Advisory Legal Panel I: 
The Situation in Yemen 

Letter from the Dais

Dear Delegates,

Welcome to YMUN Taiwan!

I’m a first-year in Jonathan Edwards College hailing from the busy metropolitan city of Jakarta, Indonesia. Since freshman year of high school, I’ve competed in moot court, parliamentary debate, and Model UN—and I’m excited to bring my fascination for international politics to the Advisory Legal Panel here at YMUNT V. At Yale, I’ve been involved in YMUN and SCSY, as well as writing for Yale’s political magazine, The Politic. In my spare time, I love to explore the beautiful nooks and crannies scattered all throughout campus and enjoy a cup of coffee at a New Haven café. I also love to watch Netflix—House of Cards and Black Mirror are my favorite shows!

In this exciting, unique Advisory Legal Panel committee, we will play both the role of judge and lawmaker—to deliver an advisory ruling on an alleged war crime in Yemen and to draft a new international legal framework for cyber warfare. We will be exploring and applying important principles of International Humanitarian Law, such as the principle of distinction, necessity, proportionality, and humane treatment, all of which you may find in this topic guide. But although those ideas may seem lofty, and legal documents like the Rome Statute and Geneva Conventions may seem grand, it is our job to remember what is human behind all of this. We must keep in mind the children and families impacted from the alleged war crime we are discussing, and the disastrous consequences that might ensue from a cyberwar.

Just a note, please read the supplementary material in this topic guide! Our committee will adopt a different format than normal MUN committees and it would benefit everyone if you all understand how a case is argued in the International Criminal Court.

The Advisory Legal Panel will truly be an exciting and enriching committee. I hope you are excited for YMUNT V as I am! I cannot wait to meet you all. If you have any questions, please do not hesitate to contact me at gregory.jany@yale.edu.

Sincerely,

Gregory Jany

gregory.jany@yale.edu

Committee history

The International Criminal Court, established in 1998, is the highest judicial body that tries individuals accused of grave crimes concerning international justice, such as: war crimes, crimes against humanity, and genocide. With its international mandate (authority given by the international community) and power, it ushers in a new age of human rights protection that provides retribution for perpetrators and deterrence for future atrocities.

While the ICC operates as a traditional judicial body, with lawyers, witnesses, judges, and formal trials, our committee will be an ad-hoc advisory panel under the purview of the United Nations Security Council. It will be composed of law experts from countries around the world. These experts will deliver an advisory verdict on the Yemeni case and establish a legal framework for cyberwarfare. These experts, however, are not wholly independent as they serve as delegations of their home countries, with national interests and biases in mind.

Although in this committee you will not be members of the ICC, you will debate almost as if you are: using legal texts and standards that the ICC actually uses, and coming to conclusions that are intended for UNSC and ICC considerations. These legal standards are found in the Rome Statute and the customary body of international humanitarian law will provide a framework for our debate and discussion. As such, you will have to scrutinize legal terms and grapple with difficult and polarizing questions, which will require an understanding of the history of the ICC and its powers.

Since the end of the World War II, the international community entertained ideas of creating an international judicial body that would exist to adjudicate the most heinous of crimes. After a post-WWII criminal trial was created in Nuremberg and Tokyo, the UN Security Council also established tribunals in Rwanda and the former Yugoslavia, adjudicating the horrific genocide and human rights abuses that occurred in the two countries, respectively. In June 1998, the decades-long effort to create a permanent international court succeeded, and the United Nations adopted the Rome Statute, which lays out the goals and structure of the new International Criminal Court.

However, not all countries have ratified the Rome Statute. Doing so would mean agreeing to abide by warrants issued by the ICC and follow its judgment. This complicates the ICC’s equal-handed administration of justice. Countries like the United States, who are involved in many conflicts throughout the world, are hence unable to be held accountable as they do not fall under the jurisdiction of the ICC.This is especially troublesome, since the ICC has jurisdiction to open an investigation into a country and/or its leader when a member state of the Rome Statute or the Security Council requests it. Indeed, the ICC has been criticized for seemingly focusing its investigatory powers on African leaders, while other human rights allegations are directed against the US and other European countries. The ICC has a;so been plagued by additional allegations of ineffectiveness, securing two convictions in more than 15 years of operation. These long trials are expensive and they threaten the ICC's legitimacy, especially when it positions itself as a supranational court of justice.

