Yemen, A Devastated Country Where Impunity Has Become Endemic

Yemen, A Devastated Country Where Impunity Has Become Endemic

The United Nations Human Rights Council promoted, in September 2017, the establishment of a group of experts, which you chair, to monitor and report on the human rights situation in Yemen. What are the mandates received and the objectives of your work?

The Group of Eminent International and Regional Experts on Yemen (GEE) was established by Human Rights Council Resolution 36/31, adopted on 29 September 2017. In 2020, the group of experts presented its third Report at the 45th session of the Human Rights Council, after a first Report in 2018 (A/HRC/39/43) and a second (A/HRC/42/17) in 2019. The period covered is from 2014 to July 2020. Three experts make up the GEE: Melissa Parke (Australia) and Ardi Imseis (Canada), who replaced Charles Garraway (United Kingdom of Great Britain and Northern Ireland), as well as myself as president.

The terms of the mandate are as follows:

  1. a) Monitor and report on the situation on Human Rights in Yemen; carry out a comprehensive examination of all alleged violations and abuses of international human rights and other appropriate and applicable fields of international law committed by all parties to the conflict since September 2014, including possible gender dimensions of such violations; establish the facts and circumstances surrounding the alleged violations and abuses; identify those responsible for the violations, where possible.
  2. b) Make general recommendations on improving the respect for and protection and fulfilment of human rights; provide guidance on access to justice, accountability, reconciliation and healing, as appropriate.
  3. c) Engage with Yemeni authorities and all stakeholders, in particular relevant United Nations agencies, the field presence of the Office of the High Commissioner in Yemen, authorities of the Gulf States, and the League of Arab States with a view to exchanging information and providing support for national, regional and international efforts to promote accountability for human rights violations and abuses in Yemen.

 

Three years after your appointment, is it possible to make a balance of your work, its results and prospects?

The war in Yemen has been raging for six years, and no end is in sight. As in its previous Reports, the Group of Experts continued to investigate and draw conclusions on the violations, which show that all parties to the conflict are causing constant harm to civilians. Whether it is illegal airstrikes, indiscriminate bombing, obstacles to humanitarian aid, land mines, arbitrary detentions, torture, sexual violence and enforced disappearances, attacks on journalists, human and minority rights defenders, violations of the rights of women, men, migrants and children (including child soldiers), impunity is endemic and Yemen is a devastated country. This is the title of our third report, Yemen: the pandemic of impunity in a tortured land.

Hostilities are ongoing and have intensified – mainly in the second half of 2019 – along with a growing fragmentation of the military and political authorities. The climate of fear for all those living in Yemen has also grown, despite political agreements and high-level discussions between key players.

On July 28, 2020, at the Security Council, emergency aid coordinator Mark Lowcock said that hostilities have escalated across the country, with 43 active frontlines – up from 33 in January – and there has been an increase in incidents that have caused damage to civilians for the third consecutive quarter.

Political and military challenges have increased tenfold with the emergence of Covid-19. Although the United Nations Secretary General has called for a global ceasefire in order to be able to concentrate all efforts on preventing the danger posed by the pandemic – an appeal which was followed by a specific request for a ceasefire in Yemen – this has not materialized on the ground.

Finally, civilians in Yemen continue to pay the highest price, living in a situation of permanent conflict and constant danger. The results of our report are a snapshot of this situation and confirm that 2019 was the second year, after 2018, with the highest number of victims since the start of hostilities.

However, recording of victims is not part of our mandate. We believe it is very difficult, due to the restrictions imposed by the warring parties and other factors limiting humanitarian and human rights work in Yemen, to establish precise figures for civilian casualties in Yemen or even an adequate disaggregation of data. The same is true for the thousands of civilians who died due to the deterioration of socio-economic, health and humanitarian conditions, which outnumber those who died as a direct consequence of the war.

According to various sources, since the beginning of the war about 12,000 civilians have died as a direct effect of the conflict (Source: Armed Conflict Location & Event Data Project). In 2019, more than a thousand civilians and almost 200 in the first three months of 2020 were killed (Source: Protection Cluster Civilian Impact and Monitoring Project). A projection of the United Nations Development Program (UNDP), published in April 2019, estimated at 130,000 the indirect victims, or people who, within that year, would have died in Yemen due to the deterioration of the socio-economic, health and humanitarian conditions of the country.

