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Yemen is a country of rich cultural traditions that has historically had one of the most vibrant political spheres in the Middle East. It has also experienced near-constant transition from one political reality to another. From the 1962 civil war in North Yemen, to the British retreat from South Yemen in 1967, to the emergence of a unified Republic of Yemen in 1990, to the 1994 civil war, Yemen has been midwifed by tensions and conflict between various political and social groups. At times, these confrontations have led to violence and war, as is currently on display in the country. Ending this cycle, once and for all, is easier said than done. But, at the heart of this effort, the pivot upon which sustainable peace depends, is a meaningful system of transitional justice.

Transitional justice includes various mechanisms, legal and extra-legal, to address large-scale abuses and achieve accountability, reconciliation, and justice in post-conflict societies. With eight million people on the brink of famine, a cholera epidemic at globally historic levels, and tens of thousands of civilians killed or injured by on-going fighting, transitional justice may seem like a pipe dream for Yemen and far from an urgent need. Subscribing to this point of view would, however, be a mistake. It would effectively ignore the social, political, and economic effects of communal violence, ensure that fear and distrust remain potent within society, and condemn Yemen to a bleak future.

To avoid this inevitability, stakeholders in Yemen, as well as the international community, must begin discussing ways of incorporating transitional justice into the country’s post-conflict reality, and exploring how such mechanisms can be responsive to Yemeni needs at the national and local levels. With the recent conclusion of a round of preliminary talks between parties to the conflict, this strategizing should begin sooner rather than later.

A History of Transition and Impunity

Modern Yemeni political history is complex and cannot easily be reduced to cause and effect. That being said, Yemen’s current civil war is, in part, the byproduct of unresolved tensions that have existed for decades between various groups. At key junctures in this chain of events, transitional justice has been neglected to the ultimate detriment of Yemeni society.

The inflection point came in the early 1960s. In 1962, civil war erupted in independent North Yemen between republican forces and supporters of the ousted monarchy, lasting until 1970. Meanwhile, in South Yemen, Marxist-Leninist groups rose up against British colonial rule, eventually founding the People’s Republic of South Yemen in 1967. After peace was achieved, both states continued to be pockmarked by systemic repression and violence, including assassinations and coups, for which accountability, justice, and reconciliation were non-existent. Then, in 1990, the North and South merged to create the Republic of Yemen under the leadership of President Ali Abdullah Saleh. The union was, ultimately, an unhappy one and failed to resolve outstanding issues with respect to divisions of power and other sticking points between North and South. Unsurprisingly, the unification deal also did not address the history of political violence within and between the two states. In 1994, civil war erupted. Though a peace agreement was brokered in May of that year, it included a general grant of amnesty for many of the conflict’s players, including war criminals. The ground for further conflict and discord was made even more fertile, as a result.

In 2007, al-Hirak, or the Southern Movement, emerged and eventually began calling for formal independence. In 2004, the Houthi movement in the North also rose up as a potent force. Between 2004 and 2010, the movement and the government fought six separate wars, which resulted in the destruction of parts of the northern region and the displacement of countless civilians. Those wars, as well as efforts to quash al-Hirak, were marred by various war crimes, committed by all sides, which were, unsurprisingly, left unaddressed.The emergence of al-Hirak and the Houthis was itself the result of a failure of transitional justice – with the Houthis experiencing political and economic marginalization since the 1960s, and al-Hirak, as well as the South more generally, since the 1994 war.

Street protests, which began in February 2011 against the Saleh government, represented a continuation of these on-going grievances. Demonstrations formally ended several months later, in November 2011, when Saleh signed an agreement brokered by the Gulf Cooperation Council (“GCC”). In exchange for leaving office, Saleh was promised immunity from prosecution for both himself and various associates, with respect to crimes committed during his thirty-three-year rule. Instead of prioritizing justice and accountability, impunity was, effectively, embraced for the sake of so-called peace. Along with prominent human rights groups, the UN condemned the immunity arrangement, describing it as violating international law. Incensed by the deal, Yemenis returned to the streets and demanded Saleh’s prosecution for the killing of hundreds of protesters during the uprising. Those prosecutions never came. Instead, Saleh remained an active, destabilizing force in Yemeni politics, ultimately uniting with his once enemies, the Houthis, against the transitional government of President Abd Rabu Mansour Hadi, precipitating his ouster in January 2015, and triggering the current civil war. Six years after the immunity agreement, Saleh was executed in the streets of Sanaa in December 2017.