FAQ: How will this committee operate during the conference?

The committee will adopt USA-UNA procedure, which is taught in our online delegate training program. Debate is organized through motions in the form of speaker's lists, moderated caucuses, and unmoderated caucuses. 

However, the First Topic (Situation in Yemen) will produce a different product from a usual MUN committee. Delegates are not tasked to create typical resolutions, but rather, a resolution that serves as an advisory decision on the two counts of alleged war crimes below. It should use clauses like "affirms", "proclaims", "declares", to explain why your bloc thinks that Mohammad bin Salman is guilty or innocent based on the two counts he is indicted under. It should contain point-by-point explanations about your bloc's argument about whether Mohammad Bin Salman's actions fulfills the elements of crimes, supported by evidence and legal interpretation (explained in the supplementary material section). However, delegates should still try to stick to their country's position on the matter and argue based on their country's perspective on the Saudi intervention in Yemen. This procedure should be an exciting opportunity for you to learn how international lawyers argue their cases. 

Our Second Topic (Cyberwarfare) will function like a typical Model UN committee.

If you have any further questions, please do not hesitate to contact me at: gregory.jany@yale.edu.

The war in Yemen is an ongoing conflict between the Houthis and the forces of Mansur Hadi, the current president of Yemen. The Houthi is a Zaidi political movement allied with former Yemeni president Ali Abdullah Saleh. A broad coalition, which includes Saudi Arabia, eight other Arab states, and logistical support from the US, France and the UK, are also involved in this conflict. Since 2015, this coalition force has launched massive military interventions to support Hadi’s government. They have employed airstrikes, naval blockades, drone strikes, ground troops, and aerial bombing, to weaken the Houthi forces.

The media often portrays the Yemeni war as a proxy war between Saudi Arabia and Iran. The Gulf Arab states accuse Iran of providing financial and military support for the Houthi forces. Saudi Arabia has also claimed that it is intervening in the conflict to prevent the spread of Iranian influence in the Middle East—seen as a threat to its own power in the region.

While this political dynamic may indeed be an important reason for intervention, Saudi Arabia had historically seen Yemen as a threat long before the 2015 war. The Saudi government views Yemen as resource-poor, over-populated, and unstable, perhaps due to Yemen’s republican government (instead of Saudi Arabia’s monarchy). The Saudis fear that Yemen export that instability to the region, especially since the Saudis share a border with Yemen.

Throughout the 1990s and the early 2000s, Saudi worries grew as the Houthi movement emerged as a voice for the Zaidis, a Shia sect (distinct from the commonly-held Twelver Shia in Iran) that represents 20-30% of the Yemeni population. Led by Hussein al-Houthi, the leader from whom the movement’s name comes from, the group railed against Yemeni government corruption, fought the state’s decision to end subsidies for fuel, and condemned the Yemeni’s government alliance with the United States. In 2004, the movement launched an insurgency against the central government, but failed. However, efforts to overthrow the government continued as the Houthis engaged in a border war with the Saudis in 2007, growing their expansionary ambitions. This border war galvanized the Saudi movement to improve its military, obtaining up to $90 billion worth of weapons in 2010 alone.

Yet the Houthis continued their efforts and supported the pro-democracy movement in the 2011 Yemeni Revolution, which overthrew then-President Ali Abdullah Saleh, who had ruled the country for 33 years. Saleh was then replaced by Abdrabbuh Mansur al-Hadi through an election. During the Yemeni revolution, the Houthis also managed to advance and gain control over more Yemeni territories, including the governorates of Saada, Al Jawf, and Hajjah.

In 2014, the Houthis allied with their former foe, President Ali Abdullah Saleh, and seized the capital Sana’a and the country’s second-largest port, the city of Hudeida. Houthi militants attacked the presidential palace, forced President Hadi to resign, and placed him under house arrest. However, Hadi later escaped from house arrest and managed to get to the port city of Aden, declaring the establishment of a legitimate government there. During this time, Iranian flights were spotted to land in Sana’a, allegedly carrying Iranian advisors and weaponry.