 

Your September 2019 Report indicated a «pervasive lack of responsibility» for violations of international humanitarian law and human rights by all parties to the conflict, «responsible for arbitrary deprivation of the right to life, arbitrary detention, enforced disappearances, sexual violence, torture, ill-treatment, recruitment of minors, violations of fundamental freedoms and violations of economic, social and cultural rights». A heavy and dramatic picture that, however, seems to little shake and mobilize world public opinion as well as governments. The war in Yemen is perhaps more hidden and forgotten than the others. Is that so? Who bears responsibility for it and what are the possible solutions?

A key element of the GEE’s mandate concerns the pursuit of accountability for violations and abuses of international human rights law and violations of international humanitarian law committed in Yemen since 2014. Thanks to Resolution 42/2 of the Human Rights Council, the GEE has the power to:

  • «identify those responsible for the violations, where possible» (§ 12 a);
  • provide guidance «on access to justice, accountability, reconciliation and healing, as appropriate» (§ 12 b);
  • dialogue with various authorities and stakeholders, in order to exchange information and provide support to «provide support for national, regional and international efforts to promote accountability» (§ 12 c).

In its various reports, the GEE highlighted the prevailing impunity and the lack of responsibility for the serious violations identified. It examined and criticized in detail the investigation systems in Yemen and outside Yemen: in particular, the work of the National Commission of Inquiry of the Yemeni government and the Joint Incidents Assessment Team (JIAT) on the cases involving the coalition and, to a lesser extent, the investigations by the Houthi authorities (de facto), due to the limited information made available to the GEE by the Houthis themselves. The GEE concluded that the parties’ inability to acknowledge responsibility for the violations and their refusal to take significant action to remedy this situation resulted in a general lack of accountability. The GEE has established the identity of the authors, filed with the High Commissioner for Human Rights.

After six years of conflict, with the situation on the ground for civilians not at all improved, and impunity continuing to prevail, the Group of Experts firmly believes that new initiatives are needed to address the issue of responsibility.

Although the parties to the conflict have a primary duty to investigate and prosecute perpetrators of serious violations that constitute crimes under national or international law, the Group is concerned about the lack of progress in this area.

The GEE recognizes that the Yemeni judicial system is not the only one suitable for prosecuting crimes resulting from violations committed in that country. However, this is the system that risks having to deal with the greatest number of cases. The Group of Experts therefore gave priority to reviewing the current functioning of the Yemeni system to determine its ability to handle conflict-related cases in a manner consistent with international standards.

The GEE concluded that serious violations of international human rights law occur in the administration of justice. The specialized criminal court, particularly in Sana’a, is used as a tool to eliminate dissent, intimidate political opponents and/or build political capital to be used in negotiations. This was evident in cases such as those launched against 35 deputies and 10 journalists. The most common violations of the right to a fair trial include the use of torture to obtain confessions and the refusal of access and/or confidential and secure communications with one’s legal representatives. Furthermore, due to political interference and corruption, the right to be tried by an impartial and independent court cannot be guaranteed. In addition, judicial officials face attacks, arrests, threats and intimidation for political or personal reasons.

The GEE has repeatedly appealed to the competent authorities to promptly investigate the alleged violations and prosecute those responsible, in accordance with international obligations. However, we are not aware of any completed trial related to documented violations. The progress made by the parties is therefore extremely limited. For the government of Yemen: 2,490 cases have been investigated by the National Investigation Commission, 1,000 cases have been referred to the Attorney General, but only 19 trials have started. For the coalition: 190 investigations have been carried out by the JIAT, 8 cases have been forwarded to national military prosecutors. For the de facto authorities: no information available, which led the Group of Experts to question their commitment to liability.

The GEE concluded that the Yemeni judicial system does not have the means and capacity to prosecute responsibility for crimes in a manner consistent with international human rights law.

In our previous Reports we had foreshadowed the need for new international initiatives and this year we have clarified the form these initiatives could take.

The EGE believes that the situation in Yemen should be referred to the International Criminal Court (ICC) by the Security Council. This view is based on the persistence of violations that can be assimilated to international crimes and on the lack of accountability of the perpetrators of such violations and crimes. The ICC was created precisely to ensure that the most serious crimes affecting the international community as a whole do not go unpunished and for the need of an international body that can prosecute when States do not want to or can do it. The ICC has existing mechanisms to allow the investigation and prosecution of the «main perpetrators» of international crimes under the Rome Statute.

