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The Laws of War: Under Siege or Gaining Ground?
The Laws of War: Under Siege or Gaining Ground?
Watch List 2018 – First Update
Watch List 2018 – First Update
Speech / Global

The Laws of War: Under Siege or Gaining Ground?

Speech by Louise Arbour, President & CEO of the International Crisis Group, on the occasion of the Kirby Lecture at the Australian National University, Canberra, 23 June 2011.

I am delighted to have been invited to deliver this lecture, named in honour of Michael Kirby, a great jurist, judge, humanitarian, human rights defender, friend, and, in the judicial parlance that we once shared, I could have said brother.[fn]I wish to thank Jon Shephard for his research assistance and insights in the preparation of this paper.Hide Footnote I am also particularly happy to be doing so in the presence of the distinguished Chancellor of The Australian National University, a great politician, policy guru, trail blazer, lawyer malgré lui, my friend Gareth Evans. The fact that I am here, connected to both of them, allows me to use my favourite word in the English language, a word that has no real French equivalent: serendipity.

My connection to Michael brings me back to our years on the bench, geographically far apart, but I like to think united by a shared vision of the law and the judicial function. Empowered by a judicial mandate anchored in the Canadian Charter of Rights and Freedoms, I lived in an era denounced by some as having encouraged the legalisation of politics, celebrated by others as having allowed the rule of law to truly flourish. Either way, where I come from, the law mattered.

My connection to Gareth reflects the latest chapter of my entry into the world of armed conflict. Not surprisingly, I came to it from a legal perspective, but under his influence I broadened my horizons to embrace the murkier waters of political analysis, particularly after I took over from him the direction of International Crisis Group. So it is today through this mostly political lens that I want to share with you a few observations on the relevance, or lack thereof, of the law of armed conflict. It is with no false modesty that I disclaim any sophisticated expertise in the current state of that body of law. What I once knew is dated, and after a few years away, I don’t even trust the skills I once had to figure it out. But I am interested not so much in the state of the law as in its role and impact in the prevention, management and resolution of armed conflict.

Allow me then to start with a recent statement by one who can claim to have some insight into the politics of it all. The laws of war are increasingly outdated, and threaten to “handcuff all states fighting terrorism”.[fn]‘PM Netanyahu addresses the Saban Forum’, Israel Ministry of Foreign Affairs, 15 November 2009.Hide Footnote  So claimed Israeli PM Benjamin Netanyahu shortly after the publication of the Goldstone Report, which sharply criticised Israel for alleged violations of humanitarian law. Netanyahu is not alone in his criticism. In May of this year, Sri Lanka’s representative to the UN told the Security Council that the “one-size-fits-all” approach to humanitarian law fails to take into account the changed nature of today’s conflicts and imposes unfair burdens on states struggling to rid themselves of terror and insurgency.[fn]Security Council meeting 6531, 10 May 2011, p. 31.Hide Footnote  This in the wake of the bloody end to Sri Lanka’s civil war, which saw an estimated 40,000 civilians killed, many by government forces, in just a few months.

Israel and Sri Lanka are far from being the only critics of humanitarian law. In recent years, a growing number of voices have questioned the contemporary applicability of the laws of war. Citing, amongst other things, the failure of terrorist and insurgent groups to abide by the Geneva and Hague Conventions, the increasingly unclear line between civilians and combatants and the use of what has been termed “lawfare” to challenge states’ military options, they have called for a radical rethink. Another group of critics has taken the opposite line: far from tying states’ hands, they argue, the lex specialis of humanitarian law paves the way for states to inflict huge civilian casualties with impunity. Moreover, they suggest, even those aspects of the law that could provide some protection regularly go unheeded, and violators go unpunished.

The debate has been largely fuelled and mediatised by the politics of the War on Terror. But it is also rooted in the renewed relevancy of a body of law that, until the mid 1990s, was largely unimplemented, invisible, and the preserve solely of normative discussions amongst specialists. The growth of international criminal law, first in the launch of the ad hoc tribunals for the former Yugoslavia and Rwanda, then in the daring moves of national magistrates operating under the framework of universal jurisdiction, and finally in the creation of the International Criminal Court, have made Milošević, Pinochet and Bashir if not household names, at least the recognisable faces of international crime. In my view, the recent criticisms mounted against the laws of war reflect less their inadequacy than their increased effectiveness. And, in addressing below the emerging concept of lawfare, I will further suggest that implementation comes as much from compliance as from coercion, and that this is as it should be.

There are undoubtedly gaps and ambiguities in humanitarian law which need to be addressed; this much even the International Committee of the Red Cross has recognised. But the Geneva Conventions remains sound, and should not be too quickly dismissed. Critics allege that international law fails to take into account many issues pertinent to today’s conflicts; in fact, however, many of these issues are expressly addressed – just not in the way critics would like.

Current criticisms of the laws of war come in the context of significant changes in the conduct of conflict. Most humanitarian law was designed at a time when armed conflict usually meant a declared war between two or more states with identified territories and armed forces; today, such conflict is the exception, rather than the rule. Today’s conflicts are usually internal, and often involve one or more amorphous non-state actors. These changes have provoked a number of intersecting and cross-cutting criticisms, which go both to the scope and the substance of humanitarian law. The common thread of these is that the laws of war, at least as currently constituted, are no longer valid. I will attempt to address, very summarily, the core criticisms. They relate, largely, to the definition of armed conflict, the fundamental principles of distinction and proportionality, the issue of lawfare and, to a lesser extent, the notion of reciprocity.

Armed Conflict

International humanitarian law is a specialised body of rules and principles activated only when there is an armed conflict. When it does apply, it imposes a framework that is at the same time both more permissive for, and, some suggest, more constraining on state action. I think it is important to first test this premise. In the current context, the debate is essentially focussed on the question of protection of civilians. The body of law we are interested in offers, essentially, a quid pro quo: it requires the protection of civilians as an exception to a granted right to kill. In contrast, domestic criminal law, if compliant with international human rights standards, would prohibit extra judicial executions and restrict the right of law enforcement officers to kill only in self-defence, or in the reasonable use of force in performing an arrest, for instance.

Simply put, the law of armed conflict contains exceptions to the right to kill, while domestic law enforcement contains exceptions to the right to life. However, both are governed by non-excluded laws of general application, such as the prohibition of genocide or the absolute prohibition of torture. This point is important because the arguments about the special needs of the war on terror often seem to assume that it can only operate in a legal black hole; it is not only IHL that is seen as too constraining, but also a large part of international human rights law, including the Torture Convention and the Convention of the Rights of the Child, for example, which imposes a special regime for the treatment of child soldiers, not to mention a good part of domestic criminal law.

With that understood, the question still arises as to when there is an armed conflict sufficient to activate the laws of war. For international armed conflicts, the situation is relatively clear. The issue is more complex, however, in relation to non-international – or, more accurately, non-interstate – armed conflict. Additional Protocol II to the Geneva Conventions, which governs such conflicts, has a high threshold for application: parties must have, inter alia, territorial control, formal organisation and responsible command.[fn]Additional Protocol II to the Geneva Conventions of 1949, Article 1(1).Hide Footnote  Even Common Article 3 to the four Geneva Conventions, which is designed to apply as broadly as possible, requires, according to the influential Pictet Commentary, elements of formal structure and territorial control. Perhaps the most useful guidance on this issue is found in the ICTY’s Tadić decision, in which it suggested that the two operative conditions for determining the existence of an armed conflict are (i) the intensity of the conflict and (ii) the organisation of the parties.[fn]Tadić jurisdiction decision, ICTY Case No. IT-94-1-T, 1995, paragraph 70.Hide Footnote  But even this leaves much room for dispute.