As the Houthis began to advance towards Aden in March 2015, the Saudis and the UAE feared that Houthis would institutionalize their control and allow Iran to gain power in the region. Within hours, the Saudi Minister of Defense, Mohammad Bin Salman, launched operation “Decisive Storm,” sending fleets of Saudi Air Force jets to bomb targets across Yemen. After this first attack, Saudi announced that nine other countries supported them in the coalition, including: Qatar, Bahrain, Kuwait, the UAE, Egypt, Jordan, Sudan, Morocco, and Pakistan

As the operation developed, the coalition began to send warships to install a naval blockade in the region, claiming that it would prevent the carrying of Iranian arms to the Houthis. However, the naval blockade also prevented fuel, food, and medicine to reach the local population, creating what Human Rights Watch termed a “humanitarian disaster.” The coalition also recruited local allies for a ground operation to engage the Houthis in artillery combat.

In the end, both warring parties are seen to have engaged in massive human rights violations. As of 12 September 2015, the UN Office of the High Commissioner for Human Rights claims that at least 5,1444 civilians had been killed and 7,207 wounded in the war.

Yemen, however, had been struggling even before the recent armed conflict. In terms of humanitarian needs, 40 percent of the country were food insecure and one million children under 5 years old were acutely malnourished before the war occured. At least 61 percent of the population was in need of humanitarian assistance—half of them were children. In 2015, the World Food Program estimated that 12 million people are now food insecure due to armed conflict—53 percent of the country.

In April 2016, both parties began peace talks in Kuwait. But, military fighting continued and the peace talks subsequently broke down. Awareness of the human rights violations that occurred during the Yemeni conflict continued to grow within the international community. In September 2017, the Netherlands and Canada proposed that the United Nations create an International Commission of Inquiry (the UN’s highest level of investigation) to begin probing alleged war crimes conducted by both the Saudi-led coalition and Houthi forces. Unsurprisingly, Saudi Arabia and other Arab countries objected and threatened to economically retaliate. After intense closed-door negotiations, a compromise was reached to send a group of “eminent experts” to investigate the truth behind the alleged war crimes.

In this Advisory Legal Panel, we will be discussing two specific cases, both of which occurred during the war in Yemen. You are tasked to determine whether or not the specified war crimes have been conducted under the associated charges. The facts of these case are laid out here, and they are numbered to allow for convenient citing during committee debate, but you may conduct additional research to provide new evidence to support your argument.

For the purposes of this committee, we will investigate the Minister of Defense Mohammad Bin Salman, who might potentially be charged under two counts for two separate cases:

Count One

With respect to the airstrike on al-Kubra community hall, Sana'a on the 8th of October 2016, and other airstrikes that led to civilian fatalities, on the basis of superior responsibility (Article 28(b)) -- the war crime of attacking civilians under article 8(2)(e)(i).

Case Study: Airstrike on al-Kubra Community Hall

1. On October 8, 2016, a congregation of several hundred Yemenis gathered in the al-Sala al-Kubra community hall, located in a residential area in Southwestern Sana’a. They were gathered for the funeral ceremony of Al al-Rawishan, the father of the Sanaa-administration’s interior minister, Jalal-al Rawishan. A significant number of military and political leaders affiliated with the Houthi-Saleh forces were expected to attend.

2. Around 3.20 pm, air-dropped bombs detonated in the Salah al-Kubra community hall. It was followed by a second bomb, which occurred three to eight minutes after the first. At least 827 civilians were dead or injured. Initial reports from Human Rights Watch declared that at least 110 people had been killed and 610 wounded.

3. Sources from the coalition initially denied responsibility for the attack, but the coalition also announced it would jointly investigate the incident with the US the next day. On October 12, King Salman from Saudi Arabia directed the King Salman Center for Relief and Humanitarian Aid to work with the Yemeni government and the UN to provide medical help for airstrike victims by transporting them to medical facilities abroad.