In addition to the individual cases that the ICC could judge, taking the matter to court sends a strong message: no one is above the law and the international community recognizes the importance of the violations and crimes committed in Yemen.

The GEE identifies the Security Council sanctions regime as part of the international community’s response to ongoing violations. However, it is clear that only a small number of individuals (as well as only one of the parties to the conflict) are currently subject to this sanctions. Given that existing criteria allow for the designation of individuals on the basis of their involvement in violations of human rights and humanitarian law, the Group encourages the Security Council to consider expanding the list, based on the information available.

The GEE identified the need for further criminal justice-focused investigations to support the prosecution of violations and crimes committed in Yemen. In particular, the Group suggested the creation of a body similar to that set up by the Human Rights Council for Myanmar, or the Security Council for Syria, which could carry out more in-depth investigations, using methodologies focused on criminal justice, preparing dossiers to share with the competent authorities, at national, regional or international level.

The Group recognizes that the creation of a specialized court would take time and also a supportive environment, particularly if a hybrid mechanism involving Yemen were to be considered. It is also important that the formation of such a body is based on subsequent consultations with all interested parties. The Group shared its opinion on the need to create a new and specific Court or Tribunal, while acknowledging the need for further debate. It then reminded states that they must investigate war crimes within their jurisdiction and, if appropriate, prosecute such crimes. States must also fulfil their obligations under international human rights law to prosecute or extradite. Finally, it has more broadly encouraged third countries to work together to allow them to exercise their judicial powers under “universal jurisdiction”, where appropriate.

 

Due also to the conflict, the Yemeni population is experiencing a dramatic health situation, which has seen over two million cases of cholera, as well as dengue, malaria, chikungunya and other diseases spread at epidemic level, complicated by hunger and famine. In that context, what has the Covid-19 pandemic entailed? What measures have been taken by the government authorities and the warring parties? Were they effective?

The Covid-19 epidemic occurred in a context in which barely half of the health facilities in Yemen were functioning. Operational facilities are poorly equipped to deal with the disease. Further problems are those related to malnutrition, subsequent outbreaks of infectious diseases, such as cholera, dengue fever and the chikungunya virus, and the particular vulnerability of some groups due to displacement and poor access to health services, such as displaced persons and refugees.

Added to this are the grossly inadequate measures taken by the Yemeni authorities, the Houthis and the UAE-backed Southern Transition Council, poor data collection and reported attempts to hide information on infection rates. Consequently, it is very difficult to establish the exact number of people who have died as a result of Covid-19, as the official figures do not reflect reality. The Group of Experts has repeatedly called for the release of the prisoners, one of the population groups at greatest risk of infection.

The current lack of funds for international humanitarian assistance exacerbates the crisis in the country. At the important event held in Riyadh in June 2020, donors pledged only $ 1.35 billion of the $ 2.41 billion needed to cover essential humanitarian activities between June and December 2020. This gap is all the more concerning because, according to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), as of mid-April 2020, 31 of the 41 United Nations programs essential for the fight against Covid-19 have been reduced or closed due to lack of resources. Half of all major UN programs in Yemen suffer from lack of funding, so that already 12 of the 38 major programs have been closed or drastically curtailed. Another 20 programs are likely to be further curtailed or closed between August and September 2020. Ramesh Rajasingham, Deputy Secretary General for Humanitarian Affairs, said that by the end of August, without additional funding, water and sanitation programs will be downsized by 50% in 15 cities; aid to nearly 400 additional health facilities will be stopped in September, depriving 9 million people of medical care; treatment will be stopped for more than 250,000 severely malnourished children, children who will die without assistance.

 

According to data from the World Health Organization, at least 142 attacks on hospitals and other medical facilities have occurred in Yemen since the start of the war. Currently, less than 50% of health facilities are functioning, in addition to a shortage of specialists, equipment and medicines. Shouldn’t the deliberate attack on hospitals in itself be considered a war crime and the responsible parties referred to the International Criminal Court? What can be done to block or at least limit these actions?

The Group of Experts remains concerned about the massive damage caused to hospitals and medical facilities as a result of the behaviour of the parties to the conflict, which is exacerbating the humanitarian crisis in Yemen. In previous periods, the Group has investigated cases of military use of hospitals and the damages caused by attacks.

