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U.N. Panel of Experts Finds “Widespread Violations” of International Law in Yemen

All parties to the war in Yemen, including the Saudi-led coalition, the Yemeni government, and the Houthi-Saleh forces, are implicated in “widespread violations” of international law, according to a new and damning report from a panel of independent U.N. Security Council-mandated experts. The panel paints a picture of enormous civilian suffering, military operations with little prospect of outright victory, and stalled peace negotiations. According to U.N. estimates, more than 7,000 people have been killed, and 43,000 injured, in the conflict.

The report is yet another wake-up call to those countries involved in providing significant support to the Saudi-led coalition—which comes in the form of arms, intelligence, refueling of airplanes, and other logistical and operational support—to stop contributing to this catastrophic war. This includes the United States.

The third annual report from the panel covers a lot of ground, surveying events from a political, economic, humanitarian, and legal perspective. Here, we’ll focus on the key conclusions of the report, with a closer examination of its findings in relation to the Saudi-led coalition’s air campaign. We then look at the implications of the report’s analysis for those countries supporting the coalition, before reflecting on the panel’s recommendations and the political dynamics at the international level that are blocking accountability. 

The U.N. Panel’s Key Findings

 The report contains a number of very important findings, which are the results of detailed, multi-disciplinary investigations that are thoroughly documented in the report and its annexes. The Panel is devastating in its assessment of the conduct of the parties to the conflict.

The Saudi-led coalition’s air campaign comes under particular scrutiny. Its violations are “sufficiently widespread to reflect either an ineffective targeting process or a broader policy of attrition against civilian infrastructure.” Officials and security forces affiliated with the Yemeni government or the Houthis, and their allies, have also committed “widespread and systematic violations of international humanitarian law, international human rights law and human rights norms.”

As outlined in the report, Yemen is plunging toward an “impending humanitarian catastrophe.” This is being accelerated by the obstruction to humanitarian assistance by all parties to the conflict, and the transfer of the Central Bank to Aden by the Yemeni government, which has “significantly reduced the provision of material and services that are indispensable to the survival of civilians.” Restrictions on access of commercial flights to the international airport in Sana’a compound these effects. The Saudi-led coalition imposed these restrictions in August, which, the Panel explains, left more than 6,500 people unable to access medical care. These restrictions are still in place.

And to what end? After nearly two years of war, the U.N. expert panel notes that “an outright military victory by any one side is no longer a realistic possibility in the near term.” It further explains that the air campaign, “while devastating to Yemeni infrastructure and civilians, has failed to dent the political will of the Houthi-Saleh alliance to continue the conflict.” For a year, the “military front lines have remained largely the same,” notwithstanding “the near-constant clashes and casualties.”

The Saudi-led Air Campaign

 The U.N. experts carried out detailed investigations into 10 cases of airstrikes by the Saudi-led coalition. The scale of civilian harm resulting from these ten cases is appalling. Their findings indicate that—in just those 10 airstrikes—at least 292 civilians were killed, including at least 100 women and children, and at least 783 injured. The strikes also destroyed three residential buildings, three civilian industrial factory complexes, a hospital, and a marketplace. The panel considered that, for all of the 10 strikes it investigated, “it [is] almost certain that the coalition did not meet international humanitarian law requirements of proportionality and precautions in attack,” and that “some of the attacks may amount to war crimes.”

The report includes four detailed case studies set out in the appendices. These are:

  • a strike on a market in March 2016 that resulted in 116 civilians killed and more than 40 injured,
  • a strike that destroyed a civilian home in May 2016, resulting in six civilians killed, and three injured,
  • an attack that severely damaged a Medecins Sans Frontieres (MSF, or Doctors Without Borders) hospital in August 2016, resulting in 19 civilian deaths, and 24 injured, and
  • the notorious October 2016 coalition airstrike on the Sana’a community hall funeral using a S.-manufactured high-explosive aircraft bomb. At least 132 civilians were killed, and 695 injured, including 24 children.

The panel’s conclusions regarding the October funeral hall attack are worth exploring in more detail. Victims of the funeral attack were unable to be evacuated due to the coalition’s restrictions on access to Sana’a airport. Only after international pressure, and one week after the attack, did the coalition allow planes to evacuate 115 of those who were injured to Oman for treatment.

The panel states that it is “unconvinced” that the “international humanitarian law requirements relating to proportionality were met,” and that, if any precautionary measures were taken, as required by international law, they were “largely inadequate and ineffective.” It also condemns the second “double-tap” airstrike on the funeral, which occurred minutes after the first, as a clear violation of the coalition’s “obligations in respect of persons hors de combat and the wounded.” Importantly, the report emphasizes that even if it can only be said that “an individual officer within the coalition acted negligently,” “coalition forces are still responsible for international humanitarian law violations.” (The report cites Ryan Goodman and Alex Whiting’s Just Security article in support of this proposition.)

