In October 2023, the Yemen-based and Iran-backed Houthi movement started a series of attacks (continuing well into 2024) against several vessels navigating the Red Sea, with the declared intention to support the population of Gaza in the rekindled Israeli-Palestinian conflict. On 10 January 2024, the United Nations Security Council adopted Resolution 2722, taking note of “the right of Member States, in accordance with international law, to defend their vessels from attacks, including those that undermine navigational rights and freedoms”. This ambiguously-worded text does not provide for an autonomous legal basis for reaction and leaves open the question of the legality of the forcible measures subsequently taken by (mostly Western) States.
At any rate, the resolution has been invoked by the countries that launched the Prosperity Guardian and Aspides missions[1] (which adopt differing approaches to self-defence), and it is explicitly mentioned in the decision by the Council of the European Union instituting the latter.[2] These military operations raise important legal questions, concerning the interrelated issues of the status of the targets, the justification for the reaction, and the limits on the measures carried out against the targets. Such questions are addressed below in relation with the position of Italy.
Starting with the legal status of the Houthis, one should note that they have been variously characterized as terrorists, pirates, and participants in an armed conflict.[3] For instance, references to terrorists or terrorist attacks have been made on 5 March 2024 by the Minister of Foreign Affairs and International Cooperation, Mr. Antonio Tajani, before the Chamber of Deputies (256th Meeting, XIX Legislature) and the Senate of the Republic (166th Meeting, XIX Legislature), and they are present in Resolutions Nos. 6-00092 and 6-00075 adopted on the same day by the Chamber and the Senate, respectively. A couple of days before, the Minister of Défense, Mr. Guido Crosetto, also labelled as terrorism the attacks by the Houthis on the Italian ship Duilio, which Italy contributed to the Aspides mission.[4] He spoke of terrorist activity also on 19 December 2023, following a meeting with the United States (US) Secretary of State on the situation in the Red Sea area.[5]
On 6 December 2023, before the Chamber (210th Meeting, XIX Legislature), Minister Crosetto defined the Houthis’ actions differently, as piracy. Also, the Houthis are described as pirates in Resolutions Nos. 6-00093 and 6-00079, approved by the Chamber and the Senate, respectively, at the abovementioned meetings of 5 March 2024. This characterization can be opined from a scholarly point of view,[6] and Italian representatives have already demonstrated to use the category of piracy improperly.[7] However, other governments have maintained that (some of) the Houthis’ acts amount to piracy.[8]
As for the Houthis’ participation in an armed conflict as combatants, they have been repeatedly defined as rebels in a civil war, for instance by Minister Tajani at the aforesaid meeting of the Senate of 5 March, as well as in Resolutions Nos. 6-00091 and 6-00080 approved on the same day by the Chamber and the Senate, respectively. At any rate, and despite the recognition by the commander of Duilio that the area where the Aspides operation takes place “is a conflict zone”,[9] it seems that Italy does not consider itself as a party to an armed conflict, and that the references to the ongoing “hybrid conflict” – in the statements before the Senate by Minister Tajani on 5 March and by Minister Crosetto on 8 February (156th Meeting, XIX Legislature) – must be understood lato sensu.[10] In any event, it should be recalled that in 2023 Italy lifted restrictions on the sale of weapons to the United Arab Emirates and Saudi Arabia,[11] two countries of the coalition that has been fighting against the Houthis in Yemen in a war that, as of early 2024, has not formally ended yet. It cannot be excluded that vessels flying the flag of a State that is not a party to the conflict and shipping armaments to the Houthis’ enemies may be lawfully targeted by the insurgents.[12]
Diverse are also the justifications for Italy’s action in the Red Sea. As it can be understood, the legal characterization of the Houthis (as pirates, terrorists and participants in a conflict) may provide legitimacy to action: thus, operation Aspides is meant “to carry out the fundamental task of protecting sea lanes and countering all forms of terrorism and hybrid war”.[13] In general, a broad notion of security[14] – which is both military and economic – has been invoked by the Italian Government as the rationale for the deployment of its navy in the Red Sea. Speaking before the Senate on 18 January 2024 (147th Meeting, XIX Legislature), Minister Tajani stated:
The actions of the Houthi rebels in the Gulf of Aden are seriously jeopardizing the freedom of navigation along one of the world’s most important trade routes. […] Ensuring the orderly flow of commerce and, at the same time, security in the region is an absolute priority for the Government. […] We aim to restore security of navigation in the area, prevent a dangerous escalation of the conflict in the Middle East, and safeguard the progress made in recent months toward peace in Yemen between the recognized Government and the Houthi rebels. […] The [Italian] Government is working to protect our economic interests and prevent disruption to the supply chain […].
