Yemen, Syria & Afghanistan: Case Studies in International Law, Peace, Justice, and Sanctions in Armed Conflict

Owen Hanley

King’s College London, Department of War Studies, London 

Owen.Hanley99@gmail.com 

Introduction

On 27 June 2023, the International Bar Association’s War Crimes Committee, in collaboration with the King’s College London War Crimes Research Group, jointly held a day-long conference with two separate panels at King’s College London’s Strand Campus. The conference focused on the prolonged and ongoing conflicts in Afghanistan, Syria and Yemen; the role of international humanitarian and criminal law in advancing humanitarian efforts in those regions; and the impact of legal sanctions and designations on conflict resolution and the peace process.

In-keeping with its unique convening power, the IBA brought together two panels comprising a diverse array of former government officials, prominent activists and journalists, alongside leading legal experts and practitioners to collectively discuss issues of concern.

Welcoming remarks

During the welcoming remarks, Dr Maria Varaki, Co-Director of the War Crimes Research Group at King’s College London informed the audience that the War Crimes Research Group organise lectures and seminars centred around international law and war throughout the year, which are open to all.[i]

The IBA had the honour of welcoming Baroness Helena Kennedy QC, one of Britain’s most celebrated human rights lawyers and Director of the IBA’s Human Rights Institute, to lead the welcoming remarks and open the conference. Baroness Kennedy began by emphasising that her defence of human rights and the rule of law during wartime began domestically, referring to her work throughout The Troubles in Ireland. She reiterated that it was a civil war that consequentially led to ‘incredible erosions of rights’ and ‘serious miscarriages of justice’ in the United Kingdom. Through her work, Baroness Kennedy played a role in the passing of the Police and Criminal Evidence Act 1984, which established legal standards in relation to the powers and duties of the police force, persons in detention and the collation of criminal evidence, for example, the recording of police interrogations, practices which remain crucial to the present day. Baroness Kennedy highlighted how UK governments had disregarded the rule of law during the war, drawing a link to the current conflicts in Afghanistan, Syria and Yemen. In particular, she highlighted how the British Government’s push to criminalise refugees from these countries directly flouts international refugee law.

Following this, Baroness Kennedy outlined her recent work, noting how the Human Rights Institute has been working to improve justice systems around the world by teaching lawyers, judges and medical examiners in Latin America to identify signs of torture, with these practices being formally adopted in Brazil. Most recently in 2022, Baroness Kennedy began work on the War Crimes Task Force in Ukraine, yet has found that Ukrainian domestic laws lack command responsibility, which has raised issues. Baroness Kennedy discussed the difficulties faced in assisting those in Afghanistan, Syria and Yemen, especially women fleeing the Taliban and the humanitarian crisis in Yemen. In her concluding remarks, Baroness Kennedy called upon the wider legal community to begin addressing these issues and collectively work to ensure that peace, justice, and accountability are delivered to all victims and survivors globally.

The first panel

The first panel was titled: ‘The role of international humanitarian law and international criminal law in the peace and accountability process’ and was moderated by Dr Mohamed Elewa Badar, Professor of Comparative and International Criminal Law and IBA War Crimes Committee member. The first speaker was Saleh Al-Batati, an award winning Yemeni freelance journalist who has been reporting on the war in Yemen since 2015. Dr Badar firstly asked Al-Batati for his opinion on the current state of affairs in Yemen, with Al-Batati responding that there is a general sense of cautious optimism surrounding the 2022 Houthi–government truce, which recently was extended via both Saudi and Iranian influence. Additionally, Al-Batati noted how direct Saudi–Houthi talks demonstrated a positive development in the conflict’s resolution, citing the return of direct flights between Saudi Arabia and Yemen, which had been previously halted in 2016. However, he noted how there are burgeoning debates within Yemeni society as to where responsibility lies for the war’s inception, with some stating it began in 2014 with the Houthi takeover, or if it began in 2015 with the Saudi-led intervention. Most importantly, Al-Batati emphasised that the wider international community needed to build upon the recent negotiations in order to ensure peace remains permanent within the region.

