March 29, 2020

Hundreds of foreigners are fighting for UAE in Yemen—How war crimes trials may deter them

The Saudi-led coalition in Yemen continues to eye a takeover of the Port of Hodeida, which has been under the control of the Houthi rebels since they forced President Abd Rabbuh Mansour Hadi to flee Yemen back in 2014. Experts have warned about the risk of war crimes should the Saudi- and Emirates-led coalition seize the port (see Monday’s article by Ryan Goodman and Alex Moorehead). Such an outcome is far from hypothetical given the multiple and ongoing allegations of war crimes by the coalition during its Yemen operation. But the widespread employment of foreign nationals in the military forces of the United Arab Emirates, a key partner in the Saudi-led coalition, presents a previously unnoticed avenue to deter atrocities and enforce international criminal law.

Commentators on Just Security have presented various legal analyses regarding the commission of war crimes by the Saudi-led coalition. Even with legal liability identified, however, it has been hard to make the case for deterrence when the likelihood of actual enforcement seemed so remote. The U.S. and U.K, both key supporters of the coalition, have largely rebuffed requests to investigate the allegations (although Scotland Yard at least has recently begun a “scoping exercise” on whether an investigation could be justified). Short of a UN Security Council referral (a non-starter given the veto power of those supporting the Saudi-led coalition), the International Criminal Court (ICC) does not have jurisdiction in Yemen because that country has not ratified the ICC treaty. The Court does have jurisdiction over nationals from one of the members of the Saudi-led coalition, namely Jordanians, since Jordan has ratified the ICC treaty. This means the ICC prosecutor, under her independent power to bring a case, could consider investigating a Jordanian national accused of war crimes. But the Jordanians play a minor role compared to other coalition member states, and none of the others have joined the ICC.

There is, however, a more promising (albeit surprising) opening for an ICC investigation. Continue reading here.


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