By Alondra Becerra, Trinity Anthony, and Ana Marija Apostoloska, members of the Yemen Action Committee
Content Warning: This blog contains information about violence which may be triggering to survivors.
To protect populations from some of the most serious crimes — genocide, crimes against humanity, and war crimes — there is a responsibility for everyone to ask what can be done. Yet, such crimes persist around the globe. Even though accountability is the expectation when crimes of this kind are committed, there are still victims who never receive this. The sooner we invest in combating this issue, the sooner we can prevent societies from collapsing and descending into violence. To know how to stop these crimes, we must understand what they are. By “atrocity crimes,” we refer to three internationally recognized crimes: genocide, crimes against humanity, and war crimes. It is generally considered that atrocity crimes are the most heinous crimes committed against humanity. As well as the moral and ethical responsibility that each of us has to protect communities at the risk of atrocity crimes, we have well-established legal obligations as well. Specifically, these obligations are found in the “Convention on the Prevention and Punishment of Genocide, in international human rights law, and customary international law.” Ethnic cleansing is also generally recognized as a type of mass atrocity but is not codified in international law.
In addition, international courts and tribunals have clarified the specific content of these obligations. Ratified treaties and customary law give states responsibility for punishing and eliminating atrocity crimes. According to Article I of the Convention on the Prevention and Punishment of Genocide, the obligations to prevent crimes have become norms of customary international law. This means that they apply to all countries regardless of whether they have ratified the Convention. In light of this provision, preventing violations of international humanitarian law, including war crimes, must be mandatory. The earlier risk factors can be identified, the higher the chances of preventing violations. But as time goes by, prevention becomes increasingly difficult and expensive. By addressing and identifying the motives behind increased violence against a particular group of people, a state or international community will be able to defuse the tension. This event could occur if, for example, the motive for the increase in violence is identified early. Having said that, there are limited options for responding to atrocity crimes that have already occurred. A coercive measure, such as force, may be needed in certain situations if all other methods are unsuccessful. With this understanding, we apply this to the war in Yemen, where war crimes and crimes against humanity are currently being committed.
War Crimes
The Yemen government and members of the Saudi-led coalition against the Houthi rebels are all parties to the Geneva Convention of 1949. Common Article 3 of the Geneva Convention sets standards and regulations that parties armed in a non-international conflict must meet. Yemen is also party to Protocol 2 to the Geneva Convention, which provides further protection to civilians during an armed conflict. During an armed conflict, all parties are to comply with international law, regardless of whether the opposing side is breaching it. Direct attacks on civilians are prohibited. The indiscriminate attack on basic civilian needs and buildings (like hospitals and civilian markets) violates basic human rights. The Houthi rebels have used explosive materials and ammunition on residential areas in Taizz. The Panel of Experts analyzed an attack that killed 27 civilians and found that there was no evidence that the civilians killed had taken part in the hostilities. The Panel concluded that the attacks were indiscriminate because they deliberately targeted civilians with intent to destroy civilian property. The Panel also analyzed the conduct of the Saudi-led coalition. The coalition conducted airstrikes that hit civilian marketplaces and other government buildings. One of the airstrikes analyzed by the Panel resulted in the death of 85 children. These airstrikes violated humanitarian law due to the lack of evidence that the targeted civilians took part in the war. The coalition used precision-guided missiles which means that there was intent to harm civilians and civilian basic needs, which is a violation of the Geneva Convention. It is clear that in the years that fighting has taken place in Yemen there have been war crimes committed, regardless of the fact that actors in the hostilities are parties to the Geneva Convention and other international humanitarian law efforts.
Crimes Against Humanity
Unlike war crimes, there is no comprehensive treaty codifying crimes against humanity. However, according to customary international law, those crimes are considered as jus cogens. This essentially means that all crimes against humanity are considered as peremptory norms of international law, from which no derogation is permitted and which apply to all States.