Smoke rises from the community hall in Sanaa where Saudi-led coalition warplanes attacked a funeral on October 8, 2016. © 2016 Khaled Abdullah/Reuters

Source: Human Rights Watch and a report from the Panel of Experts on Yemen

COUNT TWO

With respect to the naval blockade in Yemen from March-May 2015, on the basis of superior responsibility -- the crime against humanity of extermination under article 7(1)(b) and 7(2)(b)

1. During the period of March and April 2015, according to shipping logs, coalition forces did not allow fuel tankers to moor at Yemeni ports. At the same time, coalition forces granted permission to 19 ships carrying rice, grain, palm oil, steel, and timber to berth at Hodaida and Saleef ports.

2. As of May 1, 2015, seven ships carrying 349,000 metric tons of fuel supplies were anchored outside Yemeni territorial waters awaiting permission to dock at the port. One of the ships carried around 33,000 metric tons of gasoline, which covers Yemen’s needs to cover two days of its consumption needs during peacetime. Human Rights Watch reported that on April 23, at 4:06 pm, six coalition marine officers boarded the vessel and inspected its cargo for one hour. But, despite repeated requests from the ships, the coalition did not grant the ships permission to dock.

3. In late 2016, a Singaporean ship carrying 636 containers of steel, paper, and medicine were stopped in Red Sea. They were blocked from berthing in Hodeida, a Yemeni port city.

4. In 2017, Human Rights Watch reported that the Saudi-led coalition “arbitrarily diverted or delayed” seven fuel tankers headed to Houthi-controlled ports between May and September. One of the shipping companies sailed to Yemen regularly and always received UN Clearance, but the coalition would undergo lengthy inspections on every trip—costing the company up to US$10,000 per day per ship. These costs are not borne by the shipping company, but rather are passed on as exorbitant prices to civilian Yemenis.

5. Fuel prices, which have increased by more than 50 percent since the conflict began and up to 10x in other areas, have resulted in increased food prices. Hospitals also often find themselves short on money to afford fuel for generators. Rising fuel prices also exacerbated the water shortage since there was great reliance on diesel-fueled water trucks and pumps.

6. Human Rights Watch received information that applications to dock had to be filed with the Yemeni Transport Minister based in Jeddah, Saudi Arabia, and must be subject to approval by coalition forces. In addition,vessels must prove that their cargo “will not benefit the Houthis.” However, the shipping sources that talked to the Houthis said they did not understand what this provision entailed.

7. A UN Panel of Experts, however, reports that the Houthi had earned up to US$1.14 billion from fuel and oil distribution on the black market, making it one of the most important sources of revenue for the Houthis. They also use the fuel for military purposes, including for transport and engines.

Sources: HRW 2016 Yemen Report, Reuters Investigation, and HRW 2017 Investigation on the Naval Blockade

A video from the New York Times:

Your Role

The job of this Advisory Panel is to determine whether Minister Salman can be charged with the two counts described above. Doing this requires members of the panel to answer several complicated legal questions that arise from Salman’s investigation, including, but not limited to, the following:

1) The naval blockade made it difficult for fuel to reach the Yemeni population. Does it matter that the Saudi coalition did not launch a direct attack, but rather blocked this fuel? What is significant about the transport of fuel, both for civilians and the Houthis?

2) What military advantage was gained from the airstrike on Al-Kubra community hall? Does such an advantage justify the deaths of civilians? What about other cases of Saudi coalition airstrikes?

3) Does the militarization of the Houthi forces justify the Saudi coalition actions

4) As a superior, is Minister Salman responsible for any illegal actions by his inferiors? Does it matter if we do not know whether Salman directly orders those attacks?

5) If found guilty, what should the penalty imposed by the ICC be? See Rome Statute Article 77.

For a convenient summary, here are the charges against Minister Salman:

Count One: With respect to the airstrike on al-Kubra community hall, Sana’a on the 8th of October 2016, and other airstrikes that led to civilian fatalities, on the basis of superior responsibility (Article 28(b)) -- the war crime of attacking civilians under article 8(2)(e)(i) of the Rome Statute.

