Yemen still confronts many challenges that must be overcome in order to arrive at the National Dialogue at which all parties are scheduled to meet. Their ostensible goal is to seek out all possible avenues to save the country from total collapse, as well as to search out the possibilities for reaching a solution that can prevent all parties from cascading back into a state of confrontation and strife.
Despite the various constraints associated with the preparation of the National Dialogue Conference, as well as the demands and requirements of the participants, the issue of "transitional justice" and "national reconciliation" has lately come to the fore of Yemeni politics. As the primary gateway to a comprehensive national dialogue, it remains the most vital and most perilous issue at present. It is the fundamental basis for salvaging and insuring the success of a political settlement for peacefully transferring power in Yemen.
To successfully implement the principle of transitional justice — upon which the GCC Initiative and its implementation mechanisms for governing the political transition were based, to say nothing of the law issued by the Yemeni parliament at the opening of 2012, which granted the former president Ali Abdullah Saleh immunity from judicial and criminal prosecution — Yemen's Minister of Legal affairs drafted a law titled "Transitional Justice and National Reconciliation." Proposed at the beginning of the current year, its purpose was to serve as the primary basis for insuring the justice of the transition process.
According to a source familiar with the Ministry of Legal Affairs, however, some of the signatories to the GCC Initiative that was first inked in the Saudi capital of Riyadh on Nov. 23, 2011, have raised strong objection to the draft law. Around six months ago, that opposition forced the ministry to attempt to break the deadlock and put an end to the efforts of some politicians aimed at burying the law. Their solution was to bring the draft law to Muhammed Salim Basindwa, Prime Minister of Yemen's national unity government, as well as President Abed Rabbo Mansour Hadi so that they, in turn, would bring it to the Parliament for discussion and approval.
A source requesting to remain anonymous told Al-Hayat that the former Yemeni President, Ali Abudallah Saleh, was working through the General People's Congress Party over which he presides in order to thwart any mechanism for enforcing transitional justice and block any law from being issued. The source believes that Saleh and the main figures of his deposed regime, those who won amnesty from legal and criminal prosecution, are opposing this law so that they will not be forced to recognize the crimes they committed against peaceful protesters throughout 2011, or even to disclose the facts of the violation committed against Yemeni civilians.
The JMP's Position
The Joint Meeting Parties' Bloc (JMP) is the General People's Congress Party's main partner in the political deal for a peaceful transition of power in Yemen. According to the source, their position toward the Transitional Justice draft law now benefits those interests standing in opposition to it, despite their previous assent to it. The source highlighted the joint position may stem from their failure to internalize or understand the text of the draft law, or to heed the demands of the revolutionary youth and the families of the victims now seeking the trial of those responsible for the human rights violations to which the revolutionary youths were subjected.
Yemen legal sources have made it clear that the Transitional Justice draft law principally seeks to bring justice to the victims and renewed consideration to them and their families. It also seeks to instill a sense of social stability by remedying the violations of human rights that have taken place in the last several years while, at the same time, putting in place fundamental laws and implementation mechanisms that will prevent their recurrence in the future. Legal experts have also pointed out that the Transitional Justice and National Reconciliation are among the most important components of a political settlement, and that failure to achieve them will prompt any settlement to collapse.
Legal experts believe who have spoken to Al-Hayat believe that the 'Transitional Justice and National Reconciliation' draft law (required by foreign states in political and military conflicts) seeks to placate the victims, award them compensation and restore their rights. It does not protect those accused of committing crimes or violating human rights so much as it seeks to reconcile the competing demands of justice and reconciliation without recourse to criminal or legal prosecution. It will work to reveal the facts behind the repression of youth and civilian protesters are disclosed through vigorous investigations conducted by an independent, specially appointed commission.
In Article 3, the draft law affirms that "a political transition in Yemen must be carried out on the basis of the principles of tolerance, forgiveness and national reconciliation as well as repudiating all forms of violence, retribution and prosecution." Similarly, it affirmed the importance of "taking the necessary measures toward instituting transitional justice in such a way that sheds light upon this law and its guarantee of material and moral compensation for those who suffered during this period, as well as redressing material losses in order to treat them equitably and reconcile with them."
According to the draft law, an independent, non-judicial commission titled the Commission on Justice and National Reconciliation will be appointed. It will be tasked with bringing about a national reconciliation between different components of Yemeni society driven apart by the political conflicts since 1994 until now, "including the issues pertaining to the seizure of private property, providing for functional restitution to their owners, regardless of whether the expropriations were carried out by the government, other authorities or armed groups exercising control over certain regions. Similarly it provides for the compensation of heirs to those who perished as a result of these violations. This includes the educational needs of the victim's children."
The commission will be constituted in accordance with the draft law "with a view to petitions and compensating the victims of grave violations committed before 1990, the effects of which continue to the present time and represent an ongoing violation of the victims' rights, one that has gone untreated until now." It also provides for "compensating the victims for the damage done to their human rights as a result of the fighting and the political conflict from January 2011 until the date of this law's issuance."