The most extensive definition of crimes against humanity is given in the Rome Statute of the International Criminal Court (Rome Statute). According to Article 7 of the Rome Statute, “crime against humanity” refers to any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, or gender-based grounds, enforced disappearance of persons, apartheid, or other inhumane acts.
The Rome Statute’s approach to defining the crimes against humanity by enumeration makes these crimes recognizable and distinctive from any other crimes. However, the Rome Statute sets two additional requirements that should be fulfilled for any of the enumerated crimes in Article 7 to reach the threshold of a crime against humanity. According to the Rome Statute, in order to amount to a crime against humanity, the crime should be committed as ‘part of a widespread or systematic attack directed against any civilian population’, and ‘with knowledge of the attack’.
Having in mind all of the above, in order to explore whether the human rights violations occurring in Yemen can amount to crimes against humanity, an assessment should be done on their type and scale. The conflict in Yemen has been categorized as one of the largest humanitarian crises of modern times. According to the Yemen Data Project, around 17,500 civilians have been killed and injured since 2015. The conflict is mainly defined by the military clashes of the Yemeni government supported by the Saudi-led coalition and Iranian-backed Houthi rebels as two main sides of the conflict.
Since the beginning of the conflict in 2014, the United Nations (UN), along with numerous international and Yemen-based organizations, has conducted an admirable work of documenting and dossier-building of the violations conducted against civilians by both sides of the conflict. Many of the documented violations correspond within the definition of crimes against humanity as defined in the Rome Statute. Moreover, the number of documented cases of people who have suffered these kinds of human rights abuses is getting larger by the year, leaving no space for suspicion that both sides of the conflict are committing human rights violations as part of a widespread and systematic attack on the civilian population that is not supporting their cause. The perpetrators of the attacks are usually identified as members of the Saudi-led coalition in support of the internationally recognized Yemeni government or Houthi rebels and associated groups, which establishes a concerning pattern of their behavior towards civilians and confirms the knowledge of the relevant actors who have effective control on the field about the existing human rights violations.
Violations in relation to Article 7(e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law and Article 7(i) enforced disappearance of persons
Human Rights Watch (HRW) has done extensive work documenting violations that can be defined as crimes against humanity in Yemen. According to HRW, the Saudi-led coalition and Houthi rebels have been responsible for arbitrary detention of people, including children, abused detainees and abducted or forcibly disappeared people perceived to be political opponents or security threats.
Similarly, in 2017, Mwatana verified 51 incidents of arbitrary detention and 68 enforced disappearances in territory controlled by the Government of Yemen. Again, those targeted were most often civilians suspected of being political adversaries. Additionally, Mwatana verified 122 incidents of arbitrary detention and 59 incidents of enforced disappearance by Houthi forces between 2015-2017. The Houthi-Saleh forces detained political opponents, mainly those associated with Al-Islah Party, as well as civilians, journalists, academics, human rights advocates, and activists.
An organization named “Mothers of Abductees Association” which consists of mothers, sisters, and daughters of abducted men has organized protests in several cities in Yemen, searching for their missing relatives. In 2019, the association reported 3,478 disappearance cases, at least 128 of those kidnapped have been killed.
Violations in relation to Article 7(a) murder and Article7(f) torture
In 2017, Mwatana verified 52 incidents of torture committed by, among others, Yemeni forces and United Arab Emirates (UAE)-backed Yemeni forces, known as the Security Belt and Hadrami Elite forces. In 14 of these documented incidents, torture led to death. The report documents several methods of torture used by perpetrators including, beatings with batons and metal bars, kicking, burning, and denial of food, and water. Furthermore, Mwatana documented 29 incidents of torture of Yemeni civilians by the Houthi forces. Detainees were accused of supporting or committing espionage, and harsh interrogation practices, such as those mentioned above, were used against them in order to coerce confessions.