Economic reasons, including the need to prevent the level playing field between Western countries and their competitors from being undermined,[15] feature prominently also in the speech delivered on 5 March before the Senate by Minister Tajani, who also referred to the protection of underwater telecommunication cables such as those allegedly cut by the Houthis:
The commercial traffic of Russia and China, as per the explicit declaration of the Houthis, can freely transit through the Suez Canal. […] Our position on the attacks by the Houthis has been clear from the outset: they represent an assault on the security and freedom of navigation, an obstacle to the free development of commercial flows, and an impediment to the regular functioning of maritime routes. […] [The attacks on the cables] prove the need to act also to safeguard the integrity of these critical infrastructures.
He went on by adding that, in so doing, Italy is “protecting a global public good”. Thus, despite the ubiquitous references to the Italian and European interests and security made by the Government and Parliament when discussing this matter,[16] the abovementioned Resolutions Nos. 6-00092 and 6-00075 declared what follows:
freedom of navigation is a fundamental principle of international law, regardless of specific national interests, and must be safeguarded wherever it is endangered, especially in maritime passages such as straits, where it can be more easily threatened;
aggressive acts against commercial traffic must be countered, whether conducted by institutional actors or, even more so, by armed organizations controlling vast territorial areas but whose government is not recognized by the international community, as is the case with the Houthis, a terrorist group allied with Hamas […] responsible for the civil war and the breakdown of State unity in Yemen […] [emphasis added].
It may be inferred from the dismissal of “specific national interests” that any country – including those States whose ships have not been attacked and do not even navigate the maritime area at risk, and also non-seafaring countries – would be entitled to take action to enforce navigational rights. Also, such action can be taken vis-à-vis non-State actors: if this entailed countering their attacks on the territory they control – as Prosperity Guardian did in Yemen – Italy’s stance would possibly amount to support for the “unwilling or unable” doctrine (depending on how the lack of reference to the consent of the territorial sovereign is interpreted).
This raises the crucial question of the limits on the reaction to the Houthis’ attacks, an issue on which the stance taken by Italy is not fully clear. In his speech of 18 January, Minister Tajani informed the Senate that the Government was planning to deploy Aspides, “a mission not of attack but of defence. European military ships would intervene to protect the merchant vessels they escort. The operation aims to create a deterrent mechanism to defend maritime traffic throughout the area up to Suez”. A few weeks later, on 8 February – the day when the decision by the Council of the European Union establishing Aspides was adopted – Minister Crosetto addressed the Senate by saying the following:
Italy has immediately deemed it necessary to act to restore security and freedom of navigation in the area by sending a naval unit […] with tasks of maritime situational awareness and extended self-defence in favour of vessels transiting the Red Sea. At the same time, in synergy with the Ministry of Foreign Affairs, we have encouraged and supported the rapid launch of a European Union initiative, later named Aspides. […] European military ships will perform tasks of protection and escort of vessels and of maritime situational awareness, in close coordination […] with Prosperity Guardian, a defensive mission that […] is based on a multinational coalition within Combined Task Force 153. […] As long as the current crisis persists, Italy will permanently maintain at least one national naval unit in the Red Sea and will directly or indirectly support operations mandated to protect security and international law. […] This is what we are doing and what we have asked the European Union to do with a mission of defence and not offense.
The expression “extended self-defence” has no definite meaning and, albeit not referred here to Aspides,[17] it was later used for this operation, too. This may raise doubts about the rules of engagement of Aspides, especially because Prosperity Guardian (which the former is meant to work “in close coordination” with) was also defined by the Minister as a defensive operation. Therefore, it is not surprising that members of Parliament tried to secure assurances by the Government as to the defensive nature of Italy’s intervention. On 29 February 2024, before the Committees on Foreign and European Community Affairs (III) and on Defence (IV) of the Chamber of Deputies (260th Meeting),[18] the Undersecretary of State for Defence, Mr. Matteo Perego di Cremnago, affirmed that “Italy does not intend to be involved in offensive actions against Houthi positions in Yemen” and specified “that the rules of engagement involve accompanying merchant ships and protecting them from potential multi-domain attacks at sea through the use of defence systems”, which are “aimed at neutralizing identified threats” in order “to protect naval assets transiting through the area”. He also underlined that – at that time – Italy’s involvement in Task Force 153 was limited and, asked about the possibility that intelligence information collected by Aspides could be transmitted to allies conducting offensive actions in Yemeni territory, he reiterated that “the posture of the operation is defensive, in accordance with international standards in case of attack; furthermore, intelligence information will be collected solely for the purpose of neutralizing in advance any impending threats”. It is not clear, however, whether such neutralization would amount to pre-emptive self-defence, nor, in case it did, whether it would be materially carried out by Aspides naval assets.
