A/HRC/45/CRP.7
previously discussed, the same obligation can be considered as attaching to the de facto
authorities in Yemen.542 In the context of the conflict in Yemen, other States that are party
to the conflict have similar duties with respect to violations committed in the course of their
operations.
365. Specific legal regimes provide a broader obligation on States Parties to “extradite or
prosecute” alleged perpetrators of certain offences. This means that third States that find an
alleged perpetrator on their territory, are obliged in the circumstances outlined under the
relevant treaty regime, to undertake necessary investigations and submit the matter to
prosecutorial authorities, or extradite the individual.543 There has also been recognition that
as a matter of customary international law, States must investigate war crimes over which
they have jurisdiction under their national legislation, and, if appropriate, prosecute the
suspects.544 Even outside these specific contexts, third States more generally have the power
under international law to launch prosecutions of international crimes committed in other
States using what is called “universal jurisdiction”.
Progress to Date in Accountability Field
(i) Government of Yemen
366. In its previous reporting period, the Group of Experts examined the operation of the
National Commission of Inquiry (NCOI) established by the Government of Yemen, based
upon information available to it.545 The NCOI was mandated to investigate all alleged
international human rights law and international humanitarian law violations perpetrated in
Yemen since January 2011.546 Cases investigated by the NCOI are to be referred to the
national judiciary “so that perpetrators of human rights violations are brought to justice and
the victims receive reparations.”547
367. Since the time of the Group of Expert’s previous report, the NCOI has issued two
further reports: a seventh report covering the period 1 February 2019 to 31 July 2019548 and
an eighth report, covering the period 1 August 2019 to 31 July 2020 (thus covering most of
for Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, adopted by General Assembly resolution 60/147 (16 December
2005) principle 4; and the Updated Set of Principles for the Protection and Promotion of Human
Rights through Action to Combat Impunity, E.CN.4/2005/102/Add.1 (2005), principle 19.
542 The Group of Experts has previously considered the applicability of duties under international
human rights law to de facto authorities: A/HRC/42/CRP.1, para.82 as well as the applicability of the
international humanitarian law obligations: para.870.
543 Explicit duties to “extradite or prosecute” are found in, for instance, the CAT, CPED, and the
grave breaches regime of the Geneva Conventions (applicable in IAC). The ICJ in the Questions
relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) ICJ Reports 2012, p. 422,
determined that the obligation to prosecute under the CAT arose regardless of the existence of a prior
request for the extradition of a suspect. National authorities are left to decide whether to initiate
proceedings in light of the evidence before them and the rules of criminal procedure. The obligation
to prosecute in this respect is the obligation to submit the case to the prosecutorial authorities. Note
there are different formulations of the extradite or prosecute obligation: see “The obligation to
extradite or prosecute (aut dedere aut judicare): Final Report of the International Law Commission”
(2014).
544 ICRC Study on Customary International Humanitarian Law, rule 158.
545 The Group of Experts has previously expressed concerns about whether the NCOI conducts its
investigations in accordance with international human rights standards, in particular raising issues
concerning transparency, independence (e.g. in selection of cases), effectiveness, thoroughness and
credibility of the NCOI, see A/HRC/42/CRP.1 paras. 879-886.
546 The NCOI was established following the amendment by President Hadi on 7 September 2015 of
Presidential Decree No. 140 of 22 September 2012 (as amended by Decree No. 13 of 2015, Decree
No 50 of 2017 and Decree No.30 of 2019)).
547 National report submitted in accordance with paragraph 15 (a) of the annex to Human Rights
Council resolution 5/1: Yemen, 8 November 2018 (“Government of Yemen’s UPR Report (2018)”),
para. 49.
548 Seventh Report: The work of the National Commission to Investigate Alleged Violations to
Human Rights in Yemen (2019) (“Seventh Report of the NCOI”)
91
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