Ultimately, no overarching determination as to whether the laws of war should apply to fights against rebels, terrorists or insurgents will ever be possible: a case-by-case approach will always be necessary. Certain episodes in the ‘war on terror’, for example, might reach the level of armed conflict, as might the repression of new illegal armed groups in Columbia or the military action undertaken by the government of Mexico against organised criminal gangs, despite the warning in the Tadić decision that “banditry, unorganised and short-lived insurrections, or terrorist activities … are not subject to international humanitarian law”.[fn]Tadić trial judgment, ICTY Case No. IT-94-1-T, 1997, paragraph 562.Hide Footnote

One must be wary of calls for an expansion of the application of the laws of war. As indicated before, the rules applicable during armed conflicts are far more permissive than those applicable during times of peace – some stringent human rights standards are displaced by the far less strict provisions of humanitarian law.

The laws of war are a compromise, designed to offer a minimum level of protection to non-combatants, and to combatants who have laid down their arms, in terrible circumstances. The price for the protections offered is the recognition of a circumscribed right for states to kill, to wound, to imprison without trial and so on. To extend this waiver to all situations where violence is used would be to distort both the spirit and the letter of the law. On the other hand, when a true situation of armed conflict exists, as it clearly did in the last few months of the battle between the government of Sri Lanka and the LTTE in early 2009, to characterise it instead as an internal campaign against terror in an attempt to escape the requirements of distinction and proportionality in the law of armed conflict is, at its core, a call for lawlessness.

Regardless of the justification for war in the first place (jus ad bellum), the laws of war (jus in bello) require that states respect the rights of enemy combatants, limit the damage inflicted by their forces and take steps to preserve the lives of civilians, even as their opponents flout those same rules to gain a military advantage. This lack of reciprocity, in particular, is often advanced as an argument for rejecting the applicability of this body of law. This argument must be rejected. Non-state actors are bound by legal rules, whether under domestic law or, arguably, under international customary law. And humanitarian obligations undertaken by states by treaty are not dependent on reciprocity, as they would otherwise be eviscerated. If one violates legal obligations, the answer is in the enforcement of the law – through personal criminal responsibility for example – not in the lifting of all rules for all sides. I will come back to this idea under my discussion of the concept of “lawfare”.

At the heart of current criticisms lies the issue of civilian protection, governed by the principles of distinction and proportionality. In modern conflicts, critics argue, these principles are simply untenable.

Let me now turn briefly to these two legal requirements.

Distinction

Essentially, the law permits belligerents to attack each other, but not civilians. Article 51 of the First Additional Protocol to the Geneva Conventions states that “ … the civilian population as such, as well as individual civilians, shall not be the object of attack … ” The rule also applies to non-international armed-conflicts, by virtue of Article 13(2) of the Second Additional Protocol. Under the terms of the Protocols, civilians are those persons who are not members of State armed forces or of organised armed groups belonging to a party to an armed conflict. Such civilians are protected against direct attack unless and until they “directly participate” in hostilities. The issue becomes even more complex under the principle of proportionality which expands the protection of civilians beyond the prohibition against direct attacks, as we will see below.

Detractors argue that the line between civilians and combatants is increasingly blurred, as civilians lend their support to insurgents and rebels on the one hand, whilst states make increasing use of civilian and military contractors on the other.[fn]See, for example, Gross, M, Moral Dilemmas of Modern War: Torture, Blackmail and Assassination in an Age of Asymmetric Conflict (CUP, 2009: Cambridge), Ch. VII.Hide Footnote  The formulaic approach of the Geneva Conventions – which envisages a clear distinction between members of standing armies or militias and civilians – is, they argue, anachronistic and confusing. Today’s conflicts involve a spectrum of actors from ‘civilians’ to ‘combatants’, by way of terrorists, insurgents, political sympathisers, supporters and private contractors. This complexity means that it is increasingly difficult for parties to conflict to determine who may, or may not, be legitimately targeted.

In particular, tactics adopted by guerrilla and terrorist groups – using human shields, dressing as civilians, blending into the general population – have driven some states to claim that the principle of distinction unfairly benefits non-state groups. As a result, some have sought to expand the category of legitimate targets to include civilians even when not directly participating in hostilities. During the 2009 Gaza War, for example, an IDF spokesman declared that “[o]ur definition is that anyone who is involved with terrorism within Hamas is a valid target,” a clear departure from the current standard based on direct participation on hostilities.[fn]‘Gaza conflict: Who is a civilian?’, BBC, 5 January 2009.Hide Footnote

Criticism of the current system undoubtedly carries some weight. The approach to determining rights and obligations under Convention law places too much weight on considerations of status and group membership, and not enough on a functional test focussing on the activities of the individuals or groups involved. The formal requirements for combatant status laid out in Article 4 of the Third Geneva Convention – which include openly bearing arms and wearing a uniform – are simply no longer appropriate to today’s conflicts. But this does not justify abandoning the principle of distinction.

The law recognises that anyone who is directly participating in hostilities is a legitimate target for attack, regardless of their broader status. The ICRC has recently produced guidance on this issue, which holds that an individual is so participating whenever their actions are “likely to adversely affect … military operations”, where there is a direct causal link between their actions and the resulting harm, and where the harm is intentional.[fn]Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law (ICRC, 2009: Geneva), p. 16.Hide Footnote  As a result, insurgents and terrorists are not protected as civilians when they are preparing for, carrying out, or returning from attacks. The fact that such actors recover their protection as civilians when they are no longer participating in hostilities does not mean that action cannot be taken against them through usual law enforcement methods.

Undoubtedly, debate will continue as to who really warrants protection as a civilian. This is very welcome: discussion and argument are the best ways to develop our understanding of the law. Guidance from NGOs, academics and international tribunals will help to develop and refine our understanding over time. But the fundamental principle of distinction remains valid. The current formulation does allow for the targeting of ‘civilian combatants’ when they are engaged in hostilities. To expand humanitarian law to allow the targeting of those civilians not directly involved in hostilities would be a dangerous step, and would entirely undermine the rationale of civilian protection.

I should add, in passing, that the expression “innocent” civilians confuses the debate. There is no requirement of innocence in the determination of status or function. But the use of the expression is revealing. When fighting rebels or insurgents, for example, it is very tempting for states to expand their view of the enemy to not only enemy combatants but also to political sympathisers or passive supporters or even, ultimately, to all members of the community that the combatants purport to represent. It is in that sense that the state would not consider these civilians “innocent” civilians, and would therefore prefer that they be denied protection.

Proportionality

Proportionality is the second vexing question in the law of modern internal armed conflict. Proportionality has two distinct aspects. The first belongs to the jus ad bellum. It requires that even when acting in self-defence, a state should use a measured, proportionate military response. It is the second aspect that concerns us, as it relates to the conduct of hostilities (jus in bello). Under Article 51 of the First Additional Protocol, an otherwise legitimate target may not be attacked where harm to civilians would be “excessive in relation to the concrete and direct military advantage anticipated.” Whilst no equivalent provision exists for non-international armed conflicts, relevant authorities all hold that the principle nonetheless applies, as it forms part of customary law.

There is great scope for argument as to what constitutes an “excessive” number of civilian casualties in any given situation. On the one hand, one can argue that the standard is purely a proportional one: civilian casualties could be, theoretically, unlimited, provided that the military advantage was suitably important. Sir Christopher Greenwood, for example, argues that

“the crucial question is whether other weapons or methods of warfare available at the time would have achieved the same military goal as effectively while causing less suffering or injury.”[fn]Greenwood, C, Command and the Laws of Armed Conflict (SCSI, 1993: Camberley), p. 24.Hide Footnote

On the other hand, the reference to “excessive” casualties might be taken to impose an absolute limit, regardless of the value of the military target. This is the view taken by Pictet Commentary, which holds that “incidental losses and damages should never be extensive.”[fn]ICRC Commentary to the Additional Protocols to the 1949 Geneva Conventions, p. 626.Hide Footnote  Both of these approaches have some merit, and discussion as to the correct standard will long continue.

