Marjorie Cohn*
January 24, 2023
The Houthis say their attacks in the Red Sea will continue until there is a ceasefire in Gaza
In response to Israel’s assault on the people of Gaza in early October, Yemen’s Houthi movement, Ansar Allah, began mounting attacks on commercial ships in and around the Red Sea. The Houthis said the attacks were aimed at Israeli-connected or Israel-bound ships and they would continue until there is a ceasefire in Gaza. Meanwhile, the pressure on this vital trade route is impacting the global economy as ships are being redirected to more expensive routes.
On January 11, South Africa presented its case documenting Israel’s genocide in Gaza to the International Court of Justice. The following day, the U.S. and U.K. attacked 28 sites in Yemen. Tomahawk cruise missiles launched from a ballistic missile submarine killed five Yemenis and injured six. Four days later, the U.S. fired another cruise missile into Yemen.
Originally published by Truthout on January 23, 2024
The U.S. and Britain conducted large-scale airstrikes against about 12 sites in Yemen on January 22. These strikes were the eighth in almost two weeks and “signaled that the Biden administration intends to wage a sustained and, at least for now, open-ended campaign against the Iran-backed group that has disrupted traffic in vital international sea lanes,” according to The New York Times.
The U.S.-U.K. bombing campaign in Yemen, with logistical support from Australia, Canada, Bahrain and the Netherlands, is fanning the flames of a developing conflagration in a region already enraged by Israel’s genocide. “Israel’s unrelenting assault on the Gaza Strip is beginning to tip the Middle East into a wider regional conflict,” Murtaza Hussain wrote at The Intercept.
On October 8, the day after the Hamas-led attack on Israel, the United States sent an aircraft carrier to the region, closely followed by two destroyers and an armada of warships from 10 countries.
“With its decision to attack, the Biden administration appears to have opened itself up to a geopolitical checkmate by the Houthis,” Hussain noted. “Escalating the strikes against the rebels will likely bring more shipping disruptions — potentially counterproductive to mitigating economic consequences — and risk a full-blown regional war.”
The United States claimed it launched attacks on Yemen to “degrade Houthi rebels’ ability.” But “years of far more intensive U.S.-backed Saudi bombing have failed to destroy Houthi military capacity, and this campaign will similarly fail to achieve the stated objectives,” Phyllis Bennis wrote at In These Times. “It is not surprising that none of Washington’s current military actions are working to curtail the attacks in the Red Sea. Rather, they are dangerously worsening the already tense situation.”
When a reporter asked Biden outside the White House if the U.S.-U.K. airstrikes in Yemen had been “working,” he replied, “Well, when you say ‘working,’ are they stopping the Houthis? No. Are they going to continue? Yes.”
Moreover, the U.S.-U.K. bombing of Yemen violates both the United Nations Charter and U.S. War Powers Resolution.
U.S. Support for Saudi War in Yemen Contributed to Humanitarian Crisis
Since 2014, Yemen and the Houthis have been engaged in a civil war, which was exacerbated in 2015 by the intervention of Saudi Arabia with weapons and military support from the United States. The Saudis mounted indiscriminate airstrikes, targeting civilian and military targets alike. It had been called the worst humanitarian crisis in the world — until Israel’s genocide surpassed it.
Barack Obama supplied the Saudis with in-flight refueling and tactical intelligence for its bombing campaign. The U.S. backed the interdiction of air and sea delivery of food, medical supplies and replacement parts to the Houthis, and the Saudi-led coalition obstructed the provision of humanitarian aid from UN and NGO sources. This created an artificial famine that largely affected children. Obama also increased arms sales to Saudi Arabia to supply its war on the Houthis.
The United Nations Development Programme estimated that by the end of 2021, 377,000 Yemenis had died as a result of the war, including from lack of access to food, water and health care. More than 150,000 of the deaths were the direct result of armed conflict, which included 15,000 civilian casualties, the majority killed by Saudi-led coalition air strikes.
In January 2021, as he was leaving office, Donald Trump designated the Houthi movement as a “terrorist organization.” Later that year, the Biden administration removed the Houthis from the Foreign Terrorist Organization (FTO) list. But on January 17, the U.S. State Department designated the Houthis as a Specially Designated Global Terrorist group. Although the new designation has less stringent rules than the FTO listing, it subjects the Houthi movement to political and economic sanctions.
The Western media often claims that the Houthis are a proxy for Iran. “The widely held claim that the Houthis act as a proxy for the mullahs’ regime in Teheran is totally false. Historically, there has been virtually no connection between the Houthis and Iran — militarily, politically, economically or ideologically,” Michael Brenner wrote at Scheerpost.
In the current collaboration between Iran and the Houthis, Iran is supplying arms in exchange for the Houthis’ fight against Saudi Arabia. The Houthis, however, “operate with relative political independence,” Hussain noted in The Intercept, quoting Hisham Al-Omeisy, senior adviser on Yemen with the European Institute of Peace, who said, “[The Houthis] have their own mindset, agenda, and ideology.”
Violation of UN Charter
The U.S.-U.K. airstrikes on Yemen violate the UN Charter, which is part of U.S. law under the Supremacy Clause of the Constitution. The Charter requires that international disputes be settled peacefully. It forbids a state from using military force against another state, except in self-defense or with the approval of the Security Council. Neither of those exceptions apply here to legitimize the U.S.-U.K. strikes.
