Why No International Inquiry in Yemen?

Publication Date: 
Wednesday, November 4, 2015
Yemen was already deep in the throes of a humanitarian crisis before the cyclone hit

Last month, the United Nations Human Rights Council (UNHRC) reviewed two resolutions to investigate serious violations of international law committed during the conflicts in Sri Lanka and Yemen. In the case of the Sri Lankan civil war, which ended in 2009, the Council approved a resolution calling for the establishment of a hybrid court to prosecute grave violations of international law, including war crimes and crimes against humanity. In the case of Yemen, the UNHRC dropped plans for an international inquiry into human rights and humanitarian law violations by all sides in the ongoing conflict, in light of strong resistance by Saudi Arabia and other members of the international military coalition currently carrying out airstrikes in the country. Instead, the Council voted to support a decree by exiled Yemeni President Hadi, with Saudi support, to create a national commission of inquiry, with the Council agreeing “to provide technical assistance and to work with the government of Yemen, as required, in the field of capacity building.” What accounts for this difference in the international community’s will to investigate and prosecute alleged serious violations of international law, and what are the consequences of such disparate treatment?

Deferring Investigation in Yemen

The UNHRC’s compromise resolution on war crimes investigations in Yemen comes amidst sharply escalating conflict and mounting civilian casualties in the country. The UN estimates that over 2,300 Yemeni civilians have been killed since the Saudi-led military coalition intervened in the country in March of this year, largely as a result of coalition airstrikes. In a report issued on September 11th, UN High Commissioner for Human Rights Zeid Ra’ad al-Hussein recommended the establishment of an independent and impartial inquiry into serious violations committed during the conflict in Yemen. His calls were subsequently echoed by the UN special advisers on the prevention of genocide and the responsibility to protect and a number of international NGOs. They allege serious violations of international law including indiscriminate and disproportionate attacks on civilians and civilian objects, the recruitment of child soldiers, and torture and mistreatment of detained persons.

Yet at its recent meeting on September 25th, the Council dropped plans for an international inquiry under pressure from Saudi Arabia and other coalition partners. Instead, on October 2nd it passed a watered-down resolution calling for technical assistance and capacity-building for Yemen on human rights, and “welcoming” the appointment of a national commission of inquiry under the exiled government – both decisions which have been heavily criticized. James Lynch, Deputy Middle East and North Africa Director at Amnesty International, responded by calling the resolution “a shocking failure by the Human Rights Council to meet its obligation to ensure justice and accountability [that] sends a message that the international community is not serious about ending the suffering of civilians in Yemen.” Similarly, Human Rights Watch chastised the UNHRC as having “squandered an important chance to deter further abuses,” and “failed to generate effective international scrutiny over attacks by all the warring parties that have caused thousands of civilian deaths in Yemen in just a few months.”

Considering that the primary responsibility to investigate and address serious abuses rests with national governments, a national commission of inquiry could provide an opportunity for justice. “[W]hile they can theoretically hold promise for accountability and can be effective in some circumstances,” notes Sarah Knuckey, however, national commissions “too often are set up to fail, or have the effect of whitewashing legal violations because of critical structural flaws,” as underscored in a 2008 UN study. As a result, writes Knuckey, “The failure to mandate an independent UN inquiry is a clear blow to accountability in Yemen.” Another reasonable source of suspicion regarding the efficacy of the proposed national commission lies in its conception by the now-exiled Hadi government with the backing of Saudi Arabia, which stands accused of many of the violations that the commission would purportedly set out to investigate.

Deferred Justice for Sri Lanka

In contrast, critics are hailing the UNHRC’s adoption of the resolution to investigate war crimes in Sri Lanka’s civil war as a milestone for international justice. “The adoption of this resolution is a turning point for human rights in Sri Lanka,” said David Griffiths, Amnesty International’s South Asia Research Director, adding that “if the resolution and the underlying commitments of Sri Lanka’s government are implemented in good faith, it presents an opportunity for victims to finally get the truth and justice they have been waiting for.” The Office of the High Commissioner called resolution’s adoption a “historic opportunity for Sri Lanka to address the grave human rights violations and abuses that its people suffered, at the hands of both the LTTE (Liberation Tamil Tigers of Eelam) and the government, during the conflict and in its immediate aftermath.” UN High Commissioner Zeid urged the creation of a hybrid court for Sri Lanka to investigate and prosecute grave violations, including unlawful killings, sexual and gender-based violence, enforced disappearances, torture, recruitment of child soldiers, attacks on civilians and civilian objects, and denial of humanitarian assistance.

