This week, governments will vote at the United Nations on whether to create an international commission of inquiry on Yemen. In recent weeks, 67 international, regional, and Yemeni NGOs urged the UN Human Rights Council to establish an independent inquiry into serious allegations of human rights and humanitarian law violations—a call that Canada, the Netherlands, and China have echoed. It is critical that the United States and other states support the creation of this commission so that Yemenis can have a credible mechanism to advance their rights to truth and accountability. The UN commission would also aid states in fulfilling their legal obligations to ensure proper investigations, facilitate comprehensive investigations of abuses by all sides, support peace efforts, complement existing bilateral efforts to improve international law compliance, and ensure that the UN Human Rights Council fulfills its mandate to respond to human rights emergencies.
Many others have rightly called for an independent, international inquiry on Yemen: 14 members of U.S. Congress led by Rep. Ted Lieu (D-Calif.), the UN High Commissioner for Human Rights, the UN Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, the Special Advisers to the UN Secretary General on the Prevention of Genocide and on the Responsibility to Protect, and an independent panel of UN Security Council-mandated experts. At times, even members of the Saudi-led coalition at war in Yemen have themselves recognized the need for an independent inquiry. The United Arab Emirates, for example, reportedly said that it would “welcome any independent international investigation into” the bombing of a boat carrying Somali refugees off the coast of Yemen in March.
Some readers may be feeling a sense of déjà-vu about this UN vote: This is not the first time it has come before the Human Rights Council. In 2015 and 2016—as the war in Yemen descended into complete calamity, its population subject to relentless bombing, mass arbitrary detention, famine, cholera, and impunity for every violation—the Council was called upon to decide on this issue. Yet Saudi Arabia and allied countries, in particular the US and the UK, repeatedly used their positions on the Human Rights Council to block any inquiry, and there is a risk they will now try to do so again.
An independent UN commission of inquiry is urgently needed. The people of Yemen are being battered from all sides. According to a recent UN report, 4,983 civilians have been killed and 8,553 injured in more than 1,000 incidents since March 2015. A man-made famine and a cholera epidemic have claimed the lives of thousands more, and, as an independent panel of experts mandated by the UN Security Council reported in January, all sides are committing “widespread violations” of international law in Yemen.
These reports confirm the findings of organizations who have been carrying out independent research on the ground since the outbreak of the conflict, such as the Mwatana Organization for Human Rights (co-authors of this blog, Radhya Almutawakel and Abdulrasheed al-Faqih are respectively chairperson and executive director of Mwatana), Amnesty International, Human Rights Watch, and others (see, for example, here, here, here, here, and here).
UN Commissions of Inquiry should only ever be part of a more comprehensive response to dire human rights emergencies, and always come with limitations. For example, UN commissions of inquiry ordinarily lack any formal power to enforce accountability, often face challenges carrying out investigations due to a lack of cooperation by the parties to a conflict, and may take some time to investigate and report their findings.
However, they perform essential functions as a credible, authoritative source of violations by all parties to a conflict and help focus the attention of the international community on a dire human rights emergency. By helping to uncover the truth through rigorous investigation they benefit victims, and provide the whole of society with a crucial and detailed historical record. Commissions of inquiry also go beyond conventional or narrower investigations by reporting on patterns of abuse, and identifying both the root causes of violations and the linkages between peace and security and human rights. As such, they are ideally placed to make recommendations for fuller accountability.
This post sets out six specific reasons why the US and other states, especially those close to the Saudi coalition, should support—or at the very least, not obstruct—the establishment of an independent, international commission of inquiry into Yemen. They are:
(1) Establishment of an independent, international inquiry into Yemen would help states fulfill their legal obligations to investigate, and would be an important step toward holding perpetrators accountable and ensuring respect for international humanitarian law. States have a duty to investigate alleged violations of international human rights law. Investigations must be prompt, thorough, effective, independent, impartial, and transparent. These duties continue in times of armed conflict, even if the circumstances of armed conflict may affect the modalities of a particular investigation. International humanitarian law also requires that alleged violations be investigated, suppressed, and that war crimes be criminally prosecuted. Additionally, other states may, and in some cases, must, investigate and prosecute perpetrators of war crimes, regardless of where the crime was committed or the nationality of the perpetrator or the victim.