In his speech of 5 March before the Senate, Minister Tajani addressed the issue, without fully clarifying the Government’s position, though. After specifying that the Aspides mission was deployed because the Emasoh/Agenor operation “did not have rules of engagement that allowed for active defence but only served to accompany merchant ships”,[19] he stated:
The tasks will be of a defensive nature. The mission cannot, therefore, undertake preventive actions. I want to be clear about this word: preventive in a military sense, because the Government gave a favourable opinion at the Chamber, as we will do here as well, to a resolution that includes the hypothesis of possibly evaluating preventive actions. Should preventive military actions be necessary, in our decision, if they are preventive actions such as, as I understand them, the removal and separation of ships, therefore not preventive war operations, we consider this possible. […] But the mission will also have executive tasks of extended self-defence, i.e., neutralizing attacks directly targeting escorted merchant ships and countering any attempts to seize vessels. I refer, for example, to the suppression of incoming missiles or drones, as demonstrated by the case of the Caio Duilio […]. In any case, responses must be necessary and proportionate, and always in the maritime or air space. In no case can Aspides be involved in operations on land. […] Responses will be conducted in full respect of international law, customary law, and the right to self-defence in the event of an imminent or ongoing attack on Italy’s or third-party ships, as provided for in Article 51 of the UN Charter. Aspides will also operate in full compliance with the United Nations Convention on the Law of the Sea.[20]
On the same day, intervening before the Chamber, he further elaborated on this issue, by addressing concerns on the “eminently” defensive nature of the operation (as it had been described by the Council of the Ministers[21]):
I want to reiterate that the Aspides mission will have tasks solely of a defensive nature. The mission cannot, therefore, undertake preventive actions. So, even the word that was mentioned [i.e., “eminently”] must be interpreted in a reinforcing sense, not in the sense of “mainly”, […] because, as with all European missions, it would not be possible to have an offensive action. “Defensive” does not mean simple accompaniment; it means the possibility of reacting militarily, as it was the case of the destroyer Caio Duilio. This is the modus operandi, these are the rules of engagement. Therefore, the executive tasks are of extended self-defence, i.e., neutralizing attacks directly targeting escorted merchant ships, and countering any attempts to seize vessels.
At the meetings of 5 March of both the Chamber and the Senate, several resolutions were approved authorizing the Government to contribute Italian navy assets to Aspides. However, such resolutions do not seem to be perfectly aligned. Resolutions Nos. 6-00095 and 6-00078, approved by the Chamber and the Senate, respectively, after recalling that Italy’s international missions must be compatible with the values and principles of the Constitution,[22] committed the Government to “guaranteeing the defensive nature” of operation Aspides. The preamble of Resolutions Nos. 6-00091 and 6-00080 is more explicit in premising that “Aspides is designed as a defensive mission that allows the use of weapons solely for the protection of merchant traffic and to intercept any drones, missiles, and explosive boats directed against ships”, thus suggesting that the mission’s rules of engagement only allow for interceptive self-defence. More detailed on this issue, and more open to active forms of self-defence, are Resolutions Nos. 6-00092 and 6-00075, which read:
[…] from a technical-military perspective, the protection of vessels in transit and the self-protection of military units deployed in the operational area can be carried out passively by neutralizing incoming attacks, or actively by eliminating the sources of fire and the means and military infrastructure of the aggressor;
the decision of the Council of the European Union currently only considers the passive option, unlike what has been done in similar operations by the United Kingdom and the United States, but it is advisable that the latter option also be taken into consideration if the situation evolves to necessitate it;
the circumstances in which this possibility might become necessary also depend on the availability of defence means (such as surface-to-air missiles and artillery against anti-ship missiles), which could be critical depending on the quantity of offensive means available to the aggressor; […]
[The Senate commits the Government to:]
operating within the responsibilities of the tactical command of operation Aspides to:
1.1) do all that is possible to ensure the freedom and security of navigation in the Red Sea and, in general, along the route from the Indian Ocean to the Mediterranean Sea; […]
1.3) consider, where necessary, the implementation of control measures to detect ships replenishing the offensive equipment stocks of the Houthi group, including[23] through inspections, in any case in compliance with international law;
1.4) assess and adjust the military posture of the operation based on events, on the effectiveness of defensive operations, and on the possible efficiency of preventive operations in light of the gravity of the situation; […].
Apparently, the Italian Government and Parliament did not rule out the possibility, if need be, of expanding the rules of engagement of operation Aspides so as to include pre-emptive self-defence, just like Prosperity Guardian.
