A/HRC/42/CRP.1
III. Legal framework
A.
Introduction
43.
Human Rights Council resolution 36/31, as extended by resolution 39/16 provides
that the mandate of the Group of Eminent Experts, is – inter alia – to examine “all alleged
violations and abuses of international human rights and other appropriate and applicable
fields of international law committed by all parties to the conflict”.9 In view of the conflict
situation in Yemen, the Group of Experts chose to examine violations of international
human rights law, international humanitarian law, and international criminal law.
44.
The situation in Yemen is mainly described as a conflict between the Government of
Yemen, supported by the international coalition of States led by Saudi Arabia, and the
Houthis. However, it also features a number of other separate but inter-linked noninternational armed conflicts involving different armed groups, whether or not affiliated
with or supporting the parties to the main conflict. Both international humanitarian law and
international human rights law are applicable in Yemen, based on treaty and customary
law.
B.
1.
Applicable Law
International Humanitarian Law
45.
International humanitarian law (IHL) is based on certain principles. These principles
find expression in detailed rules which are binding on all parties to a conflict. The
principles include the principle of distinction between military and civilian and the
principle of proportionality. The rules themselves represent a balance between
humanitarian concerns and military necessity. There can be no appeal to military necessity
outside the rules, because it is already taken into account in their formulation. 10 The treaty
rules have been formulated by the representatives of States, including military advisers.
46.
The conflict between the armed forces of the Government of Yemen (hereafter
“Yemeni armed forces”) and the Houthis qualifies as a non-international armed conflict
between a State Party and a non-State armed group, respectively. The conditions for the
existence of an armed conflict, in particular the necessary level of intensity in hostilities,
have been present for the entire period under review. Non-international armed conflicts are
regulated by treaty law, in particular Article 3 Common to the Four Geneva Conventions of
1949 (hereinafter “Common Article 3”), and Additional Protocol II thereto (also referred to
as “the Second Additional Protocol of 1977”), to which Yemen is a party, as well as
customary international humanitarian law.
47.
In addition to Article 3 Common to the Four Geneva Conventions, Additional
Protocol II is applicable to the conflict between the Yemeni armed forces and the Houthis.
Indeed, the threshold of application set in the first article of Additional Protocol II has been
reached with the level of organization of the de facto authorities and their armed group, the
Houthis, as well as their control over parts of the Yemeni territory.
48.
Yemen is also bound by other treaties it has ratified, notably with regard to means
and methods of warfare. The Anti-Personnel Mine Ban Convention of 1997, ratified by
Yemen, is particularly relevant in the present context. Yemen has not ratified the 1980
Convention prohibiting Certain Conventional Weapons or its Protocols, nor the 2008
Convention on Cluster Munitions.
9
A/HRC/RES/36/31, para. 12(a).
At least in international armed conflicts (IAC), the rules are based on the equality of belligerents. In
non-international armed conflicts (NIAC), there is, however, no political basis for asserting such
equality. Whilst the fighting may often look like the fighting in an international armed conflict, the
status of the fighters as criminals in domestic law has a variety of consequences for the rules of
NIAC, including for the prospect of their implementation and enforcement by the non-State actors.
10
12
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