During the fifty-fourth session of the United Nations Human Rights Council (HRC54) from September 11 to October 13, 2023, at the Palais des Nations in Geneva, the European Community* continued its notable shift in approach regarding violations in Yemen, marking the second consecutive year without submitting a draft proposal. This departure from the established norm, which historically saw the European Community advocating for the creation of an international mechanism to investigate Yemen, reflects a significant change in strategy from the years of the Yemeni war (2015-2021).

In lieu of the customary proposal, the European Community proactively engaged with the Arab group, presenting two alternative suggestions to be incorporated into the Arab draft resolution submitted to the Council. The first proposal involved the establishment of an international commission of inquiry. In contrast, the second assigned the High Commissioner for Human Rights the task of preparing an annual report on the human rights situation in Yemen. Regrettably, both proposals were met with rejection by the "Arab Group"*.

The Council officially endorsed the draft Arab resolution, endorsing the backing of the National Committee tasked with investigating human rights violations in Yemen. Furthermore, the resolution emphasised the High Commissioner's ongoing provision of technical and logistical support to this committee.

To comprehend the shift in the European stance regarding violations in Yemen, it is essential to recognise that the European position has traversed two distinct trajectories. The initial path involved early efforts from 2015 to 2021 to internationalise the issue of violations. This was pursued by advocating for creating an international mechanism dedicated to investigating crimes and violations in Yemen. The second path witnessed a departure from active involvement, with Europe opting for a more restrained approach. This shift occurred in exchange for addressing the pressing energy crisis resulting from the 2022-2023 Russian-Ukrainian war, signifying a recalibration of priorities in response to evolving global dynamics.

Early European Initiatives to Internationalise Human Rights Concerns

In response to the announcement of military intervention in Yemen by the Arab Coalition to Support Legitimacy in March 2015, the Netherlands, acting on behalf of the European Community, took a significant step during the 30th session of the Human Rights Council in September 2015. They advocated for the imperative need to establish an international mechanism to investigate alleged war crimes committed in Yemen. Unfortunately, this call for internationalisation did not garner success.

Simultaneously, aligning with broader European efforts to shift from national to international jurisdiction, former Yemeni President Abd-Rabbu Mansour Hadi issued Republican Decree No. 50. This decree reconstituted the "National Committee to Investigate Allegations of Human Rights Violations ^[1]," originally formed in 2012 under Republican Decree No. 140. The committee underwent three amendments in 2015, 2016, and 2016 through amended Republican Decisions No. 13, 66, and 97.

Endowed with the responsibility of monitoring and investigation, the committee saw alternating leadership between Judge Qaher Mustafa and Judge Ahmed Al-Muflihi. Notably, during the 33rd session of the Human Rights Council in September 2016 in Geneva, the Netherlands submitted a draft resolution. This resolution proposed the establishment of a fact-finding committee in Yemen, dating back to March 2015, coinciding with the commencement of operations by the Arab coalition supporting legitimacy in Yemen. However, after extensive consultations with the group and prior to putting it to a vote, the Netherlands withdrew the draft resolution.

The European position in favour of the draft resolution presented to the Council rested on the assertion that war crimes had taken place in Yemen. Additionally, it argued that the National Committee lacked independence and was ineffective in ensuring accountability. Contrastingly, the Arab group's opposition to establishing an international investigation mechanism centred on two key points. Firstly, they contended that the urgent call for accountability amid the ongoing conflict amounted to a form of coercion. Secondly, there were apprehensions that the intensified efforts were aimed at influencing an end to Arab intervention that supports legitimacy and potentially leaves the Yemeni government vulnerable to the Houthis.

Moreover, the strained relations between the two groups had been evolving since the issuance of a joint statement outlining understandings about the nuclear agreement with Iran on April 2, 2015—prematurely released before the agreement was formally reached on July 14 of the same year. The Europeans played a significant role in these developments.

Despite lacking representation in the Human Rights Council, Yemen's refusal stems from a staunch commitment to national sovereignty. The ongoing struggle between the sovereignty of nations and efforts to establish judicial controls beyond the confines of international law and its branches remains a persistent source of controversy and debate. This contention is a recurring theme among international jurists and states across various United Nations bodies.

In the course of three consecutive years, during the 36th session of the Council in September 2017, the Netherlands presented a draft resolution to establish an international mechanism for investigating Yemen. Simultaneously, the Arab Group proposed a counter-resolution known as the "Arab Draft Resolution." This alternative resolution called for the empowerment and logistical support of the "National Investigation Committee," aiming to align its operations with international standards.

