By Prescott Heighton
Freedom of the seas and their safe navigation has been a fundamental principle of American international relations since the nation’s inception. It ensures the ability of American merchants to access markets overseas, thus helping secure our economy, and ultimately provide security and stability for the nation. The Quasi-War and the Barbary Wars were both fought to protect American shipping. One of the reasons the War of 1812 began was because of the impressment of American sailors by the British Navy. Moreover, the United States did not become involved in the First World War until after incidents at sea involving the sinking of American ships and those carrying American goods. Freedom of navigation is something that the United States has always taken seriously and continues to today, whether it is in the South China Sea or the Bab al’Mandeb.
More than 3 million barrels of oil transit the Bab al’Mandeb daily, as do millions of tons of cargo: making it one of the world’s busiest and most important shipping lanes. Bordering the straits to the north and east is Yemen: a country that has been torn apart by civil war and one that hosts a group of rebels who seem more than willing to fire off anti-ship cruise missiles (ASCMs) into a waterway with a high density of merchant ships. ASCMs like the C-801 Sardine and the C-802 Saccade used by the Houthi rebels (and likely supplied by Iran) are old technology without the most advanced targeting systems. Put simply; they are big dumb missiles that will go after whatever the closest and largest target happens to be: in the Bab al’Mandeb that is most often going to mean either a container ship or an oil tanker. Indiscriminate attacks on merchant traffic using ASCMs was exactly the tactic that Iran employed during the 1987-88 Tanker War in the Straits of Hormuz, and while it did not significantly affect the global economy or the prices of oil at the time, it certainly had the possibility that it could have wreaked havoc. The major consequence was that it led to significantly greater U.S. involvement in the region.
There was a time when navies and naval infantry forces conducted punitive raids to resolve situations like this; today, they launch cruise missile strikes instead, but the intent and purpose remain the same. These strikes are often limited in nature (in this case destroying three radar sites located along the Red Sea in Yemen) and designed to provide collective self-defense by removing offensive capabilities of a nation threatening peace in the region. Yet, whenever the question of punitive strikes comes up, so too does their legality under international law. On April 18, 1988, in retaliation to Iran mining of waters of the Persian Gulf that resulted in the near-sinking of the USS Samuel B. Roberts, the United States Navy destroyed two Iranian oil platforms and in the resulting naval engagement with the Iranian navy, six Iranian boats were either crippled or sunk. The United States provided justification for these actions by invoking the right to collective self-defense under Article 51 of the UN Charter. However, because the oil platforms threat to United States ships and there being no conclusive proof that the mine that damaged the Samuel B. Roberts was Iranian, and the United States stating that it did not act in the interest of collective self-defense, the International Court of Justice held in 2003 that the actions were not justified under Article 51. In a different incident, a decade later in 1998, the United States carried out strikes in Iraq. These strikes were after Iraq had ceased cooperation with United Nations weapons inspectors and were against Iraqi military facilities capable of developing and delivering weapons of mass destruction against other countries in the region. This selective targeting of facilities of this type in a country that had previously made use of such weapons against its neighbors as well as its own civilians would qualify as collective self-defense⸺albeit their anticipatory nature⸺under Article 51.
Today, punitive strikes continue to take place somewhat regularly. We often hear about them in the form of drone strikes, but used properly, these too fall under pre-existing laws and can be used to carry out punitive strikes, as permitted under Article 51. Often such strikes are necessary to preempt attacks by rogue nations and terrorist groups on their neighbors and innocent third parties. In fact, would go one step further by saying that, navies⸺and militaries, in general⸺have a moral obligation to conduct limited and targeted strikes as part of keeping the sea lanes open, free, and navigable. Sometimes, the use of such strikes can be abused, but simply letting the Houthis continue to endanger an international waterway and potentially drag the American military into the Yemeni Civil War would likely escalate a regional conflict and therefore, would be a grave mistake and set a dangerous precedent going forward.