At the conclusion of the 36th meeting of the United Nations (UN) Human Rights Council (HRC) in September 2017, the Council empowered a Group of Eminent international and regional Experts (GEE) to report on the human rights situation in Yemen. Resolution 36/31 – the resolution establishing the GEE – requests the “High Commissioner to establish a group of eminent international and regional experts with knowledge on human rights law and the context of Yemen for a period of at least one year, renewable as authorized” to look into allegations of human rights abuses. While the resolution does not grant the GEE itself power to investigate abuses, the GEE’s ability to travel around Yemen and monitor and report on abuses by all parties to hostilities represents an important step in establishing accountability for acts that may constitute war crimes.
In his announcement of the appointment of the Experts in December 2017, the former High Commissioner Zeid Ra’ad al-Hussein noted that the people of Yemen have been subjected to “death, destruction and despair,” and stated, “It is essential that those who have inflicted such violations and abuses are held to account.” While the GEE cannot refer violators to a court for prosecution, its mandate to investigate abuses represents significant progress towards achieving justice for victims and potentially ending the humanitarian crisis in Yemen. The High Commissioner appointed three experts to the GEE: the chairman Kamel Jendoubi of Tunisia, Charles Garraway of the United Kingdom, and Melissa Parke of Australia. Since their appointment last year, they have visited Yemen to see the situation firsthand and monitored alleged human rights violations. This past August they released a 41 page report, which included 25 pages of annexes naming important actors from the coalition, the Government of Yemen, and the Houthis. In a signal of the GEE’s concern over atrocities committed by the parties to the conflict, the report uses the term “war crimes” eight times in the first 16 pages and two more times in the annexes. For example, the Experts allege the coalition’s airstrikes may rise to the level of war crimes, because the coalition fails to abide by the list of no-strike areas, attacks civilian areas, and utilizes double tap tactics to deliberately kill first hand responders and civilians helping those already hit by bombs. The Experts do not level accusations of war crimes lightly, and their repeated concerns are substantial because other international appointed commissions of inquiry have been more reluctant to say that atrocities may rise to the level of war crimes.
In their report, the Experts found that all parties to the conflict are responsible for human rights abuses, including the Government of Yemen, the Saudi Arabia- and United Arab Emirates (UAE)-led coalition, and the Houthis and UAE-backed militias. Among the abuses the report highlights are the extraordinary rates of civilian deaths by air strikes, the lack of accountability for violations, and the humanitarian crisis. The report states that, “Since March 2017, the Office for the Coordination of Humanitarian Affairs has designated Yemen as the world’s largest humanitarian crisis. In April 2018, out of a population of 29.3 million, 22.2 million persons were in need of humanitarian assistance, including 11.3 million in acute need.”
In laying out their legal framework, the Experts note that the parties to the conflict – in particular the Government of Yemen – have not abrogated their treaty obligations, stating “Yemen is a State party to 9 of the 13 core international human rights treaties, which remain applicable in periods of armed conflict. The Government retains positive obligations in areas where it has lost effective control.” This does not absolve other states. Indeed, the other parties to the conflict must also abide by international human rights treaties, with the Experts noting that “Yemen is in a state of non-international armed conflict. In this context, international humanitarian law obligations arise under both treaty and customary law. All parties to the conflict, their armed forces and persons or groups acting on their instructions or under their direction or control are bound by customary international law.” This includes the Universal Declaration of Human Rights (UDHR). Thus, although Saudi Arabia abstained from voting on the UDHR in 1948, when it said the declaration did not coincide with Sharia Law, it must abide by the UDHR, as the UN considers it the standard for every country, regardless if they signed it or not. Despite this, the parties to the conflict have taken actions that contravene their treaty obligations and violate international humanitarian law.
The Experts begin the report by addressing coalition airstrikes and the increasing number of civilian deaths caused by the bombings. According to the Experts, coalition airstrikes are the leading source of Yemeni deaths, which the report links to the coalition’s targeting practices, stating that many bombing sights are not in the vicinity of a military objective. The Experts say that if these are not accidental airstrikes on civilians, these would amount to war crimes. Indeed, “Despite the special protection afforded to medical facilities and educational, cultural and religious sites under international humanitarian law, many such facilities and sites have been damaged or destroyed by coalition air strikes throughout the conflict.” The coalition continues to claim that these strikes are accidental, but it is hard to believe that they miss military targets with laser guided bombs and that one-third of their airstrikes hit non-military areas. Despite this, the coalition’s investigatory body, the Joint Incidents Assessment Team did not cooperate with the Experts about its efforts to investigate these errant strikes.