Given the awareness of both groups of countries regarding the difficulty of resolving the confrontation in the Council, a unified draft resolution has been reached. This resolution encompasses the two ultimate goals outlined in the content of the respective resolutions: establishing an international mechanism for investigation and supporting the national mechanism.

It has been mutually agreed to constitute a team of experts in lieu of an investigation committee. The investigation is slated to commence in the year 2014, marking the onset of the Houthi invasion of the capital, Sana’a, rather than from the year 2015, which signifies the commencement of the coalition's military operations. Furthermore, the decision will be incorporated under the tenth item designated for providing technical support to countries. The second item is dedicated to investigating violations committed by states.

The Council unanimously voted to endorse the National Commission of Inquiry. Following the session, the Human Rights Council issued Resolution No. A/HRC/RES/36/31, outlining the establishment of a team of distinguished international and regional experts for a one-year term, subject to renewal.

This team is mandated to "monitor and report on the human rights situation, conduct a comprehensive study of all alleged violations and breaches of international human rights and other realms of international law committed by all parties involved in the conflict since September 2014." The objective is to ascertain the facts and circumstances surrounding these violations, identify those responsible if feasible, and make general recommendations for enhancing the respect and implementation of human rights. Additionally, the team is tasked with providing guidance on access to justice, accountability, reconciliation, and healing. ^[2]In paragraph 17 of the final statement, the Council further urged the High Commission to continue furnishing technical capacity building, technical assistance, advice, and legal support to facilitate the National Commission of Inquiry in completing its investigative work into allegations of violations and abuses throughout Yemen.

On December 4, 2017, the United Nations High Commissioner for Human Rights, Prince Raad bin Al Hussein, established a group of experts. The team is chaired by Kamal Jendoubi (Tunisia) and comprises two members: Charles Garraway (United Kingdom) and Melissa Parkey (Australia). ^[3]

Escalation of Confrontation

Initially, there was anticipation that the consensus reached between the two groups (European-Arab) in the Human Rights Council would foster constructive collaboration between the international mandate represented by the Group of Eminent Experts and the Yemeni national mandate represented by the National Committee to Investigate Violations. Unfortunately, the insistence of the European side on pursuing a specific approach in handling the violations file hindered this cooperation.

The team's decision to establish its headquarters in the Lebanese capital, Beirut, emerged as the primary catalyst for the breakdown of trust between the two groups. This move was perceived by the Yemeni side and the Arab coalition countries as indicative of concealed intentions toward legitimacy and the Arab coalition. The rationale behind this scepticism was grounded in the assertion that Beirut is under the influence of Hezbollah and Iran, raising concerns about the potential impact on the team's impartiality and objectivity in its work. ^[4]

The team was initially expected to present a comprehensive written report to the Commission by the 39th session of the Council, in adherence to the decision forming the team. This would be followed by an interactive dialogue for deliberation and discussion among Council members before issuing the report. However, the United Nations High Commissioner for Human Rights surprised the countries of the Arab Group by releasing a report on August 28, 2018, which encapsulated the team's findings, which comprised prominent international and regional experts.

In this report, the High Commissioner accused the governments of Yemen, Saudi Arabia, and the UAE of being "responsible for violations of international human rights that may amount to war crimes." ^[5]The document asserted that the sea and air "blockade" imposed on Yemen by the Arab coalition constitutes a violation of international human rights law and international humanitarian law. ^[6] It further contended that these actions, under the condition of intent, might amount to international crimes. The report also accused the "de facto authority forces" of committing international human rights violations potentially constituting war crimes ^[7]. It accused all "parties to the conflict in Yemen" of widespread violations of international humanitarian law. ^[8] Moreover, the report expressed reservations about the nature of the proportionality assessments adopted by the coalition, questioned the effectiveness of these assessments, and raised concerns about the extent to which the principle of distinction is respected in identifying and selecting military targets. ^[9]It accused the National Commission of Investigating Allegations of Human Rights Violations of lacking independence.^[10] Additionally, the report implicated Emirati officials, civil servants, Yemeni government officials, and members of the Security Belt Forces in crimes of rape and sexual violence against detainees and migrants in prisons affiliated with the coalition, the government, and the Security Belt Forces in Aden. ^[11]