A troubling trend in recent years, however, has been the proliferation of more extreme views regarding the requirement of proportionality. At one end of the spectrum are those who argue that any sort of proportionality is overly restrictive and should be done away with. In the aftermath of the 2006 Israel-Lebanon war, Israeli former general and current National Security Adviser Yaa’kov Amidror proclaimed that

“[n]ow those around Israel understand that Israel has certain red lines and that if these lines are crossed, Israel’s retaliation will be intentionally disproportionate. As a small country, we cannot allow ourselves the luxury of reacting proportionally.”[fn]Amidror, Y, ‘Lebanon II – the Fallout’, Jerusalem Post, 17 January 2007.Hide Footnote

The defeat of the LTTE in Sri Lanka – with its extraordinarily high civilian cost – is perhaps the most appalling example of what happens when states abandon proportionality. The killing of 40,000 civilians in the last few months of the Sri Lankan conflict shows what can happen when all thoughts of proportionality are abandoned. Whatever definition of “excessive” one adopts, it is beyond question that slaughter on this scale, inflicted through the indiscriminate shelling of supposed safe zones, the targeting of hospitals and the post defeat execution of prisoners, is out of all proportion to any potential military gain. And yet the Sri Lankan approach is touted by some as the future of anti-rebel operations. Troublingly, Sri Lanka hosted a conference at the start of this month entitled “Defeating Terrorism – the Sri Lankan Experience”, at which the Minister of External Affairs claimed that “the entire body of international law must be revisited,” presumably to be more favourable to the Sri Lankan approach to conflict.[fn]‘Sri Lanka seeks new international laws to fight terrorism’, Reuters, 31 May 2011.Hide Footnote

At the other end of the spectrum, there are those who believe that the idea of “collateral damage” actually legitimises civilian deaths, and allows parties to conflict to slaughter civilians with impunity. Marc Herold writes:

“civilian casualties are not accidents or mistakes. They result from careful calculation by … commanders and military attorneys who decide upon the benefits of an air strike versus the costs in innocent civilian lives lost.”[fn]Herold, M, ‘Truth as Collateral Damage’, Guardian, 22 October 2008.Hide Footnote

The implication is that, by making allowances for civilian deaths, humanitarian law allows states to be lax in their targeting decisions. Herold and others therefore suggest that the standard should become far stricter, closer to the human rights standard of the inviolability of life. This view has its own difficulties: calls for a far stricter standard are unrealistic, and risk alienating states and fostering further resistance to the entire humanitarian regime.

Debate as to what humanitarian law truly requires in this regard will undoubtedly continue. Like all jurisprudential norms, clearer standards will evolve on a case-by-case basis. Ideas of proportionality, excessiveness, reasonableness, fairness, forseeability, recklessness, negligence, actual or constructive knowledge and the like are not foreign to other areas of legal thinking. They are applied daily in courtrooms as well as in the day-to-day management of human affairs. They are perfectly suitable standards by which a proper balance can be achieved between military and humanitarian imperatives. As with many other aspects of humanitarian law, the development of jurisprudence and other guidance will provide greater clarity over time.

Lawfare

A final issue relates to the recent growth in so-called ‘lawfare’. The term has been used, over the last decade or so, to mean the use or abuse of the laws of war as a military tool. In short, it means “the use of law as a weapon of war”.[fn]Dunlap, C, ‘Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts, Working Paper (Boston: Harvard Kennedy School, 2001), p. 5.Hide Footnote  This can manifest itself in two ways: either through threatening the prosecution of senior figures allegedly involved in violations – U.S. and Israeli officials have most often been targeted in this way – or by highlighting abuses in the court of public opinion. In that sense it is akin to propaganda as a military tool, or as others might put it, a form of ‘hearts and minds’ initiative.

Lawfare is, in and of itself, neither good nor bad. If violations have been committed, then it is both right and proper that they should be exposed and that attempts be made to address them, through whatever forum is available. If they have not, the law provides a means by which to rebut the accusations. When they have acted in accordance with the law, states should not be afraid to justify their actions. Of course, lawfare can have a negative impact. Spurious or outright false claims threaten to bring the entire concept of humanitarian law into disrepute, and can create the erroneous perception that it is the law itself – and not its deliberate misapplication – which is at fault. But crying “lawfare!” in an attempt to discredit those who make accusations creates the appearance that the accused cannot justify their actions, and simply compounds the negative impac

The emergence of this concept of lawfare is reminiscent, for me, of the claims of legalisation of politics and the denunciation of judicial activism that were prevalent in the early days of my judicial career, and which will be familiar to Michael Kirby. The resistance to constitutionalism and implementation of fundamental legal norms, particularly in the field of human rights, expressed itself in attacks against the legal and judicial system itself, just as the claims of obsolescence of the laws of war mask the discomfort with its more robust recent implementation. Yet the reality is that international humanitarian law today reflects the best of international law, and of law generally, in that it fosters increased compliance with a minimum of coercion. The relevance, and the potency, of the law of armed conflict, was best expressed by Charles J Dunlap Jr, Deputy Judge Advocate General, Headquarters US Air force who said, in a 2009 article:

“If anyone doubts the role of law in 21st century conflicts, one need only pose the following questions: what was the US military’s most serious setback since 9/11? Few knowledgeable experts would say anything other than the detainee abuse scandal known as “Abu Ghraib”. That this strategic military disaster did not involve force of arms, but rather centred on illegalities, indicates how law has evolved to become a decisive element – and sometimes the decisive element – of contemporary conflicts.”[fn]Dunlap, C, ‘Lawfare: A Decisive Element of 21st-Century Conflicts?’, Joint Forces Quarterly 54 (2009), p. 34.Hide Footnote

Later in the same article, the author claims that lawfare “has emerged as the principal effects-based air defence methodology employed by America’s adversaries today”, referring in particular to the demonization of air strikes “through the manipulation of the civilian casualties” they can produce.[fn]Ibid., p. 36.Hide Footnote

Whilst we should always be wary, therefore, of attempts to manipulate and misuse the law, we should also embrace its potential to foster greater compliance.

Conclusion

This need for modernisation and clarification is not unique to the laws of war. It is a natural part of any legal system. It will come from greater public awareness, greater compliance and greater enforcement. Ultimately, however, any interpretation of the Geneva Conventions must take into account those Conventions’ prime objective: the protection of non-combatants.

The humanitarian objective of civilian protection has become so central to the management of armed conflict in the last decade that it has in fact become itself a casus belli. Resolution 1973 of the UN Security Council has authorised “all necessary measures”, including military action but excluding occupation, to protect civilians in Libya. Not only, therefore, must civilians be protected in war; they may also be protected by war.

With this in mind, any ‘re-interpretation’ of the laws of war that seeks to limit civilian protection seems absurd. Radical solutions – which might involve granting states more leeway when fighting terrorists, or making a distinction between aggressors and defenders so as to give greater scope of attacks to the “good side” – should not be considered. In fact, I suspect, calls for these sorts of revisions stem more from the desire of certain states to legitimise their recent violations of humanitarian law than from any real concern with bringing the law up to date.