Despite this optimism, some groups remain skeptical of the resolution’s prospects for achieving justice for Sri Lanka’s victims. Namely, the UNHRC passed a resolution supporting the Sri Lankan government’s plan to establish a domestic or hybrid mechanism, rather than an international investigation as previously supported by the United States. Many observers seriously doubt whether a domestic court – even with hybrid international elements and assistance – will be sufficient to address crimes committed by all sides in the conflict, including government forces themselves.  “This current consensus draft has been watered down from a previous version and diverts significantly from the recommendations of the Office of the High Commissioner for Human Rights’s recent report,” said Samir Kalra, senior director and human rights fellow for the Hindu American Foundation. Where the decision on Sri Lanka differs from Yemen, however, lies not in the primacy of national institutions, but rather in the establishment of a court to prosecute serious crimes, rather than simply a commission of inquiry. However flawed, this court will have prosecutorial as well as investigatory powers, meaning that it can actually hold individual perpetrators accountable for serious crimes.

What accounts for the difference?

Why did the situations in Yemen and Sri Lanka receive such disparate treatment by the Human Rights Council last month? One explanation for the difference in international efforts to investigate alleged war crimes in Sri Lanka and Yemen could be the severity of the allegations. Since international mechanisms are only intended to address the most serious violations of international law, their application is inherently selective. Yet given that the allegations arising out of Yemen and Sri Lanka – such as torture, recruitment of child soldiers, and widespread indiscriminate and direct targeting of civilians – both situations would seem to meet the threshold for international inquiry.

Another factor that may explain the difference is time. The conflict in Sri Lanka formally ended in 2009, and a new government elected in 2015 has been more open to investigation and prosecution. In contrast, the conflict in Yemen remains ongoing and hotly contested and therefore presents a much more difficult environment for investigation, let alone prosecution, of those currently in power. However, it may also be argued that a war crimes investigation is more urgently needed in order to protect civilians and deter or bring about a cessation of the ongoing violations of international law. It is often more feasible to conduct investigations after the conflict has ceased, though the longer an investigation takes to begin after the acts in question occur, the more difficult it is to collect evidence and establish proof.

Another closely related factor is politics. Considering that international investigations and prosecutions are not automatically engaged but must be mandated by political actors such as the UNHRC or UN Security Council, a certain amount of consensus is required to establish a commission of inquiry or special tribunal, whether in the UN Human Rights Council, UN Security Council, or other international body. It may be that investigations into violations of international law in Sri Lanka – a primarily internal conflict – are simply less contentious than those in Yemen, in large part due to the greater geopolitical pressure against investigating parties that may be involved, such as Saudi Arabia or the United States. The exception to a mandate by a political body is investigation by the International Criminal Court (ICC), as the ICC Prosecutor may initiate an investigation propio motu; however such investigations are limited to alleged crimes falling within the jurisdiction of the Court. Nonetheless, we should distinguish the political natural of mandating process for commissions of inquiry – whether within the Human Rights Council or elsewhere – from the process of inquiry itself. As noted in the HPCR Advanced Practitioner’s Handbook on Commissions of Inquiry—and in this article written by my ATHA colleague Rob Gracepractitioners working on commissions of inquiry strive to insulate themselves from the political forces inherent in the environment in which they operate. So while politics may present an obstacle to the creation of a commission of inquiry or tribunal, once mandated, these international commissions can and often do carry out independent, credible and professional investigations into alleged violations and are not merely the product of political machinations.

Overall, the prime factor explaining the disparate international treatment of alleged serious violations of international law seems to be the ongoing nature of the conflict in Yemen, as opposed to Sri Lanka, and the inherent political and practical difficulties for investigation and prosecution that that entails. Yet the hesitancy of the international community to address ongoing violations of international law highlights a broader deficiency in international enforcement mechanisms – namely that most of these mechanisms are aimed at the prevention (before the fact) or punishment (after the fact) of violations; effective means of halting ongoing violations remain lacking in international law. Investigations and prosecutions – such as those envisioned for Sri Lanka – can provide justice for victims and accountability for perpetrators after serious violations have occurred, and may deter future violations. In the context of Yemen, however – where the conflict has resulted in staggering civilian losses and reduced the country to near total dependency on international humanitarian aid, which is further limited by severe access restrictions and attacks on aid workers – even the proposed (and rejected) international commission of inquiry would have been unlikely to halt ongoing violations. In the longer term, serious investigation efforts are essential to the enforcement of international law, and the achievement of at least some measure of justice for victims of these crimes. Yet investigations alone are insufficient; new mechanisms and international fora are needed to address ongoing violations of international law in a manner that transcends political strife.


Hakimi bin Abdul Jabar's picture




More than 1,100 children have been killed in Yemen, most in airstrikes by the Saudi military coalition, while some as young as 10 have been recruited to fight, according to the latest UN figures on the three-year conflict.


Based on interviews with survivors, witnesses and family members as well as site visits, a report by the UN human rights office reveals an escalation in hostilities in the country, with more airstrikes in the first half of this year than in all of 2016. Human rights violations and abuses continue unabated, with at least 5,144 civilians killed and 8,749 injured in what the UN describes as an “entirely manmade catastrophe”.





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