Following the announcement of the report, an immediate response was issued by the government of the Republic of Yemen through a statement from the Ministry of Human Rights. The statement conveyed the government's shock at the report's content, asserting that it lacks accuracy and impartiality. The government contended that the team had surpassed the legal mandate granted to it by the Human Rights Council. The statement affirmed the government's commitment to study and thoroughly respond to the report through official mechanisms. ^[12]

The Arab Coalition also issued a statement asserting that the report contained fallacies. The statement highlighted perceived shortcomings, including a failure to facilitate the arrival of humanitarian aid, overlooking the root causes of the conflict, neglecting the coalition's responses to allegations in misleading reports, and disregarding Iran's documented role in supporting the Houthi militias—a fact acknowledged in the Security Council. ^[13]

Dr Anwar Gargash, the Emirati Minister of Foreign Affairs at the time (currently the diplomatic advisor to the Emirati president), took to his Twitter account. In a tweet, he emphasised the need to review and respond to the merits of the expert's report. He urged a careful examination of the report's stance on Houthi atrocities, their crimes, and their targeting of civilians. ^[14]

Subsequently, Yemen declared a boycott of the team, barring its entry into its territory. Examining the contentious report, virtually every paragraph prompts commentary. This encompasses the report's conceptual framework, the depiction of the war's context, the methodology for selecting facts, the mechanisms for collecting and verifying information, and the conclusions and recommendations.

For instance, the preamble to the decision forming the team, which serves as the legal foundation for the Council's decision, explicitly emphasised the imperative to uphold Yemen's unity, sovereignty, and territorial integrity. This directive was aligned with pertinent international resolutions, notably Resolution 2216 issued by the Security Council, the Gulf Initiative, and the outcomes of the National Dialogue. ^[15]

Evidently, these decisions would serve as the framework for comprehending the context of the conflict in Yemen. However, as reflected in the report, the team adopted its own perspective. Notably, the team described Abdul-Malik al-Houthi as the leader of a coup group in Security Council Resolution 2216, "the leader of the revolution. ^[16] " Furthermore, the team characterised the government forces' advance towards Hodeidah Governorate as "aggression." ^[17] The report also extended the conflict narrative to assert the absence of the legal and moral identity of the Yemeni state across various facets.

In the section addressing the targeting of civilians, the report dedicated 18 paragraphs to discussing victims, with a significant emphasis on victims of coalition air strikes—12 paragraphs in total. ^[18] The team claimed to have investigated 57 air strikes resulting in civilian casualties. Two paragraphs in the report accused all parties of engaging in mutual bombardment in Taiz, leading to civilian deaths. ^[19] Remarkably, only two paragraphs were dedicated to accusing the Houthis and forces loyal to former President Ali Abdullah Saleh of using artillery and mortar shells in Softail Hill in Taiz. ^[20]

Notably, the team omitted to address Houthi crimes against civilians in other governorates, such as the bombing of a boat carrying families in Al-Tawahi, Aden, resulting in the death of 45 civilians and injuries to 67 others. Numerous incidents leading to the loss of civilian lives, including women and children, were not covered.

Furthermore, the team overlooked addressing issues such as home bombings, mine victims, and the Houthis' alleged detention, torture, and rape of girls and women in Sana’a. These omissions stand in contrast to detailed reports by the UN Security Council Group of Experts on Yemen, which directly accused individuals and security services of responsibility for these violations.

Despite the technical imbalances and significant flaws highlighted in the report, coupled with solid objections from Yemen, Saudi Arabia, and the United Arab Emirates, and the refusal of the Arab group countries in the Council to extend the team, the European Group managed to secure an extension through mobilising votes in the Council. This extension, now under the second item instead of the tenth, spans three consecutive years and was achieved by a narrow margin of votes.

During this extended period, the team issued three additional reports. In these reports, attempts were made to mitigate perceived bias by addressing Houthi violations, particularly those related to child recruitment, sexual offences against women in detention centres, the planting of mines, targeting civilians, and the siege of Taiz. However, trust between the two groups had already collapsed by this point.

During the 48th session in Geneva in September 2021, the Human Rights Council rejected the draft resolution to extend the group of eminent international experts on violations in Yemen. The resolution, submitted by the Netherlands under the second item, saw 21 countries out of 47 member states voting "no" to the extension. In comparison, 18 countries voted "yes," and seven countries abstained from voting. ^[21]

It can be asserted that the team's violations of the legal basis of the decision, its exceeding of the granted mandate, the demonstrated modest technical proficiency, evident bias, and the perceived European duplicity in handling the violations file collectively led to the conviction among member states of the Council. This conviction centred around the belief in the political exploitation of the violations file and its adverse impact on the potential for constructive accountability in Yemen. Ultimately, this sentiment resulted in the team's refusal to grant an extension.

