On October 5 2016, Ali Muhammed Jubuhi Mederji living in the coastal village on the Red Sea in western Yemen, decided to take a short nap in the afternoon, after the exhausting fishing in the morning. Jubuhi slipped underneath the boat, close the eyes and went to sleep. The villagers heard the rumbling sound of the jet and saw Saudi led coalition showering the cluster bombs and it exploded in the mid air. The families found Jubuhi body struck with one of the cluster bombs and died immediately. The civilian death out of the cluster bombs are not result of collateral damage to the military attack, rather it is direct and indiscriminate attack on the civilians. More importantly, the usages of cluster bombs are not exceptions in the Yemen, rather there has been 38 civilians deaths as result of cluster bombs attack on the civilian population.
The Saudi Arabia-led Coalition (comprising of United Arab Emirates (UAE), Bahrain, Egypt, Jordan, Sudan and Morocco) started to bomb Yemen in March 2015, after nearly seven months of Houti Rebels taking de-facto territory control over western parts of Yemen, including the capital city of Sanaa. Since then, the Saudi-Arabia led military coalition has engaged in the brutal war against the Houtis rebels in desperate attempt to take back the territorial control of Yemen. Saudi-led has consistently systematically engaged in planned attack against hospitals, public roads, schools bus and other civilian objects since the inception of the war. The U.N has considered the Yemen’s non-international armed conflict as the world’s largest humanitarian crisis.
The article attempts to prove the State responsibility of Saudi-Arabia for blatantly violating the International Humanitarian law obligations by using clusters bombs in Yemen. The article would also discuss about the legal status of cluster bombs in the international humanitarian law.
The Legal Status of Cluster Bombs in International Law
The basic definition of the cluster munitions are weapons system that disperse a large number of small explosive bombs over a large area opposed to unitary attack or single isolated military attack. The cluster bombs are usually dropped from air consisting of large container packed with several bomblets and this small bomblet upon reaching the targets, the larger shell opens dispersing the bombs throughout the targeted area. The cluster bombs are anti-personal and anti-material with the military ability and advantage to multiple attacks and neutralize the large troops and disable armored vehicle with a single cluster bomb. Further, the cluster bombs additionally have the potential of self-conversion into de-facto landmines, when they fail to explode.
The first use of Cluster bombs can be traced back into the IInd World War, the Germans and Soviets extensively used the cluster bombs during the World War II. Subsequently, the U.S.A military had extensively used the cluster bombs in the intensive bombing campaign at the Vietnam War. However, the international community has adopted the Convention on Cluster Munitions (CCM) on 2008 and came into legal force on 1st August 2008. The Convention on Cluster Munitions(CCM) prohibits use, produce, stockpile or transfer cluster munitions and furthermore, the State party undertake to destroy existing stockpiles of Cluster munitions. Thus, the legal status of Cluster bombs undisputedly prohibited in International law, after the enactment of the Convention on Cluster Munitions (CCM).
Prior to the enactment of Convention on Cluster Munitions, the Cluster Bombs were nevertheless illegal in international humanitarian law because of the indiscriminate nature of the bomb, which is incapable of distinguishing between civilians and combatants, thereby violating the principle of distinction enshrined in Article 48 of Additional Protocol I of the Geneva Conventions and Article 13(2) of Additional Protocol II of the Geneva Conventions.
Saudi Arabia's State Responsibility for Perpetrating Indiscriminate Attack on Civilians
The Saudi-Arabia has not signed or prepared any public statement on the Convention on Cluster Munitions. Further, Saudi Arabia abstained from voting on UN General Assembly resolution urging the non-signatory state to ratify the treaty as soon as possible. The Saudi-Arabia has voted in favor of UNGA resolution and Human Rights Council resolution condemning use of cluster bombs in Syria. However, they have acquired the cluster bombs from the U.K and U.S and the same cluster bombs were used to perpetrate indiscriminate attack on the civilians.
The State responsibility for the grave breaches of international humanitarian law in perpetrating violations lies upon both, the conduct of State organs exercising authority and persons abiding by the instructions. The Draft Articles specifically state that violations must consist of conduct attributable to State. The Saudi Arabia-led coalition has been engaged in the internal armed conflict with Houthis-Saleh alliance for the past three years. The military strikes and operations committed by the Saudi Arabia-led military coalitions and personnel would be attributable irrespective of unauthorized acts of soldiers without official command, or the nature of the conflict.
The cardinal principle of distinction has been well explained in the Nuclear Weapons case. The International Court of Justice has stated that the first object of the State should be the protection of civilian population and civilian objects, and establishment of the distinction between combatants and non-combatants. The State must never make civilians the object of attacks, or use weapons that are incapable of distinguishing the civilian and combatants”.
The principle of distinction is the fundamental obligation in international humanitarian law and has become part of customary international humanitarian law. Article 13 & 14 of AP II, clearly mandates the state to provide general protection to civilians, and mandates that the civilian objects indispensable to the survival shall not be object of armed attack, respectively. Since, Saudi Arabia has ratified the Additional Protocol II, it is an international obligation to prohibit any attack that may cause indiscriminate attack against the civilians or breach the cardinal principle of distinction enshrined in Article 13(2) of the Additional Protocol II.
The number of civilians killed in the Cluster bombs in Yemen has been increased to 38 civilians. The civilians are killed as result of direct attack of Saudi-Arabia led military coalition against Houti-controlled civilian areas. The most of cluster bombs are dispersed on the predominately civilian populated areas causing multiple civilian deaths and severe injuries. , The Saudi Arabia led military coalition were aware of the consequences of employing the cluster bomb munitions on civilian population, moreover aware of the fact any such discharge of cluster bombs undoubtedly results in civilian deaths. However, the Saudi-Arabia led coalition continues to perpetrate attack with absolute impunity from international community. The cluster bomb attacks qualifies an indiscriminate attack and violates the Article 13(2) of the Additional Protocol II of the Geneva convention.
Adhil Saifudheen (Editor-in-Chief of IJLIA)