Since March 2015, when the U.S.-backed Saudi-led coalition began its campaign to reinstall ousted Yemeni President Abdu Rabbu Mansour Hadi, it has indiscriminately bombed dozens of residential areas, marketplaces, hospitals, and schools. In October of last year, in the deadliest assaults yet, forces struck a funeral in Sanaa and killed more than 140 civilians. The attack came just ten days after failed efforts by the UN Human Rights Council (HRC) to set up an international body to investigative atrocities in Yemen.
The death toll in Yemen has now reached an estimated 4,500 civilians, and representatives in Geneva are again turning their attention to the crisis. At an ongoing session this week, the HRC will provide an update on Yemen—the latest since its last report in September. But as an inter-governmental body comprising 47 countries, many of which have poor human rights records, the HRC is often paralyzed by infighting, leading to ineffective responses to regional crises.
“It is always difficult to monitor human rights situations,” said one Western diplomat who spent several years negotiating at the HRC and asked not to be named. “There is a lot of resistance in the [HRC] room every day, regardless of the specific country in question, because many countries fear they may be next. They don’t want an automatic procedure of monitoring, and they add all kinds of legal or philosophical arguments to that like ‘the North is monitoring the South’ or ‘we need to cooperate instead of criticizing each other.’”
This is especially true in a case like Yemen, which serves as the front for a proxy war between arch-rivals Iran and Saudi Arabia. An investigation would not only implicate Riyadh, but also its backers, such as Washington, in war crimes and violations of international humanitarian law. It is no wonder then that while Saudi Arabia wages a war over Yemen’s skies, it has also waged a diplomatic campaign to thwart efforts to set up an international inquiry. A year into the conflict, in September 2015, a frustrated and exhausted UN High Commissioner for Human Rights, Zeid bin Ra’ad al-Hussein from Jordan, opened the 30th session of the council with a call for “an independent and comprehensive body” to examine human rights violations in Yemen.
The Netherlands followed suit with a draft resolution mandating a UN mission “to collect and conserve information in order to establish the facts and circumstances of such violations.” The proposal was met with little support from major Western nations. Meanwhile, Saudi Arabia rallied together a bloc of Arab, Gulf, and African countries that openly opposed the inquiry. This bloc put forward its own draft, echoing a decree from the exiled Yemeni government, that called for a national, not international, investigation. Although the U.S. delegation eventually voiced support for the Dutch resolution, its preferred goal was a consensus—Washington wanted Yemen and Saudi Arabia on board, diplomats close to the 2015 discussion told me.
“A consensus resolution is much more powerful,” said one Western diplomat, speaking under conditions of anonymity because of the sensitivity of the matter. “It means the international community is speaking with one voice.”
Another delegate, who has attended several HRC sessions and was a key player in the negotiations, argued that consensus was a form of hedging. “A consensus resolution sounds attractive because no one gets exposed for specific views,” he said. “But it can also be a positive force because the text has to take into account considerations from all sides.”
For the United States, a consensus would guard against a lose-lose position in which it would have to either support Saudi Arabia and face international condemnation or support the Dutch and endanger its relationship with a vital trading partner and ally in the Middle East. (Riyadh’s support was necessary in getting a ceasefire in Syria, as then Secretary of State John Kerry was attempting at the time.)
Accepting the Dutch proposal might also have implicated the United States in any future investigation, given its logistical, intelligence, and arms support for the Saudi-led coalition. Further complicating matters was the concern by some delegations that the HRC’s actions could have been interpreted as tacit support for the Houthi rebels, who had deposed the internationally-recognized president in September 2014, sparking a civil war the following year. “Nobody wanted to send the message that the council was somehow condemning the side that was on the right side politically,” explained one official.
In the end, with ambiguous support from Washington, unrelenting resistance from Saudi Arabia, and overwhelming pressure to reach a consensus, the Netherlands had no option but to withdraw its proposal. To the great disappointment of the UN human rights office (OHCHR) and international watchdog groups, Western governments accepted a resolution based on the Saudi text, which asked Yemen’s National Commission of Inquiry to examine the violations in a war to which it is a party. The OHCHR’s role was limited to providing “technical assistance” and conducting an assessment at next September’s session.
In an October statement following the decision, Philippe Dam, who was the Geneva deputy director at Human Rights Watch, expressed his dismay at France, the United States, and the United Kingdom. “[They] appear to have capitulated to Saudi Arabia with little or no fight,” he wrote, “astoundingly allowing the very country responsible for serious violations in Yemen to write the resolution and protect itself from scrutiny.”
