The latest development in the escalating conflicts in the Middle East — the bombing of Yemen by the United States and the United Kingdom — is some distance in geopolitical and legal murkiness from the relatively simple October 7 starting proposition that Hamas is a terrorist organisation that committed an indefensible terrorist act, which necessitated and justified a response.
Yemen the country didn’t do anything, but the Houthi (“movement” or “rebels” depending on your preference), who occupy a large slab of it and are well-armed courtesy of Iran, have been lobbing missiles into the Red Sea and hijacking merchant ships there, ostensibly in solidarity with the Palestinian people under Israeli assault in Gaza but in truth somewhat indiscriminately.
This has played well for the Houthis in terms of their security in Yemen, where they have positioned themselves as pan-Arab freedom fighters. However, the threat to a critical global shipping route was always going to trigger a commercially motivated response.
So it was that the US and UK started bombing, with the stated aim to “disrupt and degrade the Houthis’ capabilities” to protect “the free flow of international commerce”. This was backed by a joint statement issued with 13 other countries, including Australia, which sought to establish a legal justification for the act of war.
Pointing out that 15% of global seaborne trade passes through the Red Sea, it rests its defence on a statement released by the UN Security Council on December 1, which condemned the Houthi attacks and “demanded that all such attacks and action cease immediately”. It did not propose or authorise any military action in response.
An alternative justification was provided by America’s ambassador to the UN, Linda Thomas-Greenfield, on January 12: the strikes “were consistent with international law, and in exercise of the United States’ inherent right to self-defense, as reflected by Article 51 of the UN Charter. And they were taken only after non-military options proved inadequate to address the threat.”
The UK has similarly cited Article 51, declaring that its actions are “permitted under international law” where it is acting in self-defence and using only necessary and proportionate force.
The Houthis were given ample warning. But does international law provide support for the unilateral military attack, in the absence of Security Council authorisation? According to Russia and China, which have objected, no. Which is funny coming from them, sure, but are they wrong?
The UN Charter is the basic rule book for the world’s nations, to which everyone has signed up. Article 51 purports to preserve “the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”.
The right to self-defence is frequently invoked by belligerent states, often in dubious or even farcical circumstances. Like every other aspect of international law, it is infinitely disputable and entirely subject to the realities of power politics.
Here’s a reality: the US and UK, like their fellow permanent Security Council members, have a long history of not giving a flying fuck about what the UN thinks of their actions. Just as Israel has been making it crystal clear that it will happily abide by the International Court of Justice’s determination on South Africa’s genocide claim if the ICJ rules in Israel’s favour, but will blithely ignore it if it does not, these players will state their case to the Security Council and veto any resolution they don’t like.
In the abstract, however, is the bombing of Yemen an exercise of the inherent right of self-defence? The Houthis’ actions have constituted an armed attack against members of the UN, so the only question is whether the response can be called self-defence. I think there’s a pretty good case for saying yes, provided that the bombing is contained to solely military targets controlled by the Houthis and designed to retard or prevent their attacks on shipping. Whether that’s what’s actually happening, I have no idea.
There is another issue for America: Article 1 of the US Constitution, which says that war has to be authorised by Congress. A number of members of Congress have complained that the Yemen attack is illegal because it was called by President Joe Biden as an executive act.
Biden’s position is that he has the power to “direct limited US military operations abroad without prior congressional approval when those operations serve important US interests”. Like most presidents, he’s had a different view in office from the one he had as a private citizen. Again, the law yields to power.
As for Australia’s part in this, which I understand has consisted of supplying Aussie flag stickers (made in China) for the pilots’ helmets, we have no law requiring parliamentary consent for war-making, but rely as usual on our politicians behaving responsibly and in accordance with convention.
In a world where the rules of the so-called rules-based order are only as good as the big players’ willingness to abide by them, our system of no rules is probably just as good.
