This week, in what the New York Times described as “a U-turn at the United Nations Human Rights Council,” the Netherlands withdrew a proposal for an international investigation into human rights violations committed during the ongoing armed conflict in Yemen. Since March this year, a Saudi-led coalition, with the consent of Yemeni President Abdu Rabbu Mansour Hadi and the logistical and intelligence assistance of the United States, has engaged in military action in Yemen against Houthi forces. Instead of a formal international inquiry, and because of Saudi pressure, a dramatically watered-down UN resolution now “welcom[es]” a national commission of inquiry set up by President Hadi, who fled Yemen in March and has since been in Saudi Arabia.

The failure to mandate an independent UN inquiry is a clear blow to accountability in Yemen — these announcements come the same week that the UN reported that a Saudi strike may have killed up to 135 people, mostly women and children at a wedding. (See here, here, and here for more background on why an international inquiry is needed in this conflict which has entailed alleged abuses by all sides, cost thousands of civilian lives, and significantly undermined basic food, water, education, and housing rights across the country).

Now, the Yemeni government-in-exile and Saudi Arabia are likely to use the creation of the national inquiry as evidence that “something is being done” to respond to the many alleged international law violations. Responsibility to investigate and account for abuse rests first and foremost with national governments, and the international community should encourage states to set-up special inquiries where needed to address serious abuse, and support serious national commissions. But evidence from similar national commissions around the world raises strong concerns that the new Yemen inquiry risks being a whitewash.

This 2008 UN study of national commissions (to which I contributed research) shows that — while they can theoretically hold promise for accountability and can be effective in some circumstances — they too often are set up to fail, or have the effect of whitewashing legal violations because of critical structural flaws. The UN study concluded that they are “frequently used primarily as a way of avoiding meaningful accountability.” The risks of failure are particularly high where a government sets up a commission in the context of an internal armed conflict, as is the case here. It is near-impossible for one party to the conflict (the government) to set up an effective inquiry that can independently (in both practice and perception) investigate alleged violations by both sides.

Once the establishment of a commission has been announced, we often observe that states, in response to criticisms from the international community, use the special inquiry as evidence that they are currently taking action to address abuse and impunity. As the 2008 UN report notes, this can succeed “in defusing domestic or international criticism and preventing strong advocacy by international actors to promote accountability within the State.”

Now that the UN Human Rights Council is “welcoming” President Hadi’s national inquiry, the Council, and particularly the governments who allowed the weakened resolution in response to Saudi pressure, must take responsibility for closely monitoring the national level commission, report on its progress, set clear timelines and expectations for outcomes, and have in place a plan to act should it fail.

It is not difficult to monitor a national commission, and the kinds of issues to watch for are clear. Experience from other commissions shows that the most common kinds of problems undermining effectiveness include that commissions:

  • are announced but never actually implemented, or “operate” for years with no reporting or clear activity;
  • are designed with a mandate that is too limited to deal with the full scope of alleged abuses;
  • are provided insufficient funding, staffing, and other resources;
  • are staffed by individuals who lack relevant experience, competence, and objectivity;
  • lack independence (both formally, and in practice);
  • have no ability to provide witness protection or security to commission staff;
  • lack the power to compel the provision of evidence or to access critical sites;
  • never publicize their results, or the government never responds to or follows-up on the commission’s findings.

Important guidance in the design and conduct of national commissions is contained in the Office of the High Commissioner for Human Rights’ (OHCHR) new Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice (2015), the Lund-London International Human Rights Fact-Finding Guidelines (2009), and the Siracusa Guidelines for International, Regional and National Fact-Finding (2013). These standards provide a baseline for assessing Yemen’s inquiry.

The failure to set up an international inquiry weakened the prospects for accountability. At a minimum, the governments of the Human Rights Council should now monitor the Yemen commission and act quickly if it fails to meet international standards.