A/HRC/39/43
Annex II
Access restrictions by the Government of Yemen/coalition
Introduction
1.
The coalition has enforced severe naval and air restrictions in Yemen, to varying
degrees, since March 2015, citing the arms embargo provisions of Security Council
resolution 2216 (2015). Prior to the conflict, Yemen imported nearly 90 per cent of its food,
medical supplies and fuel. These de facto blockades1 have had widespread and devastating
effects on the civilian population. Among other international legal obligations, the Experts
find that they violate the proportionality rule of international humanitarian law.
2.
The rule of proportionality prohibits attacks that may be expected to cause harm to
the civilian population that would be excessive in relation to the concrete and direct
military advantage anticipated.2 Proportionality assessments are prospective, and therefore
must be based on reasonable expectations, not a known result. If the harm to civilians
would be excessive, then an attack must be cancelled or suspended. 3 Attacks that violate the
rule of proportionality are considered indiscriminate 4.
3.
The rule of proportionality applies to attacks, which are defined in international
humanitarian law as acts of violence against the adversary. 5 “Attack” has traditionally been
understood to mean the use of physical force. However, reflecting the state of armed
conflict today, the Experts find persuasive the argument for a broader interpretation of
“attacks”, where the requisite violence for an attack can be found in the consequences of an
operation. This view has been increasingly accepted in legal literature and military doctrine
manuals, and has been embraced by the International Criminal Court. 6
4.
If the scope of attacks is interpreted more broadly to include blockades and other
restrictions that cause significant injury and death, such restrictions are prohibited if they
can be expected to disproportionately harm civilians. 7 The purpose of the proportionality
rule is to preserve humanity in times of conflict and protect noncombatants. Such a reading
of the proportionality rule would be in keeping with the explicit obligation of parties,
incorporated in the requirement to take precautions, to take constant care to spare the
civilian population, civilians and civilian objects in the conduct of military operations. 8
1
2
3
4
5
6
7
8
In international law, a blockade is defined as a declared, notified, impartial and effective mechanism
that aims to prevent any access, regardless of cargo or direction. The naval restrictions on access to
Yemen could not qualify as a blockade, except during November 2017. The closure of Sana’a airport
could qualify as a blockade. However, blockades are generally understood as applicable in
international armed conflict and this report considers Yemen to be in a state of non-international
armed conflict. Therefore, this report relies on the terminology “de facto blockades” to describe the
whole of the coalition operations restricting access to Yemen.
CIHL Rule 14.
CIHL Rule 19, AP I Art 57(2)(b).
AP I Art.51(5)(b).
AP I Art.49.
Phillip Drew, The Law of Maritime Blockade: Past, Present and Future (Oxford University Press,
2017), p.97 note 33; Michael Schmitt (ed.), Tallinn Manual on the International Law Applicable to
Cyber Warfare (Cambridge University Press, 2013); Prosecutor v Bosco Ntaganda (Trial Chamber)
[2014] ICC- 01/04-02/06 (para.46).
Alternatively, an argument could be made that the proportionality rule should apply to military
operations more broadly than attacks. This appears to be the approach of the San Remo Manual on
International Law Applicable to Armed Conflicts at Sea (1994), which imported the proportionality
language to cover a blockade scenario, without describing a blockade as an attack, or an act of
violence.
CIHL Rule 15, AP I Art 57(1).
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