The creation of an independent, impartial mechanism capable of investigating allegations in a manner consistent with international standards would help states to fulfill these legal obligations. A UN commission would also have the mandate to review and reckon with the wide range of abuses in Yemen in a level of detail that would help enable future criminal accountability for perpetrators of war crimes. An international inquiry is needed because domestic-level investigation efforts have been inadequate and have not met states’ legal obligations:
- Yemen. The most notable effort at domestic accountability on the Yemeni government’s side has been the establishment of a national inquiry, yet this has clearly failed to meet international standards. In both 2015 and 2016, the Saudis and other states opposed to an international inquiry used the existence of a domestic Yemeni inquiry to argue against the establishment of an international mechanism. Yet, as the UN Deputy High Commissioner for Human Rights explained in March 2017, the national commission has failed “to comply with internationally recognised standards of methodology and impartiality.” The Houthis, for their part, have shown no indication that they take accountability seriously at all.
- Saudi Arabia and other states in the coalition. These states are responsible for ensuring that their own forces, and any militias or armed groups over which they exercise control, adhere to international law, that alleged violations are investigated, perpetrators brought to justice, and a remedy provided for victims. The mechanism established by the Saudi-led coalition—the Joint Incident Assessments Team (the JIAT)—has failed to meet international standards for investigations. Key problems with the JIAT include: a lack of transparency about the JIAT’s members, its terms of reference, and methodology; issues with the JIAT’s impartiality; and a lack of clarity about its mandate and authority leading to concerns about its effectiveness. The JIAT also has a narrow focus that would make it difficult, if not impossible, for it to effectively investigate the alleged widespread, systemic patterns of abuse occurring in Yemen. An August UN report states bluntly that efforts towards accountability by parties to the conflict remained “wholly insufficient to respond to the gravity of the violations and abuses that are continuing every day in Yemen.” A broader, all-encompassing mechanism is required, with follow up to ensure that meaningful accountability actually takes place. If the Saudis are genuine about improving their practices, they can cooperate with the international investigation and show their commitment to adhering to international law.
By establishing an independent, international commission of inquiry, all other states, particularly those involved in supporting parties to the conflict in Yemen, can take a meaningful step toward implementing their duty under Common Article 1 of the Geneva Conventions to ensure that the parties to the conflict respect international humanitarian law. The International Committee of the Red Cross’s 2016 commentary on the Geneva Conventions states that Common Article 1 means that States must “do everything reasonably in their power to prevent and bring such violations to an end.” These obligations are of particular relevance to states that provide support to parties to the conflict and/or have significant leverage over them, such as the United States.
(2) An independent, international inquiry would advance Yemenis’ rights to truth and accountability. Victims in Yemen have the right to truth and a remedy for violations they have suffered. The right to truth includes “verification of the facts and full and public disclosure of the truth.” Society as a whole has a right to information relating to serious violations of human rights. An independent, international inquiry would go a long way toward advancing these rights because it would provide an authoritative evaluation of violations, patterns of abuse, attribution of conduct to specific parties to the conflict, and provide concrete recommendations for the full realization of these rights.
The extremely limited mechanisms in place—the Yemeni national inquiry and the Saudi JIAT investigation—are clearly not capable of delivering this. While the JIAT investigation has recommended that the Saudi-led coalition pay compensation in a few isolated cases, as noted in an August UN report, “no concrete actions have been taken [by the Saudi-led coalition] in relation to either prosecutions or reparations to the victims and survivors.” As noted above, the Yemeni national inquiry has been criticized for taking so little action. Neither of these mechanisms are capable of undertaking the needed full reckoning of the conflict and investigating the alleged violations by all sides. While a UN inquiry alone would not be able to provide all that is needed, it will be a key component part of truth and accountability efforts—providing a detailed assessment of the conflict upon which remedial and accountability mechanisms can be built.
