Fact-Finding in Ukraine: Can Anything Be Learned from Yemen?

On 4 March 2022, the United Nations Human Rights Council voted to establish a Commission of Inquiry to investigate “all alleged violations and abuses of human rights and violations of international humanitarian law, and related crimes in the context of the aggression against Ukraine by the Russian Federation, and to establish the facts, circumstances and root causes of any such violations and abuses.” This raises questions about the overlap between human rights law and the law of armed conflict/international humanitarian law. Such questions have been faced before, not least in Yemen, and it may be useful to look at that experience to see whether any lessons can be drawn from it which may be of use to the Commission of Inquiry in Ukraine.

 The Yemen Fact-Finding Experience

 On September 29, 2017, the Human Rights Council, after several years of discussion on the growing crisis in Yemen, decided to intervene with a fact-finding mission. The move was fiercely resisted by some Arab States, and the compromise was to set up a “Group of Eminent Experts” (GEE), who would report directly to the High Commissioner for Human Rights with the first report due in September 2018.

The mandate, as in Ukraine, was wide and required the Group to carry out “a comprehensive examination of all alleged violations and abuses of international human rights and other appropriate and applicable fields of international law committed by all parties to the conflict since September 2014.” In the light of the ongoing hostilities between the Saudi-led Coalition and the Houthi forces in control of Sana’a, this inevitably required an examination of the law of armed conflict and to some extent its relationship with international human rights law. This posed little real problem in relation to “Geneva Law,” that dealing with the protection of victims, as it is in many ways similar to international human rights law. Torture is torture and indeed, if anything, the law of armed conflict definition is slightly wider. However, there are clear tensions between international human rights law and “Hague Law” dealing with the conduct of hostilities.

This tension inevitably affected the methodology of fact-finding. Whereas under “Geneva Law” it is normal to start with the result—for example a torture victim—and work backwards from there, that methodology does not work necessarily for “Hague Law” allegations, particularly the laws on targeting. Most fact-finding has tended to concentrate on the principle of proportionality, but thereby lies a problem for the fact finder. The principle is best defined in Article 51(5)(b) of Additional Protocol I which describes as indiscriminate “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” However, the fact that a particular object has been hit by an air strike does not tell you whether it was the intended target, and still less what might have been the anticipated military advantage or the expected civilian loss and damage from that particular strike. That is information that could only be gained from the attacking side. As Russia voted against the establishment of the Ukraine Commission of Inquiry, it is highly likely that they will not cooperate with it.

However, it is comparatively rare in fact-finding missions to receive full cooperation from both sides of a conflict, particularly where that cooperation may require opening up to public examination sensitive military information such as detailed targeting processes. In relation to Yemen, the Saudi-led Coalition were not prepared to grant the GEE such detailed access. Some innovative thinking was therefore required to avoid falling into the trap of making assumptions without the necessary foundation of fact.

At least one previous fact-finding mission had run into difficulties when drawing conclusions from looking at only one side, namely the United Nations Fact Finding Mission on the Gaza Conflict. That Mission sought to draw conclusions from the results of attacks but, following information subsequently released by Israel, which had refused to cooperate with the Mission, Richard Goldstone, who chaired the Mission, stated that “if I had known then what I know now, the Goldstone report would have been a very different document.”

The Yemen GEE approached things from a different angle, concentrating more on Article 57 of Additional Protocol I which requires that in the conduct of military operations “constant care shall be taken to spare the civilian population, civilians and civilian objects.” In their first Report, although due to the lack of detailed targeting information on individual strikes, it was not possible to reach definite conclusions on any particular incident, it was possible to look at patterns. These revealed, as a result of the number of civilian casualties, the timing of some attacks, and the choice of weapons, that there were “serious concerns” about the targeting process itself (para. 38). The GEE went on to say “If there are errors in the targeting process that effectively remove the protections provided by international humanitarian law, these would amount to violations” (para. 39). The GEE also drew a distinction between “violations” of the law of armed conflict, a matter of State responsibility, and war crimes, involving individual criminal responsibility. Not every violation is a war crime.

Unfortunately, for bureaucratic reasons, the Yemen GEE were not able to publish their detailed legal analysis at the time of their first report. This had to await the second Report, and the accompanying Conference Room Paper in 2019. That paper devoted a section to applicable legal principles and, in particular, targeting law (paras. 61-80). It outlined in detail the principles of distinction and proportionality and dealt as well with precautions in attack and weapons use. In the Report itself, the Group reiterated that the airstrikes “raised concerns about the identification of military objectives and respect for the principles of proportionality and precautions in attack” (para. 30). The Group went on to say the fact that the patterns they had observed had continued “casts a serious doubt about whether the targeting process adopted by the coalition complied with these fundamental provisions of international humanitarian law.”

It followed that while it was not possible, with rare exceptions, to make a judgement on individual air strikes due to the lack of information from the attacking side, it was possible to use the evidence gained from general patterns to identify possible flaws in the targeting process. While the nature of those flaws could not be identified without a detailed analysis of the targeting process, which the Group would not be able to do because of lack of cooperation, the continuation of the patterns would indicate with increasing clarity that the flaws were continuing, and no remedial steps had been taken to remedy the situation. These patterns were again noted in 2020 with the Group in their Report noting that “[e]ven if it were confirmed that the coalition were directing attacks against legitimate military targets in some of these airstrikes, the extent of civilian casualties that could have been anticipated raises significant questions as to the proportionality of the attacks and whether all feasible precautions in attack were taken” (para. 31).

Reaction to the Yemen Reports

The Coalition attacked the Group’s findings, “characterising them as based on ‘assumptions,’” but the key point here was that the Group was avoiding the assumptions that had inevitably to be made in drawing conclusions in relation to individual strikes. Here, hard evidence on the ground was being used to reveal patterns, and it was these patterns, not the individual strikes themselves, that caused the concern. No assumptions were made as the facts spoke for themselves.

This change of approach made the final conclusions harder to dismiss. While mistakes are inevitable in war and do not amount necessarily to war crimes or even violations of the law of armed conflict, if the same mistakes are repeated over a lengthy period, then it is necessary to ask what steps have been taken to mitigate the risk of such mistakes. Failure to take steps would seem to be incompatible with the obligation to take “constant care” contained in Article 57. This takes away the emphasis on the individual strikes and concentrates on the process itself. This new approach seems to have been broadly welcomed although the Yemen GEE was stopped in its tracks by the decision of the Human Rights Council on October 7, 2021 not to renew the mandate.

Conclusion

The Ukraine Commission will be faced with similar difficulties. While the Commission may manage to get access to the ground—though even that cannot be guaranteed as the Yemen GEE found—it is unlikely that access to targeting information will be granted. However, this is not necessarily disastrous as the Yemen GEE have shown. By concentrating on patterns rather than individual strikes, it is still possible to come to conclusions based on the facts disclosed by those patterns. Such an approach also enables the Commission to present a wider picture of the effect of the conflict on the lives of the Ukrainian people and that in itself is a necessary part of the wider response to the crisis.

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Charles Garraway is a Fellow at the Human Rights Centre, University of Essex.

Photo credit: Felton Davis via Flickr