In the end, the stance of the Government has been somewhat ambiguous. It reassured Parliament that Aspides would be of defensive character only, with the prohibition of anticipatory action of military nature in Yemen’s territory. However, in addressing the issue of permission for non-military anticipatory action (i.e., forcible measures “short of war”), it referred to a resolution clearly allowing for military pre-emption on Yemeni soil. At the same time, it also expressed support for another resolution premised on an understanding of self-defence as interceptive only. Likewise, the Government decided not to take part in Prosperity Guardian[24] – probably due to the mission’s controversial rules of engagement – but manifested its political endorsement for it more than once,[25] and ultimately, in early April 2024, Italy took command of Combined Task Force 153, under which the US-led mission was established and run.[26]
Paolo Turrini
A quotable version of this post was published in the Italian Yearbook of International Law: Turrini, “The Response to the Houthis’ Attacks in the Red Sea: Bathing in Ambiguity”, IYIL XXXIII (2023), 2024, pp. 525-532; available here.
[1] See, e.g., a joint statement issued the day after the adoption of Resolution 2722, in parallel with attacks on Houthi targets in Yemen. Italy is not a signatory, even though it had endorsed a previous statement, dating back to 3 January, where repercussions had only been vaguely threatened (military actions on Yemeni soil had not been taken yet). However, Italy, together with its G7 partners, later released another statement also mentioning Resolution 2722 and welcoming both the Prosperity Guardian and Aspides operations.
[2] Council Decision (CFSP) 2024/583, 8 February 2024, recital 5 of the preamble.
[3] On these portrayals and their legal consequences, see Papastavridis, “Red Sea Attacks and the International Response: An International Law Insight”, ELIAMEP, 30 January 2024.
[4] “Mar Rosso, il comandante di Nave Duilio dopo l’attacco Houthi: ‘È una zona di conflitto, siamo pronti anche se è faticoso’”, Open, 3 March 2024.
[5] The press release is available here.
[6] Among those contesting this label, see Kraska, “Attacks on U.S. Warships Justify Self-Defence Against Houthi Forces Ashore”, Lawfare, 2 January 2024, and Zamuner, “La tutela della libertà di navigazione nel Mar Rosso e la legittima difesa nel diritto internazionale”, SIDIBlog, 14 March 2024. Contra, Papastavridis, cit. supra note 3.
[7] Turrini, “Of Castaways and Pirates: Migrants’ Rights from Departure to Arrival”, IYIL, Vol. XXXII, 2022, p. 498 ff., pp. 509-510.
[8] See, e.g., the US President’s statement available here.
[9] See supra note 4.
[10] It is worth noting that on 5 March the Senate rejected Resolution No. 6-00076, which stated that even if Aspides’ tasks “are defined as eminently defensive, the war context in which the operation will take place entails the risk that such tasks will not be exclusively defensive”.
[11] See the Government’s press releases: here and here. On previous Italian practice concerning these countries see Lerer, “The Position of Italy on the Cases of Arms Exports to Turkey, Saudi Arabia and the United Arab Emirates”, IYIL, Vol. XXIX, 2019, p. 495 ff., available here; Id., “Arms Export to Some Near- and Middle-Eastern Countries”, IYIL, Vol. XXX, 2020, p. 534 ff. See also infra the contribution by Pertile.
[12] Papastavridis, cit. supra note 3.
[13] As said by Minister Crosetto through a press release.
[14] See also infra note 22.
[15] A concern also expressed by Minister Crosetto on 8 February, in his abovementioned speech before the Senate.
[16] See e.g., Resolutions Nos. 6-00091 and 6-00080.
[17] The expression is referred to the enforcement measures taken by Italy in December 2023 in the lead-up to the establishment of Aspides, which were apparently framed as part of operation Atalanta, with anti-piracy tasks (“Italian navy to send frigate to boost Red Sea security”, Reuters, 19 December 2023). The latter mission, according to Italy, could no longer provide the framework for a self-Defence operation due to the opposition of Spain. If this is true, it might provide additional evidence of how Italy deemed Houthis’ actions as piracy.
[18] There are no verbatim minutes of the meeting; only a summary is available.
[19] Emphasis added. The mission is meant to provide “solely for accompanying activities and not direct protection” (as stated in the document available here).
[20] The concepts expressed in the last sentences basically replicate recital 8 of the preamble and Art. 1(5)(c) of Council Decision (CFSP) 2024/583, cit. supra note 2.
[21] See supra note 19.
[22] The reference is certainly to Art. 11, whereby Italy repudiates war as a means to settle international disputes. Of interest is the fact that Mr. Perego di Cremnago, in his statement mentioned above, affirmed that Aspides’ objective is the protection of national interests and – notably – the Defence of the homeland as per Art. 52 of the Constitution.
[23] The word “including” was added upon explicit request from the Government.
[24] The US Government initially listed Italy as a participant..
[25] For instance, Minister Tajani in his speeches of 18 January and 5 March. See also supra note 1.
[26] On the handover, see here.
Italy's Diplomatic and Parliamentary Practice on International Law 