Double Standards

It is crucial to note that the European stance on violations in Yemen is intricately tied to the political position on the Yemeni war and the local and regional actors involved.

Examining the political position of European Union countries during Operation Decisive Storm, it becomes evident that France and Britain, the latter being a member at the time, declared their support for the transitional President Abd Rabbuh Mansur Hadi and endorsed the coalition's military operations in Yemen. They acknowledged Saudi Arabia's right to defend itself. In contrast, the remaining Union countries expressed opposition to the war. It can be argued that the reliance of other Union countries on the human rights issue was a distinctly political move. It is rare to witness calls for international investigation committees in the initial days of conflicts and wars, whether internal or international. Notably, an international fact-finding committee was formed only once in Gaza in the year 2000, despite the longstanding Palestinian-Israeli conflict spanning nearly 70 years.

The International Commission on Human Rights, which underwent transformation under former UN Secretary-General Kofi Annan and evolved into the Human Rights Council, refrained from convening a single meeting during the US-British invasion of Iraq. Furthermore, it did not establish an investigation committee despite the devastating toll of more than a million Iraqi lives.

In parallel to the European insistence on imposing an international mandate to investigate Yemen, these countries pursued a markedly different policy in Syria. Here, they prioritised security concerns over rights. This policy can be succinctly summarised as overlooking Assad's crimes under the rationale that his survival curbs the growth of terrorist groups and diminishes the influx of Syrians towards Europe.

Returning to the dual policies of Europe towards violations of international human rights law and international humanitarian law, which shift from one country to another based on the interests and strategic approaches of Union countries determined by security and economic considerations, this duality is most pronounced in their approach to the Yemeni and Libyan crises. In Libya, the Europeans and their American allies anticipated potential war crimes by forces loyal to former President Muammar Gaddafi upon reaching the city of Benghazi. Consequently, they decided to intervene militarily, framing it as a "humanitarian intervention."

Meanwhile, the Houthis continued their advance, progressively invading Yemeni cities, starting with the governorates of Hajjah, and Amran, and the capital, Sana'a, extending through the central governorates all the way to Aden. However, in stark contrast, the Europeans responded without substantive action. In a surprising and somewhat perplexing contradiction, the European Union, along with several European countries, including Germany, France, Britain, the Netherlands, Lithuania, the Czech Republic, Estonia, and Austria, designated Lebanese Hezbollah as a terrorist organisation.

Simultaneously, the Houthis were not classified as a terrorist group despite similarities in doctrine, practices, financing, and their allegiance to Tehran. The Europeans actively played a pivotal role in preventing the Houthis from being included on terrorism designation lists, vehemently opposing the move, including the designation by the administration of former US President Donald Trump, which sought to label them as terrorists before the conclusion of his presidential term.

Comprehensive Rotation

The Russian-Ukrainian war instigated a geostrategic shift in European foreign policy, prompting a redefinition of interests and a repositioning on the global stage. European attention became sharply focused on the war in Ukraine and its consequences, particularly the challenges of displacement, inflation, and the urgent need for both humanitarian and military aid to support the Ukrainian people. Additionally, there was an increased emphasis on addressing the energy crisis. In the quest for alternative sources of Russian energy, European nations aimed to bolster economic and security cooperation between the European Union and the Gulf Cooperation Council and foster direct relations between Europe and the Gulf. This shift was particularly notable against the backdrop of the evolving American stance in the region.

A significant milestone in this realignment was the signing of a strategic partnership agreement in May 2022, encompassing 21 items across six key areas: political partnership, stability and security, counterterrorism and extremism efforts, combatting money laundering, addressing climate change, and fostering collaboration in the energy sector. As both sides endeavoured to elevate their relationship from cooperation to a strategic partnership, Europeans adopted a policy of silence, particularly concerning human rights issues in Yemen. However, concurrently, substantial financial allocations were directed towards funding human rights and accountability projects led by non-governmental organisations. It is evident that this tactical approach is intricately tied to the policy of uncertainty regarding the future trajectory of the European-Gulf partnership. This suggests that while the two sides have achieved a certain degree of calm, they have yet to resolve their differences definitively.

