A/HRC/42/CRP.1
Experts, most types of violations that the NCOI attributes only to the Houthis have also
been perpetrated by the coalition and/or the Yemeni forces, as is the case for recruitment of
children and the destruction of residential buildings. Hence, concerns about the impartiality
of the NCOI remain. Given its location in Aden, and the lack of cooperation by the Houthis,
the NCOI is inherently challenged in its access to information, which may also have an
impact on its effectiveness.
Transparency
882. The information presented in the reports as the basis for the NCOI’s conclusions
about specific violations and the attribution thereof remained insufficient for the Group to
assess whether the NCOI took into account all necessary elements to establish the
occurrence of a violation. In the majority of the cases detailed in its fifth and sixth reports,
the NCOI established that a reported incident indeed took place, as well as to which party /
duty-bearer responsibility could be attributed. However, in most of the cases detailed in the
reports, elements that would allow drawing conclusions as to the legality of the actions at
stake were missing, as well as any legal analysis. This is particularly striking in relation to
cases pertaining to international humanitarian law, as the NCOI does not mention facts of
specific incidents, e.g. related to the nature of the target, that would allow an assessment of
the legality under international humanitarian law. For most incidents attributed to the
coalition, the NCOI indicated that it is still expecting a response from the coalition to its
inquiries. This raises further concerns in relation to effectiveness, thoroughness and
credibility.
Credibility and thoroughness
883. In the cases where the legal basis used to assess a specific incident is mentioned, it is
not always accurate in terms of international law. For most incidents detailed in its reports,
the NCOI does not provide the necessary elements to allow the Group of Experts to verify
whether conclusions were drawn based on a sound legal analysis grounded in international
law. Hence, the Group has concerns as to whether the NCOI fulfils the required criteria of
thoroughness and credibility.
Effectiveness
884. Finally, a number of operational challenges appear to affect the NCOI in its
effectiveness, in particular with respect to the lack of cooperation by the Houthis. Also, the
fact that it is based in Aden renders the NCOI virtually inaccessible for many individuals
living in remote areas or areas under control of the Houthis. Further, in terms of
effectiveness, more information would be needed about the mechanism to refer cases to the
Yemeni public prosecutor,1423 as this is meant to ensure that violations established by the
NCOI will be handled by a competent judicial authority. Here, even if there were proof of
an effective referral mechanism, the shortcomings of the Yemeni judicial system – mainly
in terms of due process guarantees as identified in the reports of the Group of Experts –
would be an additional concern in terms of effective accountability.
Conclusion
885. To conclude, the Group of Experts notes that the reports of the NCOI have become
more balanced over time, in examining alleged violations committed by both sides of the
conflict. Recent restructuring efforts pursued by the NCOI have also shown its commitment
toward more effective accountability. The NCOI is an essential body to address impunity in
Yemen. To this end, it needs to be structurally and functionally independent. However, the
NCOI in its present form does not meet the standards set by international law to ensure
accountability, given it is embedded in the governmental structure.
1423
See Sixth report of the NCOI, p. 8, that mentions the right of the NCOI (in implementation of a
governmental decree of 2017) to refer cases relating to incidents of human rights violations to the
public prosecutor to complete the legal procedures against the perpetrators of these violations.
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