On November 19, 2023, a helicopter operated by the Houthi-controlled Yemeni navy hovered over the vehicle carrier Galaxy Leader, passing through the Red Sea. Masked and armed men rappelled down to the deck, raised Yemeni and Palestinian flags, and directed the ship to the nearby port of Al Hudaydah. Galaxy Leader has remained there ever since.
Following that, a number of ships suffered direct hits from missiles or drones, though no crew members were injured. Some shipping companies began to reroute, avoiding the Red Sea, although the journey around the Cape of Good Hope is at least 10 days longer. Recently, one ship hit by a missile sank in the Red Sea.
The raids are being carried out by Houthi militants, officially known as Ansar Allah (Supporters of God), a Shia Islamist political and military organisation that emerged in the 1990s. They now control large parts of Yemen, particularly along the Red Sea coast, and are effectively the country’s de facto governing power.
The question now is whether the Houthis are pirates. Are their nautical assaults and land-based missile attacks acts of piracy, which would normally justify international intervention? (In the past, naval task forces have operated to combat Somali pirates in the Red Sea and Gulf of Aden.)
Piracy is recognised under customary international law as the oldest crime to which universal jurisdiction applies. That means criminal jurisdiction applies based solely on the nature of the crime, without regard to where it was committed. In New Zealand, piracy is a crime under the Crimes Act 1961.
Piracy is also codified in two conventions dealing with the law of the sea and navigation. One definition of piracy is that it is limited to the high seas and must be committed for private ends. Politically motivated acts of terrorism committed against ships and their crew members on the high seas may not be included.
The Houthis may not be pirates in the legal sense, in that they are not engaged in “private” actions in intercepting shipping but as a de facto state. Arguably, as the de facto authority for much of Yemen, the Houthis occupy the notional position of state actors rather than private ones.
Nevertheless, the international community sees the need for aggressive action to combat them.
Last December, Operation Prosperity Guardian was formed to counter threats by Houthi forces against international maritime commerce. The coalition has 20 members. New Zealand is one of them and is involved because it supports the principle of freedom of the seas and the maintenance of international trade routes.
In January, the United Nations Security Council adopted a resolution that condemned the Houthi actions, demanded cessation of attacks and the release of the Galaxy Leader, and implicitly supported the steps taken by Operation Prosperity Guardian to thwart the militants.
Despite this resolution, former prime minister Helen Clark and others consider New Zealand’s involvement to be unwise. She is of the view that the broader issue of the Gaza conflict – a motivator for the Houthi actions – should prevail. The Israeli-Gaza conflict is referred to indirectly by the Security Council, but the immediate problems posed by the Houthi activities are in sharper focus, involving open trade routes. These issues seem to have been overlooked by Clark.
In my view, the involvement of New Zealand – dependent as it is on international trade and the freedom of trade routes, especially by sea – is fully justified and is in accordance with the spirit and intention of the Law of the Sea conventions and the Security Council resolution.
David Harvey is a retired district court judge.