In conclusion, the European stance on violations in Yemen, marked by its dual and contradictory nature, appears to prioritise the interests of European countries over the well-being of civilian victims. In the initial phase of the conflict, the Europeans utilised the violations file as a leverage tool against Saudi Arabia and the UAE. In the subsequent phase, the violations file was seemingly traded for enhanced relations with Gulf states to secure alternative sources of Russian energy.

In a broader context, European human rights diplomacy functions as a form of soft power within the foreign policies of Union countries. It is often employed to cultivate influence, particularly in the internal policies of countries in the Global South. Unfortunately, this approach does not consistently align with international human rights and humanitarian law principles. This misalignment hampers the development of solutions that could foster collaboration between international institutions addressing violations and Yemeni national human rights institutions, which currently face challenges related to competence and governance.

Furthermore, a critical limitation is the inability to enforce jurisdiction across all of Yemen's territory due to the proliferation of authorities, paramilitary groups, and militias on the ground. This complex situation complicates efforts to address human rights violations comprehensively.

* تضم المجموعة الأوروبية كافة دول الاتحاد الأوروبي باستثناء فرنسا.
* تضم المجموعة العربية اليمن ودول التحالف العربي المساند للشرعية.
[1] الرئيس اليمني يصدر قراراً بإنشاء لجنة للتحقيق في ادعاءات انتهاكات حقوق الإنسان، صحيفة الشرق الأوسط، ٩ سبتمبر ٢٠١٥، متوفر على الرابط التالي: https://aawsat.com/home/article/447346/الرئيس-اليمني-يصدر-قرارا-بإنشاء-لجنة-للتحقيق-في-ادعاءات-انتهاكات-حقوق-الإنسان.
[2] انظر القرار A/HRC/RES/36/31، البند 12 ، الفقرة (أ) و (ب) و (ج).
[3] اليمن: المفوض السامي يعيِّن مجموعة من الخبراء البارزين الدوليين والإقليميين، 4 كانون الأول/ديسمبر 2017.
[4] مقابلات في دراسة سابقة للباحث، 2018.
[5] تقرير مفوض الأمم المتحدة السامي لحقوق الإنسان الذي يتضمن النتائج التي توصل إليها فريق الخبراء الدوليين والإقليميين البارزين المستقلين وموجز المساعدة التقنية المقدمة من مفوضية الأمم المتحدة السامية إلى اللجنة الوطنية للتحقيق   A/HRC/39/43،  الفقرة 74، ص 13.
[6] المرجع نفسه، الفقرة 59 (ص:11).  
[7] المرجع نفسه، الفقرة 80 (ص:14).   
[8] المرجع نفسه، الفقرة 108 (ص:19).
[9] المرجع نفسه، الفقرة 38/ أ-ب (ص:8)
[10] المرجع نفسه، الفقرة 103 (ص:18).
[11] المرجع نفسه، انظر الفقرتين 70/93 (ص:13_ ص:16).
[12] الحكومة تعبر عن استيائها من تسييس تقرير المفوض السامي وتصفه بغير المنصف، وكالة سبأ، ٢٦ سبتمبر ٢٠١٨، متوفر على الرابط التالي: https://www.sabanew.net/viewstory/38999
[13] بيان من تحالف دعم الشرعية في اليمن بشأن تقرير المفوض السامي لحقوق الإنسان، وكالة الأنباء السعودية، ٢٩ أغسطس ٢٠١٨، متوفر على الرابط التالي:  https://www.spa.gov.sa/1802774
[14] قرقاش: لابد من مراجعة تقرير الخبراء بشأن اليمن والرد، موقع اخبار الساعة، متوفر على الرابط التالي: https://hournews.net/news-90198.htm
[15] انظر ديباجة قرار إنشاء الفريق A/HRC/RES/36/31   ، متوفر في هامش رقم 14.
[16] المرجع نفسه، ملحق رقم 4 ، ص: 31.
[17] المرجع نفسه، الفقرة 25، ص: 6
[18] المرجع نفسه، انظر الفقرات من 28 الى 39 "، ص: 6،7،8،9،10.
[19] المرجع نفسه، الفقرتان40، 41، ص: 9
[20] المرجع نفسه، انظر الفقرتان 42، 43، ص: 9
[21] مجلس حقوق الإنسان يرفض تجديد ولاية فريق الخبراء المعني باليمن، والفريق يصف ذلك بأنه "نكسة" للضحايا، موقع الأمم المتحدة، 8 تشرين الأول/اكتوبر2021، متوفر على الرابط التالي: https://news.un.org/ar/story/2021/10/1084742