Count Two: With respect to the naval blockade in Yemen from March to May 2015, on the basis of superior responsibility -- the crime against humanity of extermination under article 7(1)(b) and 7(2)(b) of the Rome Statute.

In order to answer these questions and create an argument to determine whether Minister Salman is guilty, read the supplemental material below:

SUPPLEMENTAL MATERIAL: How do you prove or disprove a charge?

IMPORTANT: It is crucial that you read the following material to ensure you understand how our committee will work, and you can deliver a verdict.

In the International Criminal Court, the Prosecution and the Counsel for the Defence are both able to present their case to the judges. However, the Prosecution has the burden of proof to prove that the perpetrator is guilty beyond reasonable doubt, which means that the evidence provided must be more than circumstantial, evidence

To do so, there are a list of elements of crimes which must be systematically proven point by point.

With the war crime of attacking civilians, listed under article 8(2)(e)(i), the elements of crimes include:

1. The perpetrator directed an attack.

2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

3. The perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.

4. The conduct took place in the context of, and was associated with, an international armed conflict.

5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

With the crime against humanity of extermination, listed under article 7(1)(b), the elements of crimes include:

1. The perpetrator killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of a population. Note: The infliction of such conditions could include the deprivation of access to food and medicine.

2. The conduct constituted, or took place as part of, a mass killing of members of a civilian population.

3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

4. The perpetrator knew that the conduct was part of, or intended the conduct to be part of, a widespread or systematic attack directed against a civilian population.

The Prosecutor must argue that all those elements are fulfilled to show that the perpetrator is guilty. Conversely, the Counsel for the Defense can prove that the perpetrator is innocent under the law, just by arguing that one or several of the elements are unfulfilled.

Indeed, some words in the elements may seem vague. For example, what does “directed” actually mean? Does directed mean that the perpetrator has to be physically at the scene of attack or not? What does “intended” mean? How can we prove that the perpetrator possesses intent? This is where legal support comes into play, in the form of definitions or explanations provided by the Rome Statute, the Geneva Conventions and its Additional Protocols, and the body of customary international law (which include general principles of international law). These sources can be used to provide clarifying definitions or explanations on those key legal terms.

Previous rulings by international courts like the ICC and the ICTY, also called case law, also shows you how the law is applied in different situations. All of these provide legal support for your evidence and will allow you to interpret what the different elements of crimes actually mean.

In addition to the elements of crimes, we will also discuss the perpetrator’s mode of liability. Here, Minister Mohammad Salman is charged under superior responsibility. What does superior responsibility mean? Commanders and other superiors have their own criteria to be held criminally responsible—all of which are found in Article 28(a) of the Rome Statute. Research what elements need to be fulfilled to prove superior responsibility and, once again, refer to legal support.

To guide our debate during committee, you will be representing the judicial experts from your country. This means that you should be prepared to research your country’s position on the topic and be prepared to represent that position during our committee debate. However, there is substantial room for you to present your own ideas—ICC judges, are after all, independent—but they need to have legal support, as outlined in the supplementary material.

Nevertheless, here is a broad outline of bloc positions for the topic:

Saudi Arabia and its Coalition allies:

Since 2015, Saudi Arabia have attempted to lobby the United Nations to not launch an investigation into its conducts in Yemen. Saudi Arabia have denied that it has conducted any human rights abuses, stating that it is “alarmed and outraged” by accusations launched by human rights groups like Amnesty International and Human Rights War. The Saudis claimed that the coalition aimed to achieve “the protection of civilians” and “have complied with international law at every stage in the campaign to restore Yemen’s legitimate government.” Hence, in the Advisory Panel, Saudi Arabia and its coalition allies are likely to deny the charges, either through evidence or legal interpretation of the Elements of Crimes.

Netherlands and Canada:

The Netherlands and Canada are the original sponsors for the launching of an international commission of inquiry that could have led the Saudis to be referred to the International Criminal Court. It can be seen that both countries, and its allies, would want to see a thorough and unbiased investigation into the Saudi’s conduct, and a possible indictment if war crimes are proven.