Despite some progress in compliance and in enforcement, allegations of serious violations continue to surface regularly, and even the most shocking often remain unaddressed. Defiance knows no limits, a point perhaps best illustrated by Sri Lanka’s recent assertion that “ensuring zero civilian casualties was an overriding priority” in its conflict with the LTTE.[fn]‘Military conference to share methods of war’, BBC, 1 June 2011.Hide Footnote  But the momentum has already shifted against violators. The challenge now is to put in place a universal mechanism of enforcement. The reach of the International Criminal Court is expanding, but is unlikely to become universal any time soon. And its jurisdiction remains ex post facto, addressing only the most serious violations. Calls have been made for a universal monitoring body. The current push for investigations is always ad hoc, and not always successful.

As Charli Carpenter has pointed out, other international regimes have well-established observation mechanisms: the IAEA for non-proliferation, the WHO for international medical standards and the WTO for the rules of free trade. She concludes that,

“[w]ithout an independent monitoring mechanism capable of making informed, systematic, nonpartisan claims about what has happened on the ground, it is all too easy for countries to exploit the gray areas in humanitarian law.”[fn]Carpenter, C, ‘War crimes reporting after Goldstone’, Foreign Affairs, 9 May 2011.Hide Footnote

Developing such a mechanism could serve to provide empirical data on humanitarian abuses, to make it more difficult for states to brush off claims of abuses and provide the global public with a stronger basis for action.

In the end, if the laws of war are under siege, the siege has only served to highlight their continued relevance and the need for their stronger implementation. The reduction in the number of armed conflicts since the end of the cold war is in part a reflection of increased international involvement in the prevention of conflict, including through the work of organisations like International Crisis Group. The reduction of civilian casualties in armed conflict is due, in large part to the moral, political and operational impact of the law. And it’s gaining ground. 
 

A Shiite Huthi rebel fighter stands guard during a rally marking the third anniversary of the Saudi-led coalition's intervention in Yemen, in the capital Sanaa on March 26, 2018. A Saudi-led military coalition intervened in Yemen on March 26, 2015 to rest Mohammed HUWAIS / AFP

Watch List 2018 – First Update

Crisis Group’s first update to our Watch List 2018 includes entries on Burundi’s dangerous referendum, militant Buddhists and anti-Muslim violence in Sri Lanka, the impact of the Venezuelan crisis on the region, and the situation in Yemen. This annual early-warning report identifies conflict situations in which prompt action by the European Union and its member states would generate stronger prospects for peace.

Crisis Group Watch List 2018 (First Update)

The Watch List identifies conflict situations in which prompt action by the European Union and its member states would generate stronger prospects for peace. Giuseppe Fama, EU Relations Manager, explains the conflicts included in this update. Crisis Group

Burundi’s Dangerous Referendum

On 17 May, Burundians will vote on constitutional amendments that would allow President Pierre Nkurunziza to prolong his stay in power. Those new provisions also could start to dismantle the carefully negotiated Hutu-Tutsi ethnic balance, defined in the 2000 Arusha agreement that helped end Burundi’s civil war. A major outbreak of violence in the country does not appear likely around the vote, despite a deadly attack on a village on 12 May; the status quo could even drag on for years. But the regime’s repression, the potential demise of power sharing in Burundian institutions and the crumbling economy are harbingers of instability.

Although the European Union (EU) has lost leverage over Nkurunziza’s government in recent years, it retains a strong interest in preventing such instability. The EU and its member states should closely watch developments before, during and after the referendum, and continue to explore channels for pressuring the government while supporting the population. These include encouraging African leaders and the African Union (AU) to renew mediation attempts between the regime and the opposition, while keeping Burundi in the international spotlight. As the Burundian economy collapses, the EU, which suspended direct budgetary support to the Burundian government in 2016, should also take steps to ensure that the aid it now channels through the implementing agencies of the UN, EU member states and international non-governmental organisations helps Burundians as best possible.

Increasing Repression as the Referendum Approaches

The regime has designed the constitutional changes primarily to remove any obstacle to its control of the state apparatus.

The government’s main intention with the forthcoming referendum is to lengthen presidential mandates from five to seven years. This change would restart the clock on the two-term limit – rather than annulling it – potentially giving President Nkurunziza a further fourteen years in power. The new draft constitution also stipulates that ethnic quotas in parliament, government and public bodies be reviewed over the next five years. These quotas, intended to protect the Tutsi minority by guaranteeing the Tutsi 40-50 per cent representation in different state institutions, including the army, were a key part of the Arusha agreement.

The regime has designed the constitutional changes primarily to remove any obstacle to its control of the state apparatus. But in the process it may also be laying the groundwork for reversing ethnic checks and balances. The same is true of the draft constitution’s provisions to reduce the number of vice presidents (currently there are two, one Tutsi and one Hutu) to one and to replace the two-thirds majority requirement for parliament to pass particularly significant legislation with a simple majority.

The regime, including the ruling party’s youth wing, the Imbonerakure, has carried out a campaign of intimidation against anyone who opposes the referendum or calls for a No vote. It is using threats of violence to push Burundians to register for the vote in hopes of minimising abstention, and identifying people in campaign meetings. The government has banned Western media outlets – the BBC and Voice of America – from radio broadcasting for the duration of the campaign, while its own propaganda machine is in full swing. It has forced citizens to make financial contributions that it claims will support forthcoming elections.

The forced march to the referendum has further accentuated divisions among President Nkurunziza’s opponents, despite opposition factions making a renewed attempt to align their positions at the start of 2018. The Amizero y’Abarundi coalition and the Sahwanya-Frodebu party, which remain in Burundi, have both declared they intend to campaign for a No vote. The exiled opposition, under the umbrella of the Conseil national pour le respect de l’accord d’Arusha (CNARED), is calling for a boycott. The divide over the referendum exacerbates the historical divisions over strategy and personal rivalries within the opposition.

If the frequency of armed clashes between the army and insurgents has declined since 2016, human rights abuses continue.

Significant violence around the referendum appears unlikely, despite a 12 May attack on a village near the Democratic Republic of Congo border in which 26 people were reported killed by unidentified assailants. This attack comes after a relative absence of major security incidents since 2016, as armed opposition groups have suffered several setbacks. Some of their members were arrested by the Tanzanian government in 2017, sent back to Burundi, and have since disappeared. Those attacks that have taken place, which were launched from South Kivu in the neighbouring Democratic Republic of Congo, have failed to inflict significant losses on Burundian security forces or generate local support. But if the frequency of armed clashes between the army and insurgents has declined since 2016, human rights abuses continue. According to the human rights organisation la Ligue Iteka, 456 people were assassinated, 283 tortured and 2,338 arbitrarily arrested in 2017, the vast majority by the government.

President Nkurunziza and his party are developing a doctrine that mixes personality cult, religion and historical mythology to justify his prolonged stay in power. The president is now referred to as “supreme traditional leader”. The president and his wife, both active in new Pentecostal churches and prayer crusades, adhere to a theocratic vision that blends traditional Burundian signs of power with divine attribution; tellingly, the government is planning to build a large prayer centre in Gitega where ruling party members will be required to attend lengthy retreats. More broadly, this emerging doctrine presents a Manichean view of history wherein a harmonious pre-colonial Burundi was later spoiled by the machinations of external powers, in particular Belgium, though language pointing the finger at foreigners also tends to contain veiled references to the role played by their supposed Tutsi allies.

Economy and Development in the Doldrums

The Burundian economy has been severely hit by the loss of overseas aid since 2015, and by the flight of human and financial capital. Gains made in health and education since the early 2000s – notably drops in infant mortality and increasing numbers of Burundian children in school – have stalled. Shortages of currency and fuel have afflicted all sectors. Some 430,000 Burundians have fled to neighbouring countries, principally Tanzania.