Dr Badar additionally asked Al-Batati what the contemporary popular Yemeni discourse was surrounding acts of atrocity committed during the war and the subsequent peace between both groups. In response, Al-Batati first stated that there was a strong need for international groups and bodies to ensure that all parties are held accountable, as there is a strong sense, he argues, of collective international failure so far regarding accountability in the Yemeni Civil War. Second, Al-Batati also noted the urgent need to gather victims’ accounts for future war crime prosecutions. Crucially, Dr Badar and Al-Batati collectively emphasised the need for Yemen-centric/local approaches, rather than conventional Western-centred approaches and understandings, which was encapsulated in the repeated phrase ‘voices from below’ that need to be brought to the forefront when pursuing justice and accountability. Following this, reflecting upon the inadequate preparations by the Western Coalition forces for dealing with Iraq’s sectarian divisions after Saddam’s deposition in 2003, Dr Badar raised the pertinent issue of how to adequately address Yemen’s sectarian divide. Al-Batati in his concluding statements advocated for intercommunal discussions and mutual concessions to be fostered between Yemen’s Sunni and Shia populations in order to avoid a repeat of the acute sectarian violence seen in Iraq in 2006.

Following Al-Batati’s insightful remarks, John Balouziyeh, a partner at the New York and Geneva offices of the international law firm Curtis, Mallet-Prevost, Colt & Mosle LLP and North American Regional Forum Liaison Officer of the IBA War Crimes Committee, addressed victim-centred justice in Syria. Balouziyeh drew attention to the fact that Syria is not a member of the International Criminal Court and has generally refused to cooperate with the international community in investigating international crimes allegedly committed within its territory. Where there is a lack of cooperation of territorial states, the prospects for meaningful justice and accountability are diminished. To illustrate this point, he drew a parallel to the ICC’s investigation in Afghanistan. The lack of cooperation by parties allegedly responsible for international crimes led the ICC Pre-Trial Chamber to deny the Prosecutor’s request for an authorisation to investigate the situation in Afghanistan, holding that the ICC prioritise its resources in activities with better chances of success. Balouziyeh contrasted this lack of cooperation of parties in Afghanistan with the willingness of Ukraine to cooperate with the ICC and the wider international community in investigating international crimes allegedly committed within its territory. Ukraine’s cooperation has resulted in a deluge of efforts to promote accountability at the international level, including at the ICC, the UN and the EU, even resulting in the establishment of the International Centre for the Prosecution of the Crime of Aggression against Ukraine.

Dr Badar then gave the floor to Toby Cadman, a leading international human rights and criminal law specialist, Joint Head of Chambers at Guernica 37 International and Secretary of the IBA War Crimes Committee. In response to Al-Batati and Balouziyeh, Cadman argued that due to the international community’s short attention span, there needs to be focus on ensuring domestic legal institutions receive long-term support and development to achieve these goals. Cadman cited Bosnia as a prime example of where this has occurred, as in Bosnia they are actively still prosecuting war crimes for a war that ended in 1995, due to the immense backlog of cases coupled with inadequate domestic legal institutions. In order to prevent this from reoccurring, Cadman strongly emphasised that there needs to be a multi-decade commitment from the West to ensure peace and accountability post-conflict, but unfortunately this is often in direct contrast with what he labelled the short attention span of the West.

Coupled with strengthening domestic institutions to cope with a protracted backlog of war crimes cases, Cadman also emphasised the need to utilise universal jurisdiction and the International Criminal Court in conjunction with domestic legal institutions. Crucially, he emphasised to the panel that there needs to be no time limit for staying in a country to achieve this. Furthermore, Cadman also advocated for looking at conflicts holistically within a wider historical framework to better understand how to ensure peace and accountability are achieved within a post-conflict nation.

