons in the country's...