Though many Burundians already struggle to make ends meet, the government is introducing new taxes and ad hoc levies. As its relations with Western governments have worsened, it has turned to Turkey, China and Russia for aid. But while these countries might afford the government political support and some financial respite, they are unlikely to offer the sort of budgetary or technical help that Western donors provided. Meanwhile, the impact of private investment in the mineral sector on the wider economy is unlikely to be significant, at least in the short term.

The regime has cracked down on civil society groups that have worked with international donors, including by imprisoning NGO members on spurious charges.

After negotiations with the government under Article 96 of the Cotonou Agreement, the EU and its member states decided in March 2016 to suspend cooperation due to Burundi’s rights abuses. Instead, it now channels development aid through international NGOs, the implementing agencies of EU member states and UN agencies. The president and his top officials paint European aid policy and sanctions (which target a handful of those officials) as deliberately aimed at hurting the Burundian people. In some cases, the regime has cracked down on civil society groups that have worked with international donors, including by imprisoning NGO members on spurious charges.

Mitigating Conflict Risk through Continued Support to the Population

The EU and its member states should take steps to help check Burundi’s repressive authoritarianism and alleviate deteriorating living conditions for its people.

On the former, Nkurunziza’s government has brushed off sporadic pressure from Western donors and actors such as the UN Office of the High Commissioner for Human Rights to open space for its opponents. Nor have mediation efforts of the sub-regional body, the East African Community (EAC), made progress. Indeed, some African leaders appear inclined to believe the government’s argument that there is no crisis to mediate.

That argument is flawed. The regime probably can keep dissent under wraps for some time. But the consolidation of its rule and dismantling of the Arusha power-sharing provisions augur ill for the country’s stability over time. The EU and its member states should press African powers and the AU to renew mediation attempts between the regime and the exiled opposition, with the aim of ensuring a credible election in 2020. They should strive to maintain international attention on Burundi, with EU member states on the UN Security Council pressing to keep Burundi on the council’s agenda. The EU also should uphold its position that conditions in the country do not allow for a free and fair referendum.

In light of its 2016 suspension of direct support to the government, the EU needs to redouble efforts to find ways to ensure its aid supports the population. In addition to the support it channels through international NGOs, it should continue pursuing its plan to directly support local NGOs, but with particular caution not to expose them to risk. This could mean providing them with adequate funding to reinforce their own management and legal capacity in case the government continues to harass them through the courts. The EU should also reinforce its delegation in Bujumbura and strengthen the tracking mechanisms with its implementing partners to prevent any misuse of its funds.

Militant Buddhists and Anti-Muslim Violence in Sri Lanka

Late February and early March 2018 saw Sri Lanka’s most serious and widespread incidents of anti-Muslim violence since gaining independence in 1948. Police failed to contain Sinhala Buddhist mobs in central Kandy district; the rioting appeared close to spinning out of control before President Maithripala Sirisena declared a state of emergency on 6 March. Within 48 hours of army and other military units being deployed, order was restored, but not before more than two dozen mosques had been destroyed, hundreds of houses and businesses vandalised, and two people killed. The episode shredded the ruling coalition’s already tattered reformist credentials and hurt chances for post-war reconciliation across ethnic and religious boundaries. It revealed the depth of mistrust and fear between Sri Lanka’s Buddhists and Muslims, and underscored the risk of more violence to come.

The European Union, its member states and other international partners should support efforts by the Sri Lankan officials, religious leaders and civil society groups to prevent further violence and address the underlying mutual misunderstanding between communities. It can do so by:

  • sending strong messages to the government, through all available channels, that it supports the strict enforcement of laws against hate speech and religious violence, including through criminal prosecutions;
     
  • offering financial and technical support to efforts by the government, civil society or media organisations to rapidly fact-check and counter rumours on social and traditional media; and by
     
  • supporting efforts to strengthen local-level inter-religious committees, in particular by assessing the effectiveness of past initiatives and sharing lessons learned to help redesign such bodies in innovative ways.

Anti-Muslim Sentiment and the Recent Bloodshed

Buddhist activists feed on Sinhala perceptions that over recent decades the country’s Muslims have grown more publicly and devoutly religious, and thus alien.

Discussions of Sri Lanka’s long, bloody history of conflict tend to focus on the military campaign to crush the Liberation Tigers of Tamil Eelam (LTTE) and earlier leftist uprisings. Yet anti-Muslim violence is an enduring feature of modern Sri Lankan history and grew worse after the LTTE’s 2009 defeat. Many Sinhalese, including influential monks, have long feared that Sri Lanka’s foundational Buddhist and Sinhala character was under threat, with weak politicians incapable of protecting it. Whereas, before 2009, Sinhala nationalist insecurity centred on Tamil separatism, today nationalists point to Muslim “extremism” as the primary threat. Militant Sinhalese accuse Muslims of using clandestine means to suppress the Sinhala Buddhist population and gain economic and demographic dominance. Drawing in part on global Islamophobic discourse and events in Myanmar, Buddhist activists feed on Sinhala perceptions that over recent decades the country’s Muslims have grown more publicly and devoutly religious, and thus alien. Muslims make up under 10 per cent of the population, Sinhala Buddhists 70 per cent.

The deadly train of recent events began in the south-eastern town of Ampara, where Sinhala mobs attacked Muslim shops and a mosque on the night of 26-27 February. The violence was sparked by unfounded claims, spread through social media and backed by a video recording of an apparent “confession”, that staff in a Muslim-owned restaurant had placed a “sterilisation pill” in the food of Sinhala customers. Police were slow to react or make arrests and quickly released the alleged rioters on bail.

Activists and Muslim ministers had warned the prime minister and other senior officials that violence was brewing elsewhere. The police’s lax response in Ampara appeared to encourage militant Buddhist networks to strike again. Following appeals by Mahasohon Balakaya, an anti-Muslim group based in Kandy, and prominent monks, crowds turned out in Kandy on 5 March, angry at an earlier murder of a Sinhala Buddhist man by four Muslim men (there was no evidence the crime was communally motivated and all four attackers were promptly jailed). Over the next three days, Sinhala Buddhist mobs moved systematically from village to village burning and vandalising Muslim shops, houses and mosques. Police were again slow to respond, and in at least two cases, members of the Special Task Force – the elite police paramilitary unit – attacked Muslims, possibly in an attempt to falsely implicate them in the riots.

A Return to Hardline Nationalist Politics

The violence came at a moment of confusion and weakness for the ruling coalition, weeks after a stinging defeat in local elections at the hands of former President Mahinda Rajapaksa’s newly formed Sri Lanka Podujana Peramuna (SLPP, Sri Lanka People’s Front), which ran a strongly nationalist campaign, including warnings of alleged abuses by Muslims. The changing political climate reinforces sympathy for ultra-nationalist agendas in the overwhelmingly Sinhala and Buddhist bureaucracy. It deepens the reluctance of police, bureaucrats and politicians to take action that could be seen as supporting Muslims.

Although President Sirisena and Prime Minister Ranil Wickremesinghe campaigned on a promise to crack down on militant groups, their coalition government has overseen not a single prosecution for previous religious violence.

In 2013 and 2014, under Rajapaksa and his powerful brother, Gotabaya Rajapaksa, who headed the police and military, security agencies were accused of supporting militant Buddhist groups. Among these, the most prominent was Bodu Bala Sena (Buddhist Power Force, or BBS), which incited deadly anti-Muslim riots in Aluthgama in June 2014. State support reportedly included facilitating large BBS rallies, allowing its cadres to publicly harass and intimidate critics with impunity, and intervening in criminal cases against militant Buddhists, including by pressuring victims to withdraw legal complaints – or not to file them at all. However, after January 2015, when Mahinda Rajapaksa was voted out, violent anti-Muslim campaigns were supposed to be a thing of the past.

