We are raising a submission today before the International Criminal Court on behalf of more than 200 victims and their families, calling for an investigation into inhumane attacks
Three years ago in Yemen, a missile struck a school bus killing 26 children, more bystanders, and maiming close to 100. There was no military target, no opposing soldiers, no militants, no reason. Just a stationary bus and a driver gone to seek water for thirsty kids, while others shopped for groceries in the local market. When families came to collect the dead, the blast had been so devastating some were unable to recover any body parts at all.
There have been so many more attacks just like the school bus in Yemen over the last six years, during the world’s worst and least known war. From a double missile launch on an indoor funeral delivering death for hundreds and life changing injury for more, to the use of foreign mercenaries in combat and torture – they risk being nothing but stories: truths, detailed by international NGOs, and reported in the world’s media – but not evidence laid out in any courtroom where such crimes of war and inhumanity should be held to account. For in Yemen there is no tribunal and there will be no trial to hear these charges. The victims would never secure one.
Nor can anyone believe the words of the coalition’s public relations officials – who claimed, after these attacks, there would be investigations. They are, after all, just three incidents in a six-year war of 20,000 airstrikes, a quarter of a million deaths, and four million civilian displacements. For this coalition, three is a number that must surely move no heart. A school bus, a funeral, and abuse and death at the hands of foreign mercenaries: this is nothing.
That’s why we raise a submission today before the International Criminal Court at the Hague in Europe on behalf of more than 200 victims and their families. When many of the applicants remain living in Yemen, they risk their lives to submit it. No matter: they call on the world’s court to launch an investigation into these three incidents – and many more – and start to assuage their grief.
The ICC, established to deal with the most serious offences, remains a voluntary tribunal. Yemen is not a member; nor is Saudi Arabia, nor UAE – the two, undisputed leaders of the war coalition. Without crimes committed either within a signatory state, or by one, the cause is surely lost. As recent attempts to open a case into genocide against the Chinese Uighurs demonstrate, no matter how terrible the evidence, even launching an investigation is beyond a court which holds uncertain jurisdiction to do so.
But with Yemen it is different. There were, and there still are, members of the Saudi-war coalition that are state signatories to the court. Their allegiance to both offers a route to redress. ICC member Jordan has contributed warplanes and has taken part in airstrikes; ICC member Senegal has provided more than 2,000 ground troops. Another ICC signatory and coalition partner at the time of these three attacks was the Maldives. Whilst their practical contribution is less clear, a formal investigation would establish the facts.
So too would an investigation into the extent of involvement of several hundred mainly Colombian mercenaries – their home also an ICC member country – reported as contract killers for the United Arab Emirates. Victims making the submission are giving evidence of imprisonment, torture, and worse by their hands.
The evidence submitted today opens doors to the prosecution of senior military and politicians for war crimes. Ever since the ICC initiated an investigation into alleged crimes of military personnel from the United Kingdom (a member state) in Iraq (a non-member state), this jurisdiction has been firmly established and consolidated. Here no case was subsequently begun – it was concluded that the UK was more than capable of addressing such cases itself – and the opportunity for plaintiffs to seek redress in Britain was substantial. No-one needs to be a lawyer to realise the chance of such cases going to court in other ICC states must be more slender.
But this submission offers more than just hope for victims: it offers promise for the court and its cause of international justice. The ICC is plagued by accusations of bias – from putting only Black Africans on trial, to not bringing investigations conducted beyond that continent to court. It offers a chance for its vindication, and an opportunity for the new Chief Prosecutor Karim A.A. Khan QC to reimagine its international remit and relevance after some $2bn (£1.4bn) spent on only 10 convictions in close to 20 years.
So, with clear evidence and strong jurisdiction, the case is there to be investigated. But will the court grasp it? What is certain is that Yemenis have no choice but to come to the ICC’s door. They deserve truth and trials. And if not at the ICC, then where?
Almudena Bernabeu is co-counsel for the victims, a winner of the Letelier-Moffitt Human Rights Award, and founder of the Guernica Center for International Justice. She was formerly director of the San Francisco-based Center for Justice & Accountability.
Toby Cadman is co-founder of Guernica37 Chambers of London, and lead counsel for the victims.