403. Providing for accountability in relation to violations is not restricted to providing criminal justice accountability. Victims’ right to an effective remedy includes the right to reparations as recognised in international human rights law614 and international humanitarian law.615
404. In this context, reparations are not limited to monetary compensation, but can take the form of:
➢ Restitution (measures aimed at restoring the victim, to the extent possible, to the situation before the violation occurred, such as restoration of property, or the restoration of liberty);
➢ Compensation (monetary payment);
608 Yemen’s recent history includes the use of broad amnesties. Pursuant to the GCC Agreement, the Yemeni Parliament passed a law in early 2012 (Law No 1/2012) that granted a blanket amnesty to President Saleh and an amnesty from criminal prosecution to officials who worked under the President for politically motivated cases. The High Commissioner for Human Rights criticised these amnesties, as did the Human Rights Committee: see CCPR/C/YEM/CO/5, para.6.
609 Security Council resolution 2140, S/RES/2140 (26 February 2014), para. 17.
610 Ibid, para. 18(c).
611 Security Council resolution 2216, S/RES/2216 (14 April 2015), para.19. This resolution also introduced a targeted arms embargo: para 14.
612 Security Council resolution 2511, S/RES/2511 (25 February 2020), para 6.
613 List of designated persons available at www.un.org/securitycouncil/sanctions/2140/materials.
614 See OHCHR, Rule-of-Law Tools for Post-Conflict States: Reparations Programmes (2008)
615 Ibid.
➢ Rehabilitation (measures that aim to mend the physical and/or psychological injury caused to a victim by the violation of a right and promote their social reintegration);
➢ Satisfaction (e.g. searching for the disappeared, providing the facts regarding violations);
and
➢ Guarantees of non-repetition.616
405. Measures of reparation should be designed with the participation of victim communities and with appropriate gender awareness.617 Reparations may take a material form (e.g., monetary payments, provision of particular assistance such as health care, education, housing) and/or a symbolic form (e.g., official apologies, commemorative measures). Reparations are designed to do justice to victims, but also to contribute to the re-establishment of broader norms, including justice.618 It is important for reparations to be implemented in an integrated fashion with other initiatives (e.g., prosecutions) and to ensure that reparations are not seen as a payment for the silence of victims and their families.
Reparations may also be directed at rectifying historic, systemic and/or collective violations and abuses experienced by communities and regions. While recognising that certain aspects of reparations may be more properly addressed during a post-conflict phase (e.g., setting up institutions such as a truth commission), there are many aspects of reparations that can be commenced even while the conflict is ongoing. The Group of Experts is concerned that parties to the conflict are not prioritising this aspect of addressing victims’ rights.
(a) Government of Yemen
406. The Government of Yemen, has been involved in a scheme jointly with the coalition to provide monetary payments and medical assistance to victims of particular airstrikes (see further below).
407. In relation to other initiatives, in Yemen’s report prepared in late 2018 for its Universal Periodic Review before the Human Rights Council, reference was made to a scheme providing “support and assistance” to the families of those who have been “detained and disappeared by the militias”, as well as a scheme to provide care for the families of
“martyrs” and treatment for injured persons.619 It is unclear, however, if these additional programmes are limited to victims from 2011 or extend to victims from the 2015-2020 conflict. In its correspondence with the Government of Yemen, the Group of Experts requested information as to any reparations schemes in place. As of the time of preparation of this report, no further response had been received. However, during the course of its investigations, most victims of violations with whom the Group interacted had not received assistance, nor were aware of any relevant options, indicating either that broader schemes do not apply to the 2015-2020 conflict, or are not accessible to most victims.
(b) De Facto Authorities
408. Previous correspondence from the de facto authorities to the Group of Experts indicated that as of May 2019, no payments had been made to individuals. They stated that their “armed forces [had]…not committed any crimes requiring compensation to victims”.620 In 2020, the Group of Experts sought further information concerning any reparations schemes in place, as well as details of any distributed payments to victims of violations. As of the time of preparation of this report, no information had been received. The Group of Experts understands, however, that the de facto authorities are taking some initiatives in this field. In January 2020, the Cabinet of the de facto authorities reportedly approved the establishment of the Families of the Martyrs Care Fund and entrusted the Ministers of Legal Affairs and Financial Affairs to prepare regulations for the funds and determine the means of financing.