Some delegates felt differently. “We should always look at the council’s work as not what is produced from merely a particular session but kind of with a longer view,” said a key delegate in the discussions. “So let’s make sure we’re setting up things so we have another opportunity at a later session to strengthen them…an approach that is shoved down the throats of the Yemenis would not have been helpful either.”
Since the adoption of that first resolution in October 2015, the conflict has intensified and the humanitarian crisis in Yemen has worsened. The UN rights official told me that Yemen’s domestic inquiry did not meet international standards. Its investigative body was unable to access large parts of the country where violations had occurred, could not obtain Houthi cooperation, failed to document several major coalition strikes, and submitted a report largely focused on violations by the other side. The Yemeni body, staffed with local lawyers and judges with no international investigative expertise, also had a contentious relationship with the UN office, which was offering its support.
In April 2016, in the wake of a coalition assault on a crowded village market that killed 106 civilians, the OHCHR issued a 36-page report that documented violations by all sides but held coalition attacks responsible for most of the casualties. In several cases, the UN was “unable to identify the presence of possible military objectives.” A few months later, in his opening address to the council at the September 2016 session, the high commissioner once again called for an independent international inquiry. “The national investigation effort has not been able to provide the impartial and wide-ranging inquiry that is required by serious allegations of violations and abuse,” he said.
In response the Netherlands submitted a draft resolution that mandated an OHCHR mission to Yemen. Once again, Saudi Arabia lobbied rigorously against this proposition. But this time around, Washington was more ready to include an international component to the final resolution, according to delegates engaged in the 2016 discussions. It saw that the domestic mechanism had not worked. But as a U.S. delegate explained to me, Washington also wanted to give the Yemen commission a chance. The United States sought to arrive at a compromise, and engaged in 12 hours of ambassador-level negotiations. (For perspective, a diplomat told me that UN ambassadors usually meet only “a couple of times for 20 minutes” at a time on most resolutions.) After some amendments were made on the Saudi text, to reach a consensus, the Dutch withdrew theirs.
The final resolution, however, was again based on the text that Saudi Arabia had put forth, and was very similar to the one from the year before. There were some slight improvements, however; namely, mandates for additional experts who would work through the OHCHR Yemen office to conduct an independent inquiry and “work closely” with the Yemeni commission “to establish the facts and circumstances of any violations and abuse.” These experts would also provide the national commission with “technical assistance.” This meant that the resolution, although falling short of an international inquiry, would at least enable the OHCHR to continue its own investigation.
“We saw this as a long-term structural strengthening of the investigative capacity of the OHCHR office on the ground,” said Rochus Pronk, one of the lead negotiators on the Dutch delegation. “This is why we felt this was a defendable compromise. There is no way that we could have gotten a better compromise…If we had gone for a vote on our resolution we would have lost. You have to look at realistically what you can achieve.” John Fisher, Geneva director of Human Rights Watch, also noted the improvement. “Unlike a year ago,” he said, “the resolution mandated the office to do its own inquiry, and report back to council.”
Not all human rights organizations saw the resolution as positively, however. The UN rights office, for one, felt that it was not a major improvement from the last resolution. “We have been monitoring violations since 2012 through our office in Sanaa,” representatives from the office told me. “The 2016 resolution basically just gives us more staff. Our major concern, which goes beyond Yemen and this resolution, is the establishment of a precedent: that the OHCHR in the future might have to support weak national commissions, and give legitimacy to these bodies.”
In a statement to the UN office, the Houthis said that they would cooperate with an international investigation, but not with the Yemeni commission. Neither would they honor the new resolution, which authorizes sending experts to Yemen. As a result, the Houthis have not granted visas to the eight additional staff members that the UN human rights office wants to send to Sanaa. And because the Yemeni commission has not yet produced a report for this year, the OHCHR has been unable to assess its performance.
Since the 2016 resolution, there has been no meaningful change in the conduct of the coalition.
And as a Western diplomat explained to me, we shouldn’t be holding our breath. “The international community intentionally created the HRC without super powerful tools,” he said. "The super powerful tools are given to the Security Council. When you are in a war situation like Syria, or Yemen, that’s not something that the HRC will be able to stop. It wasn’t intended to do that. It was intended to investigate.” But his hope is that providing an additional layer of scrutiny will give violators pause. Whether it will lead to an actual decrease in transgressions, however, is a gamble. “Sometimes it works and sometimes it doesn’t,” he said.