The bill also grants the commission “authority to subpoena witnesses and hear their testimony, attain access to any official documents they request as well as to their archives. When called upon to appear before the commission, the government is required to do so and provide all evidence requested of them.” It also grants the commission “the right to inspect when needed premises where violations have been perpetrated and to confiscate the instruments and tools employed in such violations.” The bill requires the Yemeni government “to pay such compensation as determined by the commission’s decisions within three months of issuing said decisions.”
Yemeni politicians and lawyers who have spoken to Al-Hayat have stressed the importance of moving forward to bring about a legal framework to regulate the process of transitional justice and approve the bill outlining it. It is necessary to restrain the excesses of political conflicts that remain ongoing to this very day. At the same time, they sought to amend the law to include armed tribal conflicts as well. In particular, they requested the inclusion of several conflicts between a number of neighboring tribes that have persisted for several decades and that successive Yemeni governments have struggled to contain. Their failure is attributable to the weakness of those governments, the absence of a just judiciary and the insistence of every tribe's members on exacting retribution as a result.
They emphasized that some of the tribal conflicts equal or exceed Yemen's political conflicts in importance, owing to the massive number of victims they have claimed. These conflicts also actively contribute to the ongoing deterioration of law and order in Yemen, which in turn exacts heavy losses from the state and contributes to economic underdevelopment. Development efforts and programs are hindered in the governorates and areas where these conflicts take place, such as al-Jawf and Maarib governorates (northeast Yemen) and al-Bayda Governorate (southern Yemen).
Yemeni politicians and lawyers believe that Yemeni authorities were working to fuel certain tribal wars by supplying all parties with money and weapons. Sometimes they did so in order to preoccupy these tribes with their regional disputes, and at other times to settle political scores with tribal adversaries. The politicians and lawyers [who spoke to Al-Hayat] believe that the inclusion of tribal conflicts and feuds within the agenda of the National Dialogue Conference, in addition to the Transitional Justice Law, will solve an exceptionally perilous social dilemma. Particularly as this dilemma is not free from political calculations. As they put it, resolving this problem will also contribute to a reduction in the arms throughout various parts of Yemen.
Despite the gravity of this issue, it remains far removed from the concerns of the political elite in Yemen. According to informed sources in the Ministry of Legal Affairs, the tribal conflicts will not be covered by the terms of the Law of Transitional Justice and National Reconciliation without significant political and tribal pressure. They will also require intensive efforts at convincing the various parties of the importance of dealing with this problem in a comprehensive manner, through the rules and mechanisms established by the Transitional Justice framework and backed by those foreign governments who have sponsored the political settlement in Yemen.
The sources noted that Jamal bin Omar, the UN envoy to Yemen (currently in Sana’a) and the ambassadors of those states that sponsored the Gulf Initiative are jointly pressuring the political parties to participate in the settlement to complete the Transitional Justice Law prior to the National Dialogue Conference. The sources confirmed that Bin Omar discussed the topic in his recent meetings with Yemeni President Abed Rabbo Mansour Hadi, Minister of Legal Affairs Dr. Mohammed Mikhlafi, and other political elements, and that he called for the rapid enactment of the law and formation of the Equity and Reconciliation Commission.
Waning Opposition to the Law
The sources pointed out that the Transitional Justice Law represents one of the most important terms of the political settlement. Furthermore, President Hadi’s enactment and approval of the law before the National Dialogue Conference is extremely important because there is no longer any time left for the cliques of politicians to squander in political maneuvering. The sources anticipated opposition to the law by all parties to fade in the face of regional pressure and international support for the law and of national reconciliation. In particular, the Security Council has a tendency to impose international sanctions on any party impeding the political settlement for a peaceful transfer of power.
In addition, the US Department of the Treasury’s Office of Foreign Assets Control (OFAC) recently released a list of rules and regulations. Issued by American President Barack Obama on May 16, 2011, it includes new sanctions against those who impede progress towards the completion of all provisions of this settlement. The provisions advance the implementation of the order and freeze the assets and property of people who threaten peace, security and stability in Yemen. The US Department of the Treasury stressed that this regulation is a final judgment, thus strengthening the convictions of Yemeni politicians of the international community's willingness to impose international sanctions capable of reaching anyone who impedes the political settlement in the country.
Among its publications, the UN has released a document titled “Rule of Law Tools for Post-Conflict States" in which it offers guidelines for offering amnesty in hopes of achieving peace. Their purpose is to prevent the prosecution of individuals who may bear legal responsibility for war crimes, genocide, crimes against humanity and other serious violations of human rights. Although this runs contrary to international obligations under several articles of international law and the general policy of the United Nations, [it stresses the importance of amnesty] in the hopes of achieving peace, even though many past experiences, according to international publications, have failed to achieve their objective and instead emboldened the beneficiaries to commit further offenses.
It notes that “in contrast, peace agreements have been reached without including amnesty provisions in cases where amnesty was said to be a necessary precondition for peace, and where it was feared that convictions would result in prolonging the conflict.” Despite this, the decrees emphasize the relevance of the UN to transitional justice. “Amnesty measures cannot restrict the victim's right in cases of human rights violations or war crimes to effective justice and meaningful redress, nor may they impede the rights of individuals or communities to know the truth about such violations.”