The following analysis was prepared by the YPP's legal advisors.
The United Nations Human Rights Council (UNCHR) has the legal authority and supporting precedents to establish an independent international commission of investigation (“CoI”) in respect of the conflict in Yemen. Its failure to do so is completely inconsistent with well-established UN practice.
The 1991 UN General Assembly (UNGA) “Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security” makes clear that “[f]act-finding should be comprehensive, objective, impartial and timely.” The Declaration also recommends “using the United Nations fact-finding capabilities at an early stage in order to contribute to the prevention of disputes and situations.”
UN Security Council (UNSC) and UNCHR Resolutions provide ample authority to set up an appropriately staffed and empowered CoI to investigate allegations of human rights violations in Yemen. UNSC Resolutions 2140 (2014) and 2201 (2015) both emphasize the need for a strong and independent investigation. The June 15, 2017, Statement by the President of the Security Council reiterated the call to address the non-implementation of past resolutions. In his September 5, 2017 annual report, the High Commissioner sets out the political and material shortcomings (perceived or genuine) of current accountability mechanisms, in particular the national commission of inquiry in Yemen (National Commission) and the Joint Incident Assessment Team (JIAT - the mechanism established by the Saudi-led coalition to investigate its own actions).
In the conclusion of this report, “the High Commissioner repeats his call upon the international community to establish an international, independent investigative body to carry out comprehensive investigations of violations and abuses of international human rights law and violations of international humanitarian law in Yemen.”
International precedents demonstrate the anomaly of the UNCHR’s failure to act.
The UNCHR may on its own accord direct the creation of a CoI to complement the work of the National Commission. There is ample precedent to justify such action, as the High Commissioner's website makes clear:
United Nations mandated commissions of inquiry, fact-finding missions and investigations are increasingly being used to respond to situations of serious violations of international humanitarian law and international human rights law, whether protracted or resulting from sudden events, and to promote accountability for such violations and counter impunity. These international investigative bodies have been established by the Security Council, the General Assembly, the Human Rights Council, its predecessor, the Commission on Human Rights, the Secretary-General and the High Commissioner for Human Rights.
The High Commissioner has established and supported close to 50 CoIs since 1992. Recent investigative commissions and fact-finding missions were set up by the UN for Eritrea, DPRK, Sri Lanka, Palestine and Libya, inter alia. UN CoIs are currently active in Burundi, Myanmar and Syria.
The Syrian CoI provides a relevant example of successful UN action in a politically sensitive situation. Despite the fact several draft UNSC resolutions aimed at establishing accountability for war crimes in Syria were vetoed between 2011 and 2016, the UNCHR established on its own accord the “Independent International Commission of Inquiry on the Syrian Arab Republic” in August 2011, which has published more than 20 substantive reports. In addition, the UNGA recently established the “International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011” pursuant to Resolution 71/248 in December 2016.
The failure of action by the UNCHR and other UN bodies with respect to Yemen is particularly grave in view of the enormous impact of violations of international law upon the civilian population.
Two international investigative bodies have been established in the context of the Syrian conflict, while Yemen has none. The UNSC’s Panel of Experts, in its letter of 27 January 2017, documented widespread violations of IHL, IHRL and human rights norms by all parties to the conflict. Similar findings were published in the High Commissioner’s September 5, 2017, report on the situation of human rights in Yemen. These included forced displacement and forcible disappearance of civilians, routine use of torture, violations against hospitals, medical staff, children, and religious minorities, and use of explosive ordnance in populated areas as well as destruction of cultural heritage. All parties have obstructed the distribution of humanitarian assistance. In particular, the High Commissioner’s latest report underlines the fact that “[t]he sieges and blockades imposed by the warring parties have had a devastating impact on civilians, preventing them from leaving areas affected by conflict to safety and, when they remain, preventing them from accessing goods necessary for survival, including life sustaining or life-saving humanitarian assistance.” In particular, he notes that “[r]eportedly to enforce the UN-sanctioned arms embargo, the Coalition imposes de facto naval and aerial blockades.”
As noted in the 25 May letter to the UNSC of some 22 humanitarian non-profit organizations, the humanitarian crisis in Yemen is now the largest in the world. More than 18 million people are in need of assistance and 7 million are at risk of famine. The escalating cholera outbreak now affects nearly half a million people and has caused more than 2000 deaths according to the WHO. In addition, 5,676 coalition airstrikes were recorded between January and June 2017 alone, against 3,936 for the entire calendar year 2016. These airstrikes have taken a particular toll on children. 502 were killed, and 838 injured by coalition airstrikes, according to a draft report by the UN Secretary General. Over half of these casualties occurred during the last reporting period. The UN is allegedly preparing, for good cause, to include the coalition states in the list of countries that maim and injure children, pursuant to UNSC Resolution 1379.
The establishment of a fully empowered investigative body has been repeatedly called for by governmental and non-governmental entities in the context of the Yemen conflict. Further delay cannot be justified.