Under international humanitarian law, medical personnel, facilities and transport enjoy special protection. Consequently, medical personnel must be respected and protected at all times and their work can only be hindered for reasons of military necessity. The same protection extends to medical units and transport, which must be respected and protected at all times and under all circumstances and must not be attacked. But these facilities or personnel lose their protection if they are used to commit hostile acts. Even when it comes to a medical unit used against the enemy, a warning must be issued and, if necessary, a reasonable period of time must be granted before any attack. It is a war crime to intentionally direct attacks on buildings, materials, medical units, means of transport and people using the distinctive symbols of the Geneva Conventions, in accordance with international law. Furthermore, international humanitarian law provides that the wounded and sick are respected and protected, regardless of whether of not they had been previously involved in the conflict. In addition to the specific protections of international humanitarian law, international human rights law recognizes the right of all to the enjoyment of the highest possible standard of health. Actions that directly interfere with receiving health care may also constitute a violation of this right.

 

All wars involve violations of human rights, suffering and death in particular for the civilian populations, but also, at the same time, great profits for those who produce and sell armaments. The war in Yemen is no exception. Many of the bombs that fall on the Yemenis are of European production, as noted and also denounced by your Group of Experts. Here too: why can’t this bloody trade be prevented? What tools and powers can – or should – have the United Nations Agencies and the International Criminal Court in this regard?

In some cases, the provision of weapons or logistical support to one of the parties to the conflict could amount to knowingly «aiding or assisting» the party in the commission of an internationally wrongful act, thus making the state supplying the weapons responsible for this act. However, it remains to be determined whether the conditions for complicity, particularly in war crimes, are met when it comes to states transferring arms to Yemen.

Canada, France, Iran, the United Kingdom and the United States are specifically mentioned in our Report, as part of a non-exhaustive list, particularly with regard to arms transfers. Like any third country, they have the obligation to ensure and guarantee compliance with international humanitarian law. However, the responsibility for taking measures increases with the level of influence a particular state has over the parties to the conflict.

The states mentioned have a great influence on the parties involved in Yemen. And they are mentioned in this Report because of that influence, which weighs on their responsibility as third states. The volume of their arms transfers and the likelihood of those weapons being used in the Yemen conflict are determining factors. However, we have not carried out a specific investigation on these transfers because it is not part of the mandate of the GEE.

The Security Council Group of Experts is already examining these issues in detail. As I said, the Group did not address this particular issue of arms procurement from Iran; it would be up to others to do it. Moreover, the information we have on the amount of arms transfers from the states that we have mentioned is in the public domain.

The GEE Report concluded that some of the coalition’s attacks constitute violations of international humanitarian law. The GEE has not made specific submissions to domestic courts, but it may be that the courts of the UK or any other country examining these issues will need to consider in more detail some of the potential violations raised by the GEE to determine whether arms sales can continue. The GEE urges all states concerned to refrain from supplying weapons to any of the countries involved in the conflict in Yemen, given the high probability that these weapons could be used to commit violations of international humanitarian law.

The Group once again reminded states that they must investigate war crimes within their jurisdiction and, if appropriate, prosecute such crimes.

 

Yemeni children are paying an even more terrible price than the rest of the population. Do you have any data on this?

After six years of conflict, serious violations of children’s rights continue to cause irreparable damage and suffering to the growth and life of children in Yemen. Today these children represent half of the 24.3 million people in need of humanitarian assistance in the country. Additionally, due to their reliance on families and communities for support, care and protection, children in Yemen are often collateral victims of violations carried out against their families, teachers and doctors who have lost their lives or source of income, have been detained, displaced or have suffered other violations.

The behaviour of all parties to the conflict often affects the fundamental right of children to life, health, development, protection from violence, injury and abuse, as well as their right to education. Data from the Yemen Protection Group’s Civil Impact Monitoring Project show that, from January to June 2020, of the total victims of any action of armed violence, including air strikes, by all parties in conflict, 28% of the killed and 30% of the injured were children (Source: https://civilianimpact.activehosted.com/archive/15).