On January 10, the Council passed Resolution 2722, which calls for the Houthis to cease all attacks on merchant and commercial vessels. Although the resolution notes “the right of Member States, in accordance with international law, to defend their vessels from attacks,” it does not authorize the U.S. and the U.K. to bomb Yemen.
Actions in self-defense under Article 51 of the UN Charter can only be undertaken in response to an armed attack by a state against another state. The Houthis do not constitute a state, nor did the U.S.-recognized state of Yemen condone the Houthi attacks. Thus, the Houthis did not mount an “armed attack” on the United States which would trigger the right to Article 51 self-defense.
Violation of the War Powers Resolution
The U.S.-U.K. strikes also violate the U.S. War Powers Resolution. The Constitution makes clear that only Congress has the power to declare war, which it did not do before Biden mounted his bombing campaign in Yemen.
Under the War Powers Resolution (WPR), enacted in the wake of the Vietnam War, the president can introduce U.S. Armed Forces into hostilities or imminent hostilities in only three instances:
First, the president may do so if Congress has declared war, which has not happened since World War II. Second, the president may do so in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces” – a situation which in this case has not occurred. And third, the president may do so when there is “specific statutory authorization” (in this case there is not).
On January 12, Biden sent a letter to Congress under the WPR. He wrote that the U.S. and U.K. launched “discrete strikes against facilities in Yemen that facilitate Houthi militants’ attacks in the Red Sea region.” Although Biden invoked Security Council Resolution 2722, the resolution does not authorize the U.S.-U.K. airstrikes on Yemen.
Biden also cited the inherent right of self-defense in Article 51 of the UN Charter. Not only is self-defense not applicable because the Houthis are not a state, the U.S.-U.K. strikes aren’t even defensive. Former Congressman Justin Amash tweeted, “we know from the White House’s own statement that the U.S. strikes recently launched were nondefensive. The strikes were warned about well in advance and intended to deter, not to stop an incoming attack.”
Introducing “US armed forces into harm’s way, such as in the Red Sea, and then [using] the foreseeable attacks on the US forces in those circumstances as a basis for then using force without congressional authorization” amounts to “bootstrapping the defense of US forces that you placed in harm’s way as a justification for using military force,” Isabela Dias wrote at Mother Jones.
The WPR requires the president to report to Congress within 48 hours of initiating the use of military force and to cease hostilities unless Congress authorizes continued hostilities within 60 days, which it has not done. Both Democratic and Republican legislators have criticized Biden for launching airstrikes in Yemen without congressional approval.
Although the U.S. began bombing Yemen in October, Biden did not formally advise Congress until January 12.
Ending Israel’s Genocide in Gaza Is Key to Ending the Regional Violence
The key to preventing an all-out regional war is the cessation of Israel’s genocide in Gaza.
The alternative is frightening to contemplate. Continued airstrikes on Yemen will lead to “escalating tensions that strengthen the de facto Houthi blockade and elevate the potential for the conflict to expand into a full-fledged regional war,” Trita Parsi, executive vice president of the Quincy Institute for Responsible Statecraft, wrote in an op-ed in TIME magazine.
Parsi also argued that a ceasefire in Gaza is the best way to stop the attacks in the Red Sea. “A cease-fire is far more likely to curb Houthi and Iraqi militia attacks; reduce tensions on the Israeli-Lebanese border, where regular exchanges of fire have been taking place; secure the release of Israeli hostages held by Hamas; and, most important of all, stop further civilian casualties in Gaza,” he wrote.
“Anger toward the U.S. seems likely to grow in the region, as the Biden administration appears to be putting the global economy over Palestinian lives in its strikes on the Houthis,” Hussain observed in The Intercept.
“The local perception is that when Palestinian blood was being shed the last three months, no one was bothered, but when the economic interests of the West were threatened, they immediately acted,” Yemen expert Hisham Al-Omeisy said. “This message fits right into Houthi rhetoric and is resonating very strongly in the region,”
Oman, a close U.S. ally that mediates between the Houthis and international parties, fears that the U.S.-led airstrikes won’t deter the Houthis but will inflame regional tensions. “It is impossible not to denounce that an allied country resorted to this military action, while meanwhile, Israel is continuing to exceed all bounds in its bombardment, brutal war and siege on Gaza without any consequence,” said Oman’s Foreign Ministry in a statement.
Jordan’s security relationship with Israel has been increasingly strained since the beginning of the current war on the Palestinians in Gaza in October. Ayman al-Safadi, foreign minister of Jordan, accused Israel of “pushing the entire region towards more wars by continuing its aggression against Gaza and trying to open new fronts and drag the West into them.”
On January 4, Safadi announced that his country supports South Africa’s genocide case against Israel in the ICJ and stated that Jordan will file a legal intervention in the case.
“Urgent diplomacy is required [to stop the attacks in the Red Sea]. And ending Israel’s assault on Gaza remains the linchpin of any effort to calm the spreading regional violence,” Phyllis Bennis wrote in In These Times. “There is no military solution to military escalation in the Middle East: diplomacy is needed. And it needs to start with a cease-fire in Gaza now.”
The U.S. government is heightening the risk of regional war by bombing Yemen. Rather than providing military, economic, political and diplomatic support for Israel’s genocide, the Biden administration should push for a ceasefire in Gaza.
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*Professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers.
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