Implications for U.S., U.K, and other State Assistance to the Saudi-Led Coalition

The panel’s report cannot be easily dismissed. The Security Council mandated-panel includes highly detailed annexes, which set out its conclusions, the evidence it obtained in relation to each investigation, and the methodology it used to carry out the investigations. These findings further support the growing and sustained concerns of violations of international law by all parties to the conflict, as highlighted by the U.N. human rights office, and independent human rights and humanitarian groups for some time. For example, it has previously been reported that the Saudi-led coalition—whose intervention in Yemen has been legally and politically controversial from the beginning—used banned cluster munitions and bombs manufactured in Brazil, the US, and the UK, and destroyed four MSF hospitals, reportedly without distinction. Allegations of violations by the Saudi-led coalition continue, with Human Rights Watch recently reporting on a coalition airstrike resulting in the deaths of civilians near a school.

There are important implications for those countries providing support to the Saudi-led coalition, particularly in light of reports that President Donald Trump plans to approve weapons sales to Saudi Arabia that were blocked by his predecessor. As has been widely reported, and is even the subject of court proceedings in the UK, the US, UK, France, and a number of other countries, have continued to provide support to the Saudi-led coalition in the face of continued allegations of violations of international law by the coalition.

Ryan Goodman, Miles Jackson and Harriet Moynihan have previously set out the framework that countries should use when assessing support to the Saudi-led coalition. International law requires that, to hold a state responsible for violations by a state it is assisting:

1) the assisting state provides assistance that contributes to the commission of a wrongful act,

2) that the assisting state provides assistance with knowledge that the assistance may be used to commit a wrongful act, and

3) the wrongful act or violation committed by the recipient state would also be wrongful if the assisting state directly engaged in that conduct.

While this is a forward-looking test, analysis of past behavior is a guide as to what may happen in the future. Importantly, as highlighted in a Chatham House report on this issue, assisting states “should not be able to deny their responsibility for assistance in situations in which internationally wrongful acts are manifestly being committed,” which is now clearly the case in Yemen.

In addition, there is the possibility of individual criminal liability. As Ryan Goodman has previously highlighted, assisting states should be especially wary of providing support where war crimes are alleged, as responsibility may be established “even absent any intent or purpose to promote the crimes.”

In this regard, the extremely detailed panel report, and its devastating findings that violations by the Saudi-led coalition “may amount to war crimes” and are “sufficiently widespread to reflect either an ineffective targeting process or a broader policy of attrition against civilian infrastructure,” make it very difficult for countries supporting the coalition to continues to argue that they are unaware that their support significantly contributes to these violations. The US, UK, France, and others, should be mindful that they could potentially be responsible for multiple violations of international humanitarian law, through their own direct or indirect support of the Saudi-led coalition.

Moreover, those States should note the panel’s explicit finding that there is no “realistic possibility” of a “military solution,” as the military course of the conflict has devolved to comprise “several smaller wars with local commanders pursuing their own agendas.” The report concludes that al-Qaeda in the Arabian Peninsula (AQAP) and the Islamic State affiliate in Yemen, “are actively exploiting the changing political environment and governance vacuums.” In other words, continued military assistance to the coalition is only fueling war and further instability in Yemen, and allowing terrorist groups to flourish. 

Panel Recommendations and the Failure of the International Community to Act

The report does not provide new recommendations, but rather refers to the recommendations in its 2015 report (S/2016/73) and its 2016 midterm update to the sanctions committee (which is not public). This includes a recommendation that the Security Council

“consider establishing an international commission of inquiry to investigate reports of violations of international humanitarian law and human rights law in Yemen by all parties and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable.”

To date the Security Council has not taken serious steps to implement this, or other recommendations.

Previous calls to establish an independent international human rights inquiry by the United Nations High Commissioner for Human Rights and human rights groups have been obstructed by powerful states. Saudi Arabia and allied countries, in particular the US and the UK, have repeatedly used their positions on the Human Rights Council to block those attempts. Now they are applying a similar approach at the Security Council—by putting pressure on the Council not to discuss the demand for an international commission of inquiry. This case is one of wider political dynamics at the Security Council, where pressure by powerful states guts efforts at accountability and impedes the Council from carrying out its duties in an impartial and effective manner.

The latest report of the Panel of Experts—appointed, as they were, by the Council itself—is another signal to those countries that they are enabling violations of international law and perpetuating a humanitarian crisis. In March, the Security Council is expected to meet to consider the report. Then, it will have the chance to correct its previous failings by taking concrete action to implement the panel’s recommendations. Will those countries allied with the Saudi-led coalition heed the panel’s powerful warning, or continue to collaborate in Yemen’s destruction?

Image: UN Photo/Rick Bajornas

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About the Authors

Head of the New York Office - Sana’a Center for Strategic Studies (SCSS), Fellow-in-Residence at Columbia Law School Human Rights Institute Follow him on Twitter (@WaleedAlhariri).

Lecturer-in-Law at Columbia Law School, Director of the Counterterrorism, Armed Conflict and Human Rights Project at Columbia Law School's Human Rights Institute Follow him on Twitter (@apmoorehead).