The United States, the United Kingdom, and France:

The United States government, the United Kingdom, and France have faced accusations of supporting Saudi Arabia and its allies. Indeed, the US House of Representatives passed a resolution, which acknowledged that the US has assisted Saudi Arabia and the United Arab Emirates in “conducting aerial bombings in Yemen,” especially through the provision of military intelligence, and providing “mid-air refueling services” to their warplanes. There have also been revelations that the British directly sent special forces to Sanaa and participated in identifying targets for drone strikes. All three countries have welcomed the compromise struck in the UN between the Arab states and the Netherlands and Canada. On one hand, these countries are internationally recognized as proponents of human rights.On the other hand, a charge for Saudi Arabia may lead to accusations of human rights violations against the US, UK and France. In light of recent preliminary ICC investigations against the US and UK for their conduct in the Afghan war, new accusations may further tarnish the global reputation of these countries.

If you wish to start with a beginner’s introduction to international humanitarian law, here is an interactive app from the International Committee of the Red Cross that explains the basic principles of IHL. A more concise introduction can be found here.

Once you’re ready to start forming your argument, read the supplemental material above to guide you on how to prove that Minister Salman is guilty. Then, begin reviewing the elements of crimes for the two counts Minister Mohammad bin Salman is indicted under.

After that, do consider what specific key terms used in the elements of crime mean and how they relate to the context of our case:

You should also research other key terms you find relevant and might support your argument.

To interpret these terms, you can rely on these sources:

•For customary international law, conduct your research here.

•For case law, you can look at previous rulings by the International Criminal Tribunal for Rwanda (ICTR) here and here, the International Criminal Tribunal for Yugoslavia (ICTY) here and here, the International Criminal Court here and the UN database here.

•Additional Protocol I of the Geneva Conventions will be especially relevant for legal sources about the protection of civilians, both in the First Charge and the Second Charge, and it can be found here

Remember, the ICTR and ICTY have delivered both guilty and innocent rulings for different cases, even if the charges were the same. Try to research what key facts in the case may have differentiated the rulings by the ICTR and ICTY. Do certain legal interpretations favor a ruling one way or another depending on the facts as hand?

After you gather sufficient legal evidence for your research, begin reviewing the facts of the case to investigate the two counts Minister Mohammad Bin Salman is indicted under and see whether certain interpretations of the terms can be applied here.

For the naval blockade, you can look for more details here:

•Here for facts on recent cases of naval blockades. You can research further within the Human Rights Watch website as they publish many case studies and analysis regarding this issue.

•Here for an academic piece about the legal considerations surrounding the blockade

•Here for an investigative piece on a confidential UN assessment of war crimes in Yemen

For the alleged civilian attacks, you can look for details here:

•Here for the UN report from the Panel of Experts on Yemen, who had investigated possible breaches of international law

•Here for the Human Rights Watch report on human-rights abuses inn Yemen

•Here for an Aljazeera article providing a broad overview on the Saudis admitting that its attacks has hit civilians

Also, try to research for the Saudi’s coalition defenses, especially from official Saudi statements and media reports on the coalition viewpoint. We do want to explore both sides of this divisive issue and provide a thorough and balanced investigation.

GLOSSARY

Mandate: an authorization to act given to a representative

Statute: an international instrument setting up an agency and regulating its scope or authority

Adjudicating: make a formal judgment or decision about a problem or disputed matter 

Insurgency: a condition of revolt against a government that is less than an organized revolution and that is not recognized as belligerency

Galvanize: to stimulate or excite

Legitimate: accordant with law or with established legal forms and requirements

Institutionalize: to incorporate into a structured and often highly formalized system

Eminent: great excellence, or prominence

Exorbitant: : exceeding the customary or appropriate limits in intensity, quality, amount, or size

Circumstantial: evidence that tends to prove a fact by proving other events or circumstances, which afford a basis for a reasonable inference of the occurence of the fact at issue

Complied: to conform, submit, or adapt (as to a regulation or to another's wishes) as required or requested

Indictment: a formal written statement framed by a prosecuting authority and found by a jury (such as a grand jury) charging a person with an offense