In June 2020, the Secretary General removed coalition forces from the list attached to its Annual Report on Children and Armed Conflict (“black list”) and identified the forces and groups involved in the violation of children’s rights in this conflict. This decision was made by the Secretary General despite his own reports mentioning 222 children killed or maimed by coalition forces, including 171 children in airstrikes in 2019, which represents a 69% decrease to be attributed to the coalition in 2018, but the fact remains that the infant mortality rate is still very high. Rather, the criteria set by the Secretary General in 2010 specify that the removal from the “black list” can only take place after violations have ceased completely for a period of one year, regardless of the protective measures taken. The GEE therefore expresses concern over the withdrawal from the list of coalition states led by Saudi Arabia and the United Arab Emirates, as many children continue to be killed or maimed as a result of the conflict. It should be noted that in the list there are still other subjects not belonging to the coalition and it is emphasized the need for an equal application of the standards set by the Secretary General of the United Nations in 2010 for inclusion/removal from the list within the monitoring and reporting mechanism of all parties to the conflict in Yemen.

In a context of severe food insecurity, obstacles to humanitarian assistance and economic decline, the rates of malnutrition and hunger among children are extremely high. These figures have further increased after the outbreak of Covid-19. Although the virus spares most children, the outbreak increases the risk for adults who care for them and their livelihoods, as well as vital health and education services. This, in turn, increases the risks of resorting to economic survival strategies, such as child recruitment, early and forced marriage, and employment.

UNICEF and the Yemeni Health Cluster reported that the interdependence of the outbreak and the cumulative impact of years of conflict on the Yemeni health system and its funding resulted in an 81% decrease in services from January to April 2020; the end of vaccination programs against tetanus, diphtheria and polio and the closure of schools (affecting 7.8 million children). According to UNICEF, by the end of 2020, these factors could lead an additional 30,000 children in Yemen to suffer from severe and severe malnutrition, about half of children under five to be malnourished and a 28% increase in avoidable deaths from children under five.

The GEE found compelling reasons to believe that the Houthis, the government of Yemen and the coalition continued to undermine children’s right to education and recruited children for use in the conflict, in violation of international human rights law and international law humanitarian. The recruitment of children under the age of 15 into the military or in groups or using them to actively participate in hostilities is a war crime. The Group also concludes that the military use of schools and violations against teachers, limit children’s access to education during the conflict, while Houthis’ indoctrination activities undermine the correct goals of an education aimed at developing respect for human rights and the preparation of children for a responsible life in a free society. Finally, the GEE found that the Houthis violate educators’ right to freedom and personal safety, as well as the right to free speech.

 

You have a long and qualified experience as a human rights defender. The war in Yemen has been called «the worst humanitarian disaster caused by man». Do you confirm this assessment? If so, what are the negative features that characterize that war compared to many others?

The numbers are eloquent in this regard. In March 2019, the World Food Program announced that Yemen was facing «the biggest food crisis in the world». As of June 2019, famine cases were confirmed in dozens of locations across Yemen by the relief coordinator. It is estimated that 24.1 million people needed assistance to survive at the beginning of 2019, nearly 80% of the population, including 18.2 million women and children. According to humanitarian services organizations, 3.2 million people needed acute malnutrition treatment as of December 2018, including over 2 million children under the age of five, while 1.14 million women, girls, pregnant or breastfeeding women suffer from malnutrition and 144,000 women have complications during childbirth.

In 2014, Yemen had already been declared the victim of a large-scale humanitarian crisis, with over half of the population in need of some form of humanitarian assistance. The conflict has exacerbated pre-existing vulnerabilities, including heavy reliance on imported food, medical supplies and fuel, as well as remittances from a sizeable overseas workforce.

It is feared that all warring parties in Yemen have used hunger as a method of warfare, attacking objects essential for the survival of the population, imposing sieges or using military blockades as a tactic and even preventing the delivery of humanitarian aid. The effects of these actions have been exacerbated by the failure to respect economic, social and cultural rights, in particular the right to an adequate standard of living and the right to work.

In this context, it is also necessary to reiterate the strong appeal made by the Security Council in Resolution 2417, which urges states to conduct independent, comprehensive, impartial and effective investigations within their jurisdiction into violations of international humanitarian law related to use of famine as a weapon of war.

* Chairman of the United Nations Group of Eminent Experts on human rights violations in Yemen

interview by Sergio Segio:  This statement was published in the Global Rights Report – State of the World’s Impunity 2020

 

 

ph by Felton Davis, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons

 



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