Violations in relation to Article 7(g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity
The United Nations Human Rights Council (OHCHR) published a report in 2019 concerning the situation of human rights in Yemen, including violations and abuses since September 2014. The Group of Experts within OHCHR documented a vast number of cases of sexual violence committed against men, women, and children by armed groups participating in the conflict. The victims testified that they experienced different forms of sexual abuses including rapes, gang rapes, and rapes with objects, as well as forced nudity, sexual and verbal assaults, and sexual slavery and servitude. Additionally, interviewed detainees in the report witnessed that they were victims of rape as an interrogation and torture technique.
In such situations, the victims of rape are usually part of the marginalized groups in the Yemeni communities, so they also face social exclusion and even further stigmatization.
Violations in relation to Article 7(d) Deportation or forcible transfer of population and Article 7(h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law
Many minority groups in Yemen, along with other vulnerable groups, such as migrants and refugees, are often facing persecution based on their identity. According to Mwatana, the Baha’i community in Yemen is often subjected to persecution through raids, arrests, arbitrary detention, and enforced disappearance by the Houthis for their religious beliefs and cultural activities. In addition, HRW has also documented a network of smugglers, traffickers, and authorities in Yemen that kidnap, detain and beat Ethiopian migrants and extort them or their families for money upon their arrival. Moreover, the Houthis and forces aligned with the Yemeni government have also detained, abused, and deported migrants. HRW estimates that 260,000 Ethiopians, an average of 10,000 per month, were deported from Saudi Arabia to Ethiopia between May 2017 and March 2019.
Regardless of the indications and evidence of human rights abuses that can amount to a crime against humanity, Yemeni officials are falling short in their attempts to combat the culture of impunity and assure accountability for the perpetrators and justice for the victims.
In 2014, the Government of Yemen accepted the UN recommendations to take measures to combat arbitrary detention and enforced disappearance, prevent acts of torture and ill-treatment, and ensure that allegations of torture and other ill-treatment were investigated and prosecuted. According to the international customary law, crimes against humanity are prohibited and Yemen authorities are obliged to prosecute those responsible for such crimes.
When it comes to the role of the International Criminal Court (ICC) in preventing crimes and sentencing those responsible for atrocities in Yemen, the situation becomes more complicated. The ICC can only act if (i) the accused is a national of a state party, (ii) the incident(s) occurred on the territory of a state party, or (iii) if a non-state party accepts the court’s jurisdiction in relation to a specific crime or situation. However, Yemen is not a member state of the court, nor are key coalition members and supporters, such as Saudi Arabia, the United States, and the United Arab Emirates. This makes the opportunity for victims to receive justice through ICC mechanisms legally impossible.
Nonetheless, since the beginning of the conflict many human rights organizations, lawyers and public defenders have tried to submit initiatives to ICC to investigate the human rights violations occurring in Yemen. In 2021, a group of lawyers in a 212-page written submission argued that the court should exercise jurisdiction on Yemen because some members of the Saudi-led coalition are ICC member states of the Rome Statute. For instance, the lawyers argued that Jordan deployed fighter jets to the coalition, Senegal provided troops, and the Maldives supported it diplomatically, while some of the crimes were committed by mercenaries from Columbia. All of these countries are members of the ICC.
Similarly, in 2019 a group of organizations submitted a Communication to the Office of the Prosecutor (OTP) of ICC on the situation in Yemen. The Communication calls on the ICC to investigate whether arms companies and government ministers and officials, by authorizing and exporting arms to members of the military coalition led by Saudi Arabia and the United Arab Emirates, have contributed to serious violations of international humanitarian law in Yemen that may amount to war crimes. The Communication argues that the economic and political actors involved in the arms trade potentially bear criminal responsibility. The Communication primarily targeted the European weapon manufacturers based in European countries, members of ICC, such as Italy, Germany, the United Kingdom, Spain, and France.
All of these attempts leave potential space for hope that people on the field who have suffered the most terrible crimes will receive their acknowledgment for the harm suffered, and those responsible will be held accountable for committing crimes against humanity and other violations of the international legal order. The existence of such extensive evidence of both war crimes and crimes against humanity also means it is more urgent than ever that we take action to end the violence and protect civilians.