On 7 October the UN Human Rights Council (HRC) failed to adopt the mandate renewal of the Group of Eminent Experts (GEE) on Yemen. This marked the first time a mandate for a human rights monitoring mechanism was voted down at the HRC since its creation in 2006. The resolution failed to pass by a narrow margin, with 21 states against, 18 states in favor and 7 abstentions. The vote followed a sustained campaign of diplomatic and political pressure on HRC voting members by Saudi Arabia and the United Arab Emirates (UAE), primary actors in the conflict in Yemen whose conduct has been under investigation by the GEE.

The GEE described the vote as “a major setback for all victims,” stressing that, “now is the time for more action, rather than less.” The Dutch ambassador to the UN in Geneva declared that, “this Council has failed the people of Yemen.” The HRC’s failure was indeed a dereliction of duty and an abdication of member states’ responsibility to protect. The GEE was established by the HRC in 2017 to monitor and report on all alleged violations and abuses of international law in Yemen and, where possible, to identify those responsible. To date the GEE has produced four annual reports detailing likely war crimes and crimes against humanity perpetrated by all parties to the conflict.

The termination of the sole international and independent investigative mechanism on Yemen represents a historic failure. However, the UN General Assembly (UNGA) is uniquely placed to correct course and establish a new international accountability mechanism for Yemen.

Civilian suffering amidst a ‘pandemic of impunity’

Tens of thousands of Yemenis have been killed or maimed since the war escalated in 2015. Civilians have endured an unrelenting cycle of violations and abuses perpetrated by all warring parties, including the government of Yemen, the Houthis, the Southern Transitional Council, and members of an international coalition led by Saudi Arabia and UAE. The GEE has reported that these violations and abuses – including indiscriminate airstrikes and shelling targeting civilian objects, arbitrary detention, enforced disappearances, grave violations against children, unlawful humanitarian restrictions, sexual and gender-based violence, and torture – likely amount to war crimes and crimes against humanity. The lawless conduct of parties to the conflict has not only caused immense civilian suffering, but has also created one of the world’s worst humanitarian crises.

In 2020 the GEE characterized Yemen as a “pandemic of impunity.” Yet the public reporting of the GEE since 2017 helped fill – albeit in a small way – this immense accountability gap. The work and existence of the GEE sent a signal to Yemeni civilians that UN member states would not turn a blind eye to their suffering, and that the survivors and victims may one day be able to realize their rights to justice and reparation. However, by terminating the only international and independent investigative body, the HRC effectively abandoned the people of Yemen and entrenched impunity for perpetrators.

The accountability gap in Yemen

No realistic avenues for justice and accountability exist in Yemen. Countless institutional and financial challenges impede the capacity of the national judiciary from prosecuting violations and abuses perpetrated during the war. The few cases pending before the Yemeni judicial system and Saudi Arabia’s martial courts represent a fraction of likely crimes and perpetrators of any rank, affiliation or nationality that deserve judicial consideration. Although the government of Yemen announced in September 2020 its intention to establish a specialized court to prosecute human rights violations, no formal action has been taken to date. There are concerns as to whether such a court would be effective in addressing the sheer scale of atrocities in Yemen and if it would address the conduct of all likely perpetrators.

Meanwhile, there is no territorial jurisdiction at the International Criminal Court (ICC) for the situation in Yemen, as Yemen is not a State Party to the Rome Statute of the ICC, nor are other primary states directly involved in the conflict.

This accountability gap has been compounded by a perpetual lack of political will, particularly among members of the UN Security Council (UNSC), to address impunity in Yemen. A referral by the Council to the ICC would be a way to facilitate jurisdiction over likely war crimes and crimes against humanity. Despite numerous recommendations from the GEE, the UNSC has not demonstrated any willingness or ability to refer the situation in Yemen to the ICC.

The UNSC has been reticent to use other tools at its disposal that could mitigate or prevent atrocity crimes in Yemen, and is ultimately failing to uphold its responsibility to protect the people of Yemen. The UNSC-mandated Panel of Experts on Yemen called upon the Council in February 2021 to have “a focused discussion on the issue of accountability” for violations and abuses but this has yet to take place. Despite explicit calls from the GEE and civil society, the UNSC has been unable or unwilling to expand the list of persons subject to sanctions to include all parties responsible for international law violations. Perhaps most tellingly, the UNSC has not passed a single substantive resolution on the conflict since April 2015.

Imperative that UNGA acts to protect the people of Yemen

Expressing “deep regret” at the HRC’s failure to renew the GEE’s mandate, 37 countries delivered a joint statement to the UNGA urging member states to “use all opportunities within the UN-system to assess facts on the ground in an impartial manner, and work towards accountability.”

Similar recommendations for accountability have already been widely made. The UNSC-mandated Panel of Experts recommended in their report earlier this year that member states “consider exploring mechanisms of accountability to secure justice and redress for victims.” The GEE in both its 2020 and 2021 reports called for the “establishment of an international criminal justice investigative body that could… develop further specific criminal justice related files.”

The time to take such steps is now – and the UNGA’s plenary presents an immediate procedural opportunity. On 2 December more than 60 civil society organizations, including the Global Centre for the Responsibility to Protect, launched a joint appeal calling on the UNGA to establish a new accountability mechanism for Yemen.

Though challenges abound, UN member states have garnered the requisite political will to overcome them before, particularly in establishing the International, Impartial and Independent Mechanism for Syria (IIIM) and the Independent Investigative Mechanism for Myanmar (IIMM). Both mechanisms are mandated to collect and preserve evidence of violations of international law as well as to prepare files for criminal proceedings in accordance with international legal standards. The creation of these mechanisms demonstrate that practical, political or jurisdictional challenges will not prevent the international community from paving the way towards accountability and justice for innocent victims of atrocities. The case of Syria in particular demonstrates that the UNGA has the capacity to effectively seize upon its mandate in the face of other UN bodies’ failures to adequately respond to needs for justice and accountability.

It is long past due for the international community to garner similar political will and establish a new accountability mechanism for Yemen. The UNGA can and should act by establishing a new independent and impartial body to both investigate and publicly report on violations and abuses in Yemen, as well as gather and preserve evidence and prepare cases for potential future judicial proceedings. This dual-function mechanism would facilitate accountability processes and lay the groundwork for effective redress for victims while also keeping the international community informed of ongoing violations and abuses in Yemen. A criminally-focused element would complement and actively cooperate with the public reporting mandate. It would also mitigate any potential loss of vital evidence, as the standard of proof required for criminal proceedings is more specific and includes additional formalities, such as chain of custody, which are beyond the requirements for documenting human rights violations.

The civil society joint appeal emphasizes that, “the people of Yemen need justice. And justice begins with investigations and accountability.” Establishing a new mechanism for accountability is not only a clear way for the international community to uphold its responsibility to protect populations in Yemen, but will also help bring an end to the pervasive impunity that fuels the ongoing humanitarian catastrophe.