Yet, although President Sirisena and Prime Minister Ranil Wickremesinghe campaigned on a promise to crack down on militant groups, their coalition government has overseen not a single prosecution for previous religious violence. Militant Buddhist protests and attacks on mosques and Muslim businesses have continued, albeit at a lesser intensity. Online hate campaigns and militant organising have also proceeded apace, and fear and mistrust of Muslims remain as high as ever. Indeed, since coming to power, Sirisena himself and a senior cabinet member have met numerous times with BBS chief Galagoda Aththe Gnanasara and other militant monks. While officials claim the meetings were to encourage dialogue, most observers believe they aimed at shoring up the government’s credibility with Buddhist nationalists. Other ministers have called for BBS leaders to be prosecuted.

The government is running out of time to develop a strategy or build the political will to address two central issues underlying recent violence: Sinhala Buddhist nationalism and its politically powerful mix of entitlement and insecurity; and impunity for violence done in the name of protecting Sinhala and Buddhist dominance.

Preventing Violence against Muslims

The current high tensions and suspicions are deeply rooted and cannot be resolved quickly. Nonetheless, much can be done by the government and other actors to address misconceptions and rebuild trust. The EU can support these efforts in a variety of ways, as suggested below, but it must do so with discretion, taking its cues from supporters of reform in the government and civil society, and recognising Sinhala sensitivities about foreign involvement.

The EU should send strong messages to the government that it supports criminal prosecutions for religious violence.

Most important is for the government to conduct a quick, impartial investigation into the March violence and to speed up prosecutions for past actions. An expeditious inquiry would send a signal to those who might be tempted to commit violent acts in the future, and strengthen forces of reform in the judiciary, police and other state institutions. Some militant Buddhist leaders have been arrested for their role in organising the violence in Kandy. That is a positive first step, but it will bear fruit only if indictments and prosecutions follow. Ongoing cases against Gnanasara – for contempt of court and assault, among other charges – and other militant monks should be allowed to proceed to indictment or otherwise be concluded. The government should insist the police apply Sri Lanka’s International Covenant on Civil and Political Rights (ICCPR) Act, which has tougher penalties for hate speech and anti-minority violence than the regular criminal code.

The EU should send strong messages to the government that it supports criminal prosecutions for religious violence, including through the ongoing human rights monitoring process that accompanies EU Generalised Scheme of Preferences (GSP+) trade benefits, and in its regular dialogues with the government, including the meeting of the Working Group on Governance, Rule of Law and Human Rights in June 2018 and the EU-Sri Lanka Joint Commission meeting in fall 2018. Such prosecutions would be best framed as combatting not only anti-Muslim attacks, but also the larger phenomenon of impunity that has harmed all communities and places all citizens at risk of arbitrary violence.

The government can take other relatively easy, low-cost measures to develop a comprehensive and well-resourced information strategy to counter myths and misperceptions about Muslims. It could straight away establish an office tasked with rapidly fact-checking and countering rumours on social media, which, as the March incidents and earlier episodes have shown, are powerful sources of incitement. The office should liaise closely with the police and aim for quick distribution through all forms of state and private media, including social media. The EU and member states could offer financial and technical support to efforts by the government, civil society or media organisations on fact-checking.

The EU could also support existing projects by Muslim leaders to reach out to Buddhists, including monks, to explain and demystify Muslim teachings and practices.

In parallel, the government should strengthen existing district-level inter-religious committees to act more effectively as early-warning and mediation mechanisms. The committees should include police, influential monks, local government officials and local politicians, as well as Muslim representatives, and should report directly to the president and prime minister in emergencies to ensure that effective interventions are authorised when they are needed. Government-sponsored committees will need to coordinate better with civil society-led inter-religious groups, which have had limited impact over the years in part because they are often delinked from government and Buddhist religious authorities. The EU should support such committees, in particular by assessing the effectiveness of current and past initiatives and sharing lessons learned to help redesign such bodies.

The EU could also support existing projects by Muslim leaders to reach out to Buddhists, including monks, to explain and demystify Muslim teachings and practices, and familiarise them with what happens in mosques. Initial outreach programs have reportedly been well received by the monks involved. One option for EU support would be funding for European religious and community leaders and officials to share with leaders of all communities their experiences and lessons learned from their own inter-religious community work.

Venezuela: The Region Feels the Impact

International efforts to broker a solution to Venezuela’s implosion so far have not borne fruit. The crisis is spilling across Venezuela’s borders, with some 1.5 million Venezuelans fleeing the country over the past year and a half. Venezuelan President Nicolás Maduro’s government is unable or unwilling to reverse the economic and social collapse brought on by its misguided policies. It frustrated the last round of talks between it and opposition representatives by unexpectedly calling an early presidential election, even as those negotiators discussed reforms to help level the playing field. That vote, now scheduled for 20 May, is more likely to aggravate than resolve the crisis, as the EU’s April declaration on the situation in Venezuela identified. Most opposition leaders call for a boycott, arguing that Maduro’s re-election is predetermined. Latin American governments in the ad hoc Lima Group, as well as those of the United States, Canada and Spain, have declared they will not recognise the result should the elections proceed as planned. The European Parliament endorsed the same stance in a resolution adopted at the start of May.

The EU, U.S. and other Western governments have imposed targeted sanctions on dozens of government officials, including the president and vice president. The U.S. has also banned most loans to Venezuela and is considering some form of oil embargo. A solution to the crisis can only come through a negotiated transition, which will require new talks between the government and opposition and additional pressure on the government. Ideally, Lima Group members would use the threat of their own targeted sanctions – such sanctions from Latin American governments would be almost unprecedented – to help push the government back to the negotiating table. To contribute to such a strategy, the EU and its member states, should:

  • Agree with Lima Group governments and the U.S. on clearly delineated steps the government should take to have Western sanctions lifted and avert Latin American sanctions.
     
  • Caution against the oil embargo floated by the U.S. and called for by some opposition hardliners, which would worsen the humanitarian emergency.
     
  • Encourage China, during engagements with Chinese officials, to help nudge Maduro to accept talks.

At the same time, efforts to contain the humanitarian crisis should continue. To this end, the EU and its member states should:

  • Reinforce their support for migrants and refugees along Venezuela’s borders.
     
  • Continue to seek out opportunities for delivering aid inside the country.

Particularly for the latter efforts, the EU will need to maintain a strict separation between the provision of humanitarian assistance and political demands on the government.

Humanitarian Emergency

Over eight million Venezuelans cannot afford three meals a day. Protein has disappeared from many of their diets. Essential medicines are lacking.

Venezuela is sinking ever deeper into a profound economic and social crisis. Annual inflation could reach upwards of 300,000 per cent by year’s end. Despite a government plan to strike three zeroes off Venezuela’s currency, cash is almost impossible to obtain, hitting the poor, many of whom have no other means of payment, particularly hard. Over eight million Venezuelans cannot afford three meals a day. Protein has disappeared from many of their diets. Essential medicines are lacking: for some such medicines only 20 per cent of the quantity needed is available; others have entirely run out. Many of those suffering chronic diseases like cancer, HIV/AIDS or haemophilia are dying for lack of treatment.

Most public hospitals cannot guarantee running water or working lifts, let alone equipment such as X-ray machines. Patients are forced to provide their own medical and surgical supplies. Many operations are cancelled because blood banks lack reagents to ensure transfusions are safe. Long-controlled diseases like measles and diphtheria are making a comeback. Parts of the country are in the throes of a malaria epidemic. Yet the Venezuelan government denies the humanitarian crisis exists, portraying any coverage of the crisis as misinformation designed to undermine its rule. It also rejects much humanitarian aid, arguing that such efforts are part of a foreign plot to oust it.