The Experts’ report not only addresses the Saudi-UAE-led coalition airstrikes but also calls attention to the coalition’s devastating blockade of the country and its effects on civilians. Since 2015, the coalition has restricted air space and naval activities, creating an embargo on Yemen. After the Houthis launched missiles into Saudi Arabia, the coalition blockaded the Saudi-Yemeni border, further limiting aid deliveries to Yemen. As a result, “as of April 2018, nearly 17.8 million people were food insecure and 8.4 million were on the brink of famine.” Despite this, the experts stated that the coalition has refused to lift their restrictions on Yemen, although they are required to do so by law since so many are suffering due to the lack of aid. If the restrictions remain, the Experts noted, continued limited access to basic necessities like food and fuel will have catastrophic repercussions for the Yemeni people.
The report also criticizes the Houthi forces for their failure to meet international human right standards. The GEE provides evidence that Houthi forces have killed civilians with shelling and snipers, noting that civilians have been caught in the crossfire. The Experts expressed particular concern about the situation in Taizz, where the Houthis control the highlands surrounding the city and where they shell neighborhoods. The Houthi’s failure to account for civilian deaths represents violations of international humanitarian law. While the Experts have strongly condemned the coalition for its blockade of Yemen and for restricting much-needed supplies, they also condemned such restrictions imposed by the Houthis. They highlighted Houthi-imposed impediments of humanitarian and other goods being delivered to Taizz’s population. The Experts also expressed concern about the Houthi’s recruitment of child soldiers. Where the GEE found the Government of Yemen, the coalition, and the Houthis all have recruited and used boys as soldiers, the majority of cases are from the Houthis – who are responsible for over two-thirds of the cases – but with a recent increase with Yemen Government forces. More broadly, the Experts criticized the Houthis for their failure to cooperate with their investigation.
In the report, the Experts express serious concern about arbitrary detentions, enforced disappearances, torture and ill‑treatment by all parties to the conflict. In examining such allegations of abuses, the Experts investigate cases in prison facilities controlled by the UAE, the UAE-supported Security Belt militia Forces, the Houthis, and the Government of Yemen. The report notes that “The criminal justice system had become largely defunct in the areas where pro-government forces reclaimed control. Coalition-backed forces were empowered to fill the void, resulting in widespread arbitrary detention.” Indeed, many of the cases of arbitrary detention, enforced disappearance, and torture, including sexual violence, take place in prisons overseen by the Yemeni government, UAE-backed militias, or coalition forces. In one notable instance the Experts criticized UAE personnel for sexually abusing prisoners at the Bureiqa coalition facility as well as at the Bir Ahmed Prison, condemning these acts as potential war crimes. Other acts of sexual violence were carried out by the Security Belt Forces, who are directed by the UAE. These forces not only abused and tortured detainees, but they reportedly abducted and raped women to extort their families for money.
In response to concerns about human rights violation in Yemen, in particular airstrikes, the coalition established the Joint Incidents Assessment Team (JIAT), which has been empowered to assess and examine allegations of violations. Despite this, the GEE criticized the JIAT’s lack of independence and failure to effectively hold the coalition accountable for its violations. The Group noted, “The Experts accepted that the publicly available information may only constitute summaries of JIAT findings. They, nonetheless, expressed serious concerns as the summaries lacked details of legal analyses undertaken, and rarely addressed reports of civilian casualties.” However, “the Experts received reliable information suggesting that at times, JIAT findings were substantially altered by the Saudi Ministry of Foreign Affairs.” Furthermore, the Experts sought more information from the JIAT about its structure and rules of procedure, but received no response. No less problematic is the composition of the JIAT, whose members include Bahraini judge Mansour al-Mansour, who has a reputation for imprisoning human rights activists. Despite all of this, many of the coalition’s allies trust the JIAT and cite it as a reason for the allies to continue to support the coalition. But the GEE says the JIAT is not a valid assessment team and says the coalition “does not have a mechanism consistent with the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.”
The warring parties in the Yemen conflict must claim responsibility to their actions. The coalition has an obligation to cease bombing civilians and to allow aid to flow through their blockades. The disaster in Yemen has been propelled to its current level due to the interference of the coalition. The Government of Yemen also adds to the crisis and has a duty to its people and the treaties it has signed. The Houthis must also be held accountable for their human rights violations too, such as its recruitment of child soldiers and blocking of aid. Indeed, there can be no long-term and sustainable peace unless all warring parties jointly accept responsibility.
In their report, the Experts state that all actors to the conflict may be guilty of committing war crimes. As a member of the UN HRC, Saudi Arabia, and as a state seeking a seat on the HRC, Yemen, should be prosecuted for such atrocities. The report states, “A review of national and international accountability mechanisms is an imperative step towards defining a viable and sustainable criminal accountability framework in line with national obligations and international standards.” The GEE are only capable of monitoring and reporting these abuses and cannot actually prosecute those accused of potential war crimes. At HRC 39, a resolution extending the GEE mandate for another year until HRC 42, was passed with 18 “yes” votes. Saudi Arabia and UAE both voted against this resolution. Extending the mandate is progress for achieving peace in Yemen, and the “sustainable criminal accountability” the GEE report calls for, but there needs to be more assertive measures taken. The international community must ensure that the GEE receives more authority to hold the coalition and the Houthis accountable for the crimes they have committed.