Cadman’s final contribution to the first panel involved him raising the current ongoing war crimes case at the Hague against Syria, which was jointly initiated by Canada and the Netherlands. It is a historic case for the International Courts of Justice, as it is the first time two states, which are not explicit victims, have brought a joint claim against a third. Under ICJ jurisdiction, they have had to negotiate with Syria, which has meant the case has taken three years to bring before the ICJ. Under Article 8 (2) (a) (ii) of the Rome Statute covering the war crime of torture, only one victim and one incident are required for an individual or entity to be found guilty, therefore, a representative case was selected to bring before the ICJ which benefits the victims and best suits the court. Again, in line with the previous panellists, Cadman emphasised a victim-led approach in achieving peace and accountability. Such a case before the ICJ comes at a geopolitically crucial time for Syria, as in recent months they have begun to redevelop their diplomatic relations with the Arab League.

Following this, Dr Badar turned to Col (ret) Charles Garraway CBE, former senior legal military advisor and specialist in Law of Armed Conflict and Operational Law to continue the discussion. In response to Cadman’s final example, he argued that Syria’s gradual reintegration to the Arab League shows how politics is overriding justice. From Col Garraway’s own career, he provided a relevant example of this from his time as a member of the UN’s Group of Eminent Experts in Yemen (GEE), which he declared was ‘set up to fail’. The UN’s GEE in Yemen did not have whole support and was plagued by internal bureaucracy and resource limitations, most notably, only reporting to the UN High Commissioner rather than the War Crimes Council. This in turn restricted the GEE’s ability to document war crimes in Yemen to a singular 30-page document. Furthermore, the GEE’s nonpartisan reporting of war crimes across all conflicting parties consequentially reduced their ability to conduct groundwork in response to their reporting. Even in 2020 when their mandate increased, their access still remained limited, which in turn meant the documentation of war crimes became largely the responsibility of local NGOs. Col Garraway noted that the lack of international and unilateral accountability for war crimes in the Yemeni Civil War was rooted in the lack of international consensus, as external parties with varying political aims were hindering justice and accountability.

Subsequently, Dr Badar asked Col Garraway how then do we overcome these limitations on the ground? Firstly, Col Garraway historicised the origins of these limitations, arguing that the unilateral global consensus that characterised the 1990s, with widely supported interventions in Bosnia, Rwanda and Somalia, has largely dissipated after 9/11, with it being more challenging to bring the international community together like in previous decades. Garraway, in line with the previous speakers, advocated for bottom-up approaches and a shift away from great power leading as a solution to ensure justice and accountability in the face of the general dissolution of international unilateral consensus.

Following Col Garraway, Hon. Hasina Safi, former Afghan Cabinet member as Minister for Women’s Affairs and first Afghan UN CEDAW representative was asked by Dr Badar to comment on the current situation in Afghanistan. Safi firstly chartered how after the US-led intervention to depose of the Taliban in 2001 there were incredible strides for women’s rights in Afghanistan. Most prominently, gender equality was enshrined into Afghan law, as Article 22 of the Afghanistan Constitution of 2004 explicitly stated: ‘The citizens of Afghanistan, man and woman, have equal rights and duties before the law’. Safi also noted how prior to the Taliban’s recapture of Afghanistan, Afghani women had become empowered in a way previously unseen, with 27 per cent of those in parliament women, alongside 37 per cent of schoolchildren were girls and how 13 per cent of the civil service were women. However, tragically, Safi explained how rapidly this had all been undone after the Taliban reseized Afghanistan, and unfortunately did not provide an optimistic picture for Afghanistan’s immediate future.

Dr Badar turned the floor back over to Balouziyeh to address the role that civil claims and criminal prosecutions in domestic courts have played in promoting justice in jurisdictions such as Syria and Yemen, which are not States Parties to the Rome Statute. Balouziyeh pointed to a proliferation of cases brought in national courts exercising universal jurisdiction against government actors, military officials and even corporations and company executives for their roles in alleged international crimes committed in Afghanistan, Syria and Yemen. He stated that, in recent years, there has been an acceleration of cases filed in national jurisdictions across Canada, Europe and the United States brought by victims of international crimes. He cited a case filed in France by a coalition of NGOs on behalf of victims against European defence manufacturers for the sale of weapons that were allegedly used to commit war crimes in Yemen. That case was lodged before the French national courts, with a separate Article 15 communication filed before the ICC for the same underlying acts.