As many as 1.5 million people have left the country in the past eighteen months, and a similar number may leave in the course of this year. The exodus has placed public services in neighbouring countries under strain, with governments in countries as far away as Chile having to adapt immigration regulations accordingly. Temporary shelters and soup kitchens catering to Venezuelans have been set up in Colombian and Brazilian border towns. UN agencies and the EU are now beginning to provide international aid in those locations.

Political Deadlock

A presidential election is scheduled for 20 May, but is unlikely to provide a way out of the crisis. In February, the government brought forward the election by more than six months, thus sabotaging internationally facilitated talks with the opposition over electoral reforms that were underway at the time. Most opposition parties are boycotting the poll, but beyond that do not offer a coherent strategy for pressuring the government.

Parliament has been rendered largely powerless, especially after a new Constituent Assembly, dominated by ruling party loyalists, was elected last year in a vote the opposition also shunned.

Former state Governor Henri Falcón of the Avanzada Progresista party, with the backing of two other small parties, is contesting the presidency. To do so, he has broken with the Democratic Unity (MUD) opposition coalition, which includes most of the more moderate opposition parties that had been negotiating with the government and are now planning to boycott the polls. The opposition’s harder-line wing, now represented by the Soy Venezuela movement, is calling for a “humanitarian intervention” – for the U.S. to intervene militarily, in other words – and for President Maduro to be impeached and tried for crimes against humanity. On 17 April, parliament, in which opposition politicians, mostly from parties in the MUD, hold a majority, voted overwhelmingly to approve Maduro’s trial for corruption by an ad hoc “Supreme Court in exile” – composed of judges appointed to the Supreme Court by the parliament and later forced into exile. But this initiative will have little practical effect. Parliament has been rendered largely powerless, especially after a new Constituent Assembly, dominated by ruling party loyalists, was elected last year in a vote the opposition also shunned.

Polls indicate that most opposition voters will abstain on 20 May, offering Maduro a clear chance of victory despite popularity ratings below 30 per cent. Even if Falcón were to win, the government’s control of electoral authorities, the Supreme Court – which has the final word on electoral disputes – and the security forces means it would have the power to block his victory. The absence of credible international observer organisations, which declined to deploy observers given the conditions in which the vote is being held, also gives Maduro a free hand.

Dozens of military officers, including commanders of key units such as the armoured Ayala battalion in Caracas, have been detained for allegedly plotting against the government. Their arrests lend credence to widespread accounts of unrest in the barracks. With the exception of a minority of mostly top military leaders, who are accused of benefiting from corruption and other criminal activities, members of the armed forces suffer the same deterioration in living standards as other Venezuelans. Military canteens often provide little or nothing to eat. That said, a coup attempt, while impossible to rule out, would be hard to pull off: the armed forces are fractured and extensively penetrated by counter-intelligence.

International Reaction

Venezuela’s international isolation has intensified markedly over the past year, with regional governments in particular turning their back on Maduro, especially after the breakdown of talks in February. Further sanctions are likely unless the president postpones the vote and takes measures to level the playing field. That said, exactly how the threat by Latin American and other governments to “not recognise the results” would be put into practice is unclear. Many governments already have withdrawn ambassadors from Caracas. But entirely severing diplomatic relations could reinforce the government’s siege mentality and backfire.

The Lima Group issued a fresh statement at the mid-April Summit of the Americas, which the summit’s host, Peru, barred Venezuela from attending. That statement called for free and fair elections and the restoration of democracy. The group also emphasised the need for humanitarian assistance, both within Venezuela and in neighbouring countries hosting Venezuelans that have left. Meanwhile, France, Germany, Italy, Spain and the UK, together with several Latin American governments, Canada, Japan and the U.S., have backed a joint initiative to locate and seize those assets of Venezuelan officials that they have reason to suspect have been acquired through corruption.

Recommendations to the European Union and its Member States

Venezuela’s crisis is now a grave threat not only for its own people, but also for the wider region. A lasting solution requires a negotiated transition. It also requires comprehensive economic reform, which can only be carried out by a government that enjoys international political and financial support. The starting point must be a return to negotiations between the government and opposition leaders.

Thus far, the threat of economic collapse has not persuaded the group around Maduro to participate in such talks, which would, in essence, be aimed at negotiating the end of one-party rule and the restoration of democracy. Top officials perceive potential exit costs as extremely high, and fear they would risk prosecution for alleged corruption, drug trafficking and human rights violations were they to lose power. For its part, the opposition is split into three main factions, each frequently adopting tactics that contradict those of the other two. Calls for military intervention by the harder-line Soy Venezuela faction are particularly counterproductive, fuelling the government’s accusations that humanitarian aid is a foreign plot.

To encourage a negotiated solution to the crisis, the EU and its member states should work closely with the Lima Group, the U.S. and other concerned governments to present a united front.

With no political solution in sight, the EU and its member states should continue and expand their critical humanitarian assistance along the lines described by the European commissioner for humanitarian aid and crisis management after a visit in March to the Venezuela-Colombia border area. Their efforts should include helping neighbouring countries cope with the burden on welfare services due to unprecedented migrant and refugee flows. The EU shall continue providing assistance to those affected and seek additional ways to deliver support to the population, which requires working around the government’s refusal to acknowledge the crisis, particularly by clearly separating political from humanitarian demands on the government, while strengthening Venezuelan civil society groups and foreign non-governmental organisations able to deliver food and medical aid to vulnerable populations. The EU and its members also should use their influence in multilateral bodies, including the UN, to ensure those bodies do all they can to alleviate suffering, including ensuring adequate funding and providing accurate information on humanitarian conditions in Venezuela.

To encourage a negotiated solution to the crisis, the EU and its member states should work closely with the Lima Group, the U.S. and other concerned governments to present a united front. All should coordinate their sanctions policy and diplomatic initiatives designed to bring about negotiations. This means agreeing on a set of measures that the government would have to take to have those Western sanctions that already exist lifted and avoid further sanctions, including from Latin American governments. The EU and its member states, however, should argue against wide-ranging economic sanctions, including an oil embargo. If the elections take place on 20 May, EU member states could use the opportunity presented by the 28 foreign ministers’ meeting scheduled shortly thereafter to coordinate their response.

A clear list of demands would allow sanctions against individuals, like those the EU introduced against seven top officials in January, to be gradually lifted if the government moves in the right direction. The EU should continue using its existing channels with the opposition to encourage them to unite around a credible strategy.

China, which thus far has played an important role propping up the Maduro government but shows some signs of tiring of its economic mismanagement, could contribute to a solution. The EU, together with Western and Latin American governments, should advise Chinese officials of the importance of nudging Maduro to accept talks, and thereby promote a stable and prosperous Venezuela. China also should participate in plans for a major economic and financial rescue package in the event of a transition agreement.

Prospect of Talks and Threat of Escalation Both Rise in Yemen

As the Yemen war enters its fourth year, prospects for military escalation and greater regional spillover are growing. The Saudi-led coalition’s military campaign along the Red Sea coast and in the Huthis’ home governorate of Saada, coupled with intermittent missile barrages fired by the Huthis at Saudi Arabia, threaten to quash the opportunity to revive the political process presented by the appointment of a new UN special envoy, Martin Griffiths. Military escalation could trigger direct confrontation between Saudi Arabia and its allies, particularly the United States, and Iran, which Riyadh accuses of assisting the Huthis in developing their missile program.

In this environment, the EU and its member states should:

  • As an urgent priority, help prevent the looming Saudi-led coalition invasion of the Red Sea port of Hodeida, which would compound the already acute humanitarian crisis and could spark a wider war; such efforts would involve diplomatic engagement with Riyadh and Abu Dhabi, ideally in coordination with the United States; and publicly opposing such an invasion, while condemning and pressing the Huthis to end their missile attacks against Saudi Arabia. Quiet outreach to Tehran could help, urging Iran to use what influence it has with the Huthis to discourage such missile attacks.
     