(3) An independent, international inquiry could aid peace efforts and reduce continued violations. In the absence of a peace deal, and with widespread impunity providing little or no deterrence to the parties to hold back, the situation in Yemen worsens and Yemeni people continue to suffer. These violations in turn are only likely to prolong the conflict and the suffering of the Yemeni people. As US Ambassador to the United Nations Nikki Haley has said, “Respect for human rights is deeply intertwined with peace and security and that human rights violations and abuses often serve as triggers for instability and conflict.” An effective, international mechanism that raises the prospect of meaningful accountability for abuses in Yemen, and the thorough documentation and attribution of war crimes, is an important step that can help constrain the actions of abusive actors.
(4) An independent, international inquiry would facilitate comprehensive investigations of abuses by all sides, including by the Houthi armed group and forces led by their ally, former President of Yemen Ali Abdullah Saleh, and al-Qaeda in the Arabian Peninsula (AQAP), as well as the Yemeni armed forces under the command of current President Abd Rabu Mansour Hadi, and armed groups loyal to him. There are numerous alleged violations by AQAP and the Houthi-Saleh forces. An independent, international inquiry would unearth the nature and scope of violence by non-state armed actors, and provide a balanced and authoritative account of violations by all parties to the conflict, which can serve as a basis for future and fair accountability and reconciliation processes.
(5) An independent, international inquiry can complement US efforts to bring the Saudi-led coalition into compliance with the law. US officials have stated on a number of occasions that they are “concerned about civilian casualties in Yemen” and have urged “all sides to take additional measures to mitigate against the risk of civilian harm.” In June, the US government reportedly approved the potential sale of $1.4bn of military support to Saudi Arabia. Part of this package included $750m for training that the US Defense Security Cooperation Agency said would “include such subjects as civilian casualty avoidance, the law of armed conflict, human rights[,] command and control.” On a number of occasions, former US officials have expressed frustration that the “Saudis were not always listening to our advice.” If the US is serious about improving Saudi policies, practices, and respect for international law, then it should support the establishment of a UN commission of inquiry because it would not only help to pressure the Saudi-led coalition to better improve their practices, but also help identify shortcomings that might be remedied by US assistance and advice.
(6) Establishing an independent, international inquiry into Yemen helps the Human Rights Council to fulfill its mandate to respond to human rights emergencies in a credible and effective manner. From the outset, the new US Administration has been critical of the Human Rights Council, including because, in the words of Haley, “the victims of the world’s most egregious human rights violations are too often ignored by the very organization that is supposed to protect them.” Pledging that the US “seek[s] to reestablish the Council’s legitimacy,” Haley said in a June speech in Geneva that the Human Rights Council “is at its best when it is calling out human rights violators and abuses, and provoking positive action” and that, when it “fails to act properly—when it fails to act at all—it undermines its own credibility and the cause of human rights.”
Haley is right. Resolution 60/251 of the UN General Assembly (GA) mandates the Human Rights Council to address “situations of violations of human rights, including gross and systematic violations.” Yemen—a situation where the national inquiry was tried, and has failed, where the situation has drastically worsened in the past years, where there are numerous, continuous, and credible allegations of “widespread” egregious violations by all sides—is clearly a situation where the Council must act, and act decisively. This is crucial to the credibility and legitimacy of the Council that the US has pledged to protect.
While the Council has been criticized at times for failing to adhere to principles of “impartiality, objectivity and non-selectivity” set out in Resolution 60/251, its practice on establishing international, independent commissions of inquiries and fact-finding missions is much better. If the US obstructs this kind of accountability to comply with the wishes of its ally Saudi Arabia, then many will see the US’ actions as descending to the kind of “political manipulation” that Haley was so concerned with. Ambassador Haley pledged that the US will “never give up the cause of universal human rights.” If this pledge is to have any meaning, then the US should not leave the “most vulnerable to suffer and die” but must work toward real and meaningful accountability for the people of Yemen by supporting the creation of an international commission of inquiry.