616 These measures are further outlined in the Basic Principles and Guidelines on the Right to a Remedy and Reparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
617 See OHCHR, Rule-of-Law Tools for Post-Conflict States: Reparations Programmes (2008), and Guidance note of the Secretary-General: Reparations for Conflict-Related Sexual Violence (2014).
618 OHCHR, Rule of Law Tools for Post Conflict States: Reparations Programmes (2008), p10.
619 Government of Yemen’s UPR Report (2018), paras. 44-46.
620 Houthi Response to List of Issues, 31 May 2019.
Plans include the allocation of land to family of martyrs and the wounded, as well as education grants and employment opportunities for the children of martyrs and the wounded.
Medical treatment grants are also to be allocated to these families. It is understood that the health and education aspects of these programmes have commenced, but that other aspects await the preparation and passage of relevant regulations and relevant financing. The Group of Experts has not had access to documentation clarifying the definition of “martyrs” or
“wounded”, however, reportedly the definition only applies to individuals and families affiliated with the Houthis. The Group encourages the relevant authorities to adopt a broad approach so as to encompass definitions of victims in line with international standards.
(c) Coalition
409. The coalition, in conjunction with the Government of Yemen, has established a scheme to provide some payments to victims of some incidents, though there remain concerns as to the practical implementation of these schemes. In responding to the Group of Eminent Experts’ reports, the coalition have referred to their establishment of a joint fund to provide
“voluntary aid” in cases in which “mistakes” during military operations have caused collateral damage.621 JIAT press releases refer to recommendations for payments in cases of airstrikes in which there has been a breach of relevant rules, that is, the cases referred to military court-martial (phrased variously in terms of “compensation”, “redress” or “financial assistance”), and in cases of technical error (usually phrased in terms of “financial assistance”). Payments have also been recommended in a small number of other cases for humanitarian reasons.
410. The Group of Experts sought further information from JIAT as to payments, including the process for the payments, the quantum and the breakdown of victims. As of the time of preparation of this report, no information had been made available. From other inquiries made by the Group of Experts, it would appear that some payments have been made through the auspices of the Joint Committee for Distribution of Humanitarian Assistance. Concerns have been raised about the efficiency of distribution systems (including the coordination between the Government of Yemen and the coalition, the accuracy of beneficiary lists and the modalities and delays in payments).622 The Group of Experts encourages resolution of these issues as soon as possible. The Group of Experts is also aware of the transfer abroad for medical treatment of many severely or critically injured civilians (including a number injured in airstrikes investigated previously by the Group of Experts) through collaboration between the King Salman Humanitarian Aid and Relief Centre and the World Health Organisation. Despite these initiatives, the Group of Experts is concerned that the schemes are not sufficiently broad in scope (e.g., to cover all gross violations of human rights or serious violations of international humanitarian law) and are too selective in nature and application to represent adequate reparations according to international human rights standards.
Conclusion
411. From the information available to it, the Group of Experts considers that insufficient attention is being paid to the provision of adequate reparations to victims of violations. The Group of Experts encourages relevant authorities to prioritise the development of schemes that reflect the range of alleged serious violations that have occurred and are in line with international standards. While recognising that some aspects of reparations may need to await a post-conflict period, the Group of Experts considers that there are further measures that should be taken as a matter of urgency. These include: e.g., reviewing the nature and scope of existing schemes, including financial assistance; broadening the provision of immediate assistance to include ongoing medical assistance and psychosocial support;
developing more comprehensive programmes to support and rehabilitate victims; and
621 In the response of the coalition to the Group of Experts’ 2018 report, reference was made to aid for
“proven mistakes”. In their response to the 2019 report, reference was made to assistance for those affected by “military operations that have been unintentionally mistaken”: Statement of official spokesperson, Colonel Turki Al-Malki of 5 September 2019.
622 Confidential sources on file.
developing effective mechanisms to provide victims with the truth about violations (including the fate and whereabouts of those who have been disappeared).