  • Assist the UN envoy in reviving a political process that is more inclusive and realistic. EU member states on the UN Security Council (France, the Netherlands, Sweden and the United Kingdom) could promote a new Security Council resolution that better supports the UN envoy’s efforts than the April 2015 Resolution 2216, which is outdated and places unrealistic demands on the Huthis. The EU delegation to Yemen is well placed to assist the new envoy if talks materialise, notably by encouraging the Huthis’ cooperation.
     
  • Adopt a clear, public policy line on south Yemen, where separatist sentiment is increasing; such a line would oppose a unilateral move toward independence but recognise southern Yemenis’ grievances and the importance of revisiting the question of state structure and decentralisation.
     
  • Continue urgent efforts to alleviate the war’s humanitarian fallout, including by demanding from the coalition unhindered humanitarian and commercial access to all seaports, including Hodeida, as well as the Sanaa airport.

Risks of Escalation and an Opening for Diplomacy

On 4 December 2017, the Huthis killed their former partner, Ali Abdullah Saleh. Since then, the Saudi-led coalition and its Yemeni allies have acted as if the military and political tides have shifted in their favour. They have tried to pull former Saleh supporters to their side, encouraged rifts within the Huthi movement, stepped up efforts to target the group’s leadership and pressed the Huthis on a number of war fronts.

After killing Saleh, the Huthis are simultaneously more open to diplomacy and more willing to up the military ante in response to coalition offensives.

In these endeavours they have had some success. Between December 2017 and February 2018 the United Arab Emirates (UAE) and aligned Yemeni fighters won important tactical victories in Hodeida and Taiz provinces. Since then coalition-aligned forces have made small but steady gains, though not enough to shift the overall military balance. As in the past, the coalition has overestimated its ability to harm the Huthis in their northern highland strongholds. On 19 April, a coalition airstrike killed the head of the Huthi Supreme Political Council, Saleh Sammad, the de-facto president of the north and the highest-ranking Huthi killed thus far. Known as a moderate within the movement who could work with the late President Saleh’s party, his death is unlikely to reap significant military gains for the Saudi-led coalition but is a blow to peace prospects. Internal divisions within the anti-Huthi front continue to be its Achilles heel: some pro-Saleh fighters have joined the war against the Huthis, but many refuse to support President Abed Rabbo Mansour Hadi and his partners in Islah, an Islamist party. Islah and Hadi affiliates are at particular odds with UAE-aligned groups in areas such as Taiz and in south Yemen, which was an independent state prior to 1990.

After killing Saleh, the Huthis are simultaneously more open to diplomacy and more willing to up the military ante in response to coalition offensives. They have stated publicly and privately that they are ready to negotiate with Saudi Arabia over security concerns and to re-engage with the UN process under the new envoy. It is unclear if this readiness is a product of military pressure or an increased sense of security, as in the past the Huthis had cause to worry that Saleh would strike a deal behind their backs. Either way, their increased interest in talks offers hope of a political breakthrough.

That said, 2018 has seen an unprecedented uptick in Huthi missile attacks on Saudi Arabia. There is growing evidence of Iranian supply of Huthi weapons, including missile and drone technologies. For the Huthis, coalition attacks on Hodeida, the main port in the territories they control, and Saada, their home governorate, represent existential threats. Hodeida in particular is a red line. The coalition’s blockade, ostensibly to prevent weapons smuggling to the Huthis, has made the port a chokepoint for goods entering the north; prolonged fighting there could compound Yemen’s humanitarian disaster manifold. The Huthis have proclaimed they are willing to sink commercial ships to deter an attack. In April, Saudi Arabia accused the Huthis of firing on a Saudi-flagged oil tanker in the Red Sea, the first attack of its kind.

Recommendations for the EU and its Member States

To avoid this scenario and the regional escalation it could trigger, the EU should take a clear public position against a coalition attack on Hodeida for both humanitarian and political reasons, and engage in vigorous diplomacy, in Riyadh, Abu Dhabi and Washington, to help prevent it. Diplomatic efforts also should be directed toward encouraging both sides to de-escalate the conflict ahead of a possible resumption of talks. This could include the Huthis halting missile strikes at Saudi Arabia and ships in the Red Sea in return for the Saudi-led coalition stopping their offensive moves into Saada and along the Red Sea coast in Hodeida and Taiz provinces. The new UN envoy, with the help of the EU delegation and member states, could broker such an agreement.

As a non-belligerent in the Yemen war, the EU has access to all sides, including the Huthis.

If military escalation can be held at bay, the envoy will have a chance to revive negotiations over a cessation of hostilities and a return to an internal Yemeni political process. To be successful, these efforts will need a new framework that improves the one set forth in UN Security Council Resolution 2216. That resolution sets out a bilateral structure for talks between the Hadi government and the Huthi-Saleh bloc, which has become outdated and which never represented the range of Yemeni forces with influence on the ground. It also places unrealistic preconditions for a political settlement on the Huthis, including requiring them to withdraw from territories gained and hand over weapons. The EU, and in particular Security Council members France, the Netherlands, Sweden and the United Kingdom – the latter being the penholder on the Yemen crisis – should press for a new resolution that would support the UN envoy’s efforts based on his plan for reviving the political process, which he will present in June 2018.

The EU delegation is uniquely placed to assist the UN envoy in improving the structure and substance of potential negotiations. As a non-belligerent in the Yemen war, the EU has access to all sides, including the Huthis. The delegation could assist in communicating with and encouraging Huthi cooperation at the various stages of talks. Information and lessons from EU-sponsored Track II events during the course of the war, particularly with local security stakeholders, could help guide the process of improving intra-Yemeni negotiations. The EU and its member states should work with the UN envoy to produce a negotiating framework that more effectively includes women and other civil society representatives in decision-making roles early in the process, a deficiency during the last three rounds of UN-sponsored talks.

The EU and member states should continue to demand unhindered humanitarian and commercial access to all seaports, including Hodeida, as well as Sanaa airport.

South Yemen, where separatist sentiment is strong and the UAE is supporting separatist-leaning groups, is a critical flashpoint. In effect, the south is moving toward independence, but not all southern stakeholders support the idea. Nor do Yemenis in the north. The EU and its member states should have a clear, public policy line that opposes a unilateral move toward independence but recognises southern Yemenis’ grievances and the need to revisit the question of state structure and decentralisation, which remained unresolved in Yemen’s 2014 National Dialogue Conference. The EU delegation and member state representatives should also prioritise engaging with the UAE-supported Southern Transition Council and other southern political groups, and support their inclusion in intra-Yemeni negotiations.

Finally, ameliorating the war’s humanitarian impact should remain a top priority. The numbers are staggering. Over 22 million Yemenis – three quarters of the population – need humanitarian assistance. Of those, 8.4 million are at risk of starvation. Three million are internally displaced, mostly women and children.

The EU and member states should continue to demand unhindered humanitarian and commercial access to all seaports, including Hodeida, as well as Sanaa airport. To assist in their full opening, the EU is well placed to offer assistance to the UN in negotiating and possibly implementing security checks that address the Saudi-led coalition’s legitimate concerns regarding arms smuggling. They should also press the Huthis to allow unhindered humanitarian access to areas they control and to ease restrictions on aid workers operating in these areas. Beyond physical access, the EU should work with the Yemeni Central Bank to stabilise the value of the Yemeni riyal and promote a political compromise by which the Hadi government pays salaries to all civil servants nationwide, including in Huthi-controlled territories.