The final speaker from the first panel was Dr Maria Varaki, Lecturer in international Law and Co-Director of the War Crimes Research Group at King’s College, London, who discussed what she referred to as the double standard of war crimes prosecution. She highlighted how there has been an unprecedented increase in focus on international criminal law surrounding Russia’s actions throughout the war in Ukraine. However, this interest has not been equally applied to previous conflicts, such as the US-led invasion of Iraq in 2003 or the ongoing Israel–Palestine conflict. Varaki further highlighted the complications of utilising international criminal law against a country that is a permanent UN Security Council member. Varaki then took a more critical approach to these double standards, arguing that they are often rooted in a colonial outlook, stating that there is a level of Western priority in the ICC surrounding the prosecution of war crimes. In her final remarks, Varaki advocated firstly restarting discourses surrounding these double standards, but crucially that cooperation with non-Western countries, rather than discourse alone, is key in ensuring that peace and accountability are achieved in post-conflict nations.

Overall, the primary takeaway from the first panel was that legal practitioners and policymakers must consider a shift away from a Western-centred approach when seeking to ensure peace, justice, and accountability in post-conflict societies. Instead, there needs to be a bottom-up ‘voices from below’ approach, which prioritises local victims and survivors over geopolitical aims. Additionally, it is crucial to strengthen domestic legal institutions for as long as is necessary to ensure that there are legal frameworks in place which can independently and unilaterally deliver justice and accountability within post-conflict nations.

The second panel

The second panel was titled: ‘Sanctions, designations, and de-listing – help or hindrance to conflict resolution and peace negotiations?’ and was moderated by Emily Elliott, Associate at Kingsley Napley, London and Membership Officer of the IBA War Crimes Committee.

Farea Al-Muslimi, Research Fellow in the Chatham House Middle East Programme and Yemen/Gulf Region specialist opened discussions by providing both expert and personal insights into the limitations and negative consequences of Western sanctions on Yemen. He firstly noted that financial sanctions operate within a conventional Western-centric understanding what constitutes a punishment, therefore the freezing of Houthi assets achieved less than expected in a country where only seven per cent of the population have bank accounts. An overlooked negative consequence of Houthi sanctions in the Yemeni Civil war, highlighted by Al-Muslimi, was that they inadvertently became propaganda victories for the Houthi rebels, with Anti-Westernism, Anti-Imperialism and Anti-Americanism all key pillars of the Houthi ideology. Thus, sanctions from Western and Saudi governments only served to reinforce their legitimacy in the eyes of their wider support base.

Additionally, Al-Muslimi also emphasised how sanctions are often most harmful to the wider populace, rather than the entities themselves and can cripple entire societies. Supporting this he provided a bleak anecdote of having to personally acquire the Covid-19 vaccine via the black market due to sanctions, also noting how Saudi sanctions have restricted 120 essential items including children’s milk. Al-Muslimi raised the concern that the restrictions on such items will greatly hinder the cognitive development and physical health of Yemen’s next generation, illustrating how these sanctions will have multi-decade long consequences beyond the immediate conflict.

Al-Muslimi provided a final example of how Western governments were utilising sanctions inadequately, specifically how they have been used as a way to gain domestic political support, rather than as discretionary conflict prevention tools. He referenced Trump’s decision in January 2021, immediately prior to his departure from the White House, to designate the Houthis as an FTO, in order to garner domestic support, and how in response, Biden immediately delisted the Houthis on 16 February 2021. Here, Al-Muslimi highlights how sanctions can become a partisan action, rather than an objective tool and suggested that Biden could have used the promise of delisting the Houthis as a sort of geopolitical carrot and stick to potentially improve or hasten negotiations, rather than immediately removing them to undo Trump-era policies. Thus, Al-Muslimi concluded that policymakers can learn from the mistakes made in sanctioning Yemen, and hopefully utilise them more thoughtfully and strategically in the future.

Following this, Elliott asked the next panellist, Sara Elizabeth Dill Esq, Partner at Anethum Global, London, and Treasurer for the IBA War Crimes Committee, what actually happens to banks and businesses when sanctions are imposed and how restrictions are enforced. In response, Dill highlighted that there is a broad range of potential responses to this question, as sanctions can be introduced by, and imposed on, a wide range of entities, ranging from individuals, to organisations, all the way up to entire nations. Dill additionally reiterated Al-Muslimi’s concern that economic and travel sanctions against entities such as the Houthis, who do not have international bank accounts or travel abroad do very little to hinder these groups, thus asking whether such sanctions are merely performative.

Regarding the issue of banks and businesses violating sanctions, Dill explained that both have to be incredibly scrutinous to ensure they are not violating sanctions. Alongside this, there is the pertinent issue of the issuing of licenses to businesses within a sanctioned country to provide humanitarian relief. Often, due to the restrictive nature of sanctions, the local companies that many NGOs have to cooperate with find themselves not being sanction-compliant, which inadvertently hinders humanitarian relief, an issue currently present across Afghanistan, Syria and Yemen. Dill cited how during the 2023 Turkey–Syria earthquake, humanitarian relief was unequally distributed to Turkey, rather than Syria as a result of Western economic sanctions on the Assad regime, thus preventing humanitarian relief from entering the country. Dill emphasised not only the double standards present, but also the colonial undertones often found in the application of economic sanctions, with primarily non-Western aligned countries being the most sanctioned. Dill, like Al-Muslimi finally drew attention to the long-term impact of economic sanctions, citing how the restriction of construction equipment to Syria hinders their ability to effectively rebuild and return to normality.

The next panellist to speak was Benafsha Yaqoobi, a leading Afghani disability rights activist, who in line with the previous panellists, raised the issue that economic sanctions and travel bans do very little to individuals and entities who do not travel or bank internationally. However, she noted that such sanctions may be good on a symbolic level, to publicly draw attention to an individual, organisation or nation’s wrongdoing. Yet reiterated there are clear issues around the practicality of certain sanctions. In her final remarks, Yaqoobi drew focus beyond the material impacts of economic sanctions, noting that sanctions often have an overlooked impact on the mental health of a sanctioned nation.

The final panellist was Natalia Kubesch, legal officer at REDRESS, who firstly provided a comprehensive overview of the ways sanctions are a help and a hindrance to conflict resolution. Kubesch noted how they can reduce the financial capabilities and monetary access sanctioned entities have, specifically citing how in 2011, economic sanctions on Libya directly hindered the Gaddafi regime’s ability to fund mercenaries. Additionally, Kubesch also noted how sanctions can speed up negotiations and shift political stalemates while also pressuring societies to push for alternatives to war. However, from a legal standpoint, Kubesch raised the issue that sanctions muddle with universal jurisdiction, are often inherently political and are not applied unilaterally. Echoing the previous panellists, she noted how there are valid concerns of sanctions being used as a performative form of ‘political window dressing’ – citing how economic sanctions have done little to stem the ongoing Sudanese Armed Conflict. Furthermore, Kubesch acknowledged that even targeted sanctions against individuals and entities, which are less damaging than nationwide sanctions, will still negatively impact on the families and dependents of those sanctioned. In her final remarks, Kubesch recommended that governments need to provide clearer guidelines on sanction compliance in order to ensure that organisations looking to provide humanitarian relief in sanctioned countries do not find themselves unintentionally violating sanction guidelines.

Ultimately, the speakers from the second panel all acknowledged in varying degrees that there is an urgent need to critically rethink how sanctions are being currently used, as their current usage often hinders conflict resolution and peace negotiations.

Image credit: photos by Mohamed Elewa Badar, John Balouziyeh and Sarah Galali.