Transitional Justice in Yemen

Four decades of impunity triggered street protests that ousted a president and resulted in a peace agreement, which neglected the cause of justice, accountability, and reconciliation, and led, inexorably, to the current conflict. Nevertheless, it is because of this history that calls for transitional justice began to emerge before the current violence began.

During and after the 2011 protests, various groups, inside and outside Yemen, started to push for transitional justice mechanisms to address the root causes of the country’s political and social problems. Despite Saleh’s immunity deal, there was real hope, after his removal from office, that these issues could be tackled. Indeed, as part of the GCC-brokered deal, a National Dialogue Conference (NDC) was established in March 2013 to address conflicts seething for decades.

When the conference ended in 2014, most stakeholders believed the NDC had failed to address protesters demands or tackle the deeper rifts within Yemen. While the NDC had a transitional justice subcommittee, its work did not fare much better. The transitional justice law created by the group never made it out of committee thanks to obstruction by Yemeni elites. The body’s work, much like the rest of the NDC, was also viewed, by the general public, as disconnected from the needs of the Yemeni people and driven, primarily, by international actors and their objectives. While another transitional justice law had been considered by parliament, after Saleh’s ouster and before the NDC was convened, it failed to move forward.

Rather than giving up on transitional justice, Yemeni stakeholders and their international allies should redouble their efforts now and learn from these past mistakes. First and foremost, this means developing a transitional justice policy that is Yemeni in conceptualization and design. International frameworks for transitional justice are often viewed as the gold-standard, with locally-sourced solutions treated, at best, as compromised, second-best alternatives. Taking this approach is a mistake in Yemen, as in much of the rest of the world. While grounded in scholarship and experience with transitional justice in other countries, an effective transitional justice plan must be deeply embedded in local traditions and conflict resolution mechanisms. In the Yemeni context, this likely means incorporating existing tribal mechanisms for conflict resolution, which have long-filled an important gap left by weak and discredited state institutions. It requires being responsive to local needs and demands, and grappling with economic, social, and environmental problems, in addition to human rights violations. Whatever the mix, transitional justice mechanisms in Yemen must involve not only top-down, but also bottom up programs. This means mechanisms may be different not only by region, but by city, town, and village.

Transitional justice also must not be an elite enterprise – as it was the last time around– and instead receive support from the Yemeni people. In the global transitional justice community, elitism is, sadly, more common than not. While lip service is paid to the importance of indigenous conflict resolution strategies, efforts to meaningfully embed community norms into transitional justice practices often fall short. This is reflected in tendencies to couch transitional justice in high-minded, idealized terms, and treat “justice,” “accountability,” and “reconciliation” as legal totems. Rather than adopting these failed approaches, Yemen’s transitional justice mechanisms must reflect local understandings of these concepts and explicitly reckon with challenges to realizing these ideals in Yemen. To foreground this work, the value and limitations of transitional justice mechanisms must be widely understood and appreciated by local communities. This means efforts must be made to understand how locals view reconciliation, justice, and accountability, their importance to these communities, and the expectations local actors have of transitional justice mechanisms. As I have written about elsewhere, this information is critical both to shaping transitional justice mechanisms and generating popular support for these efforts, through processes of democratic debate and civic engagement.

This work is precisely the kind various Yemeni NGOs are well placed to do. If they coordinate their efforts and receive support from like-minded international stakeholders, these organizations can help ensure transitional justice concerns are reflected in the peace process – indeed, few other actors are inclined to have as positive an impact on this score. They can and should also join forces with those organizations, inside and outside Yemen, that have been documenting crimes committed by all parties to the conflict. Because the development of a transitional justice strategy must be carefully done, beginning this collaboration now is critical.

Whether it is realistic to push for a peace agreement that explicitly embraces transitional justice is an open question; like most attempts to realize justice for survivors of grave crimes, the odds of success are low, but the work is still worthwhile. At the very least, efforts can be made to ensure any future agreement does not institutionalize impunity and eschews the kind of immunity arrangements that have been part of Yemen’s past.

The Most Important Form of Accountability

Transitional justice inside Yemen is key for another reason, as well. There are few other routes to meaningful justice, accountability, and reconciliation for members of Yemeni society. Available legal mechanisms in other states, ranging from countries with laws extending universal jurisdiction to international human rights violations to those that have more limited forms of civil recourse against actors responsible for committing or abetting human rights crimes, are largely a dead-end for bringing current Yemeni or foreign officials to justice. Liability for U.S. corporate actors, including arms manufacturers supplying weapons to the Saudi-led coalition, are also challenging for reasons relating to issues of intent and causation under applicable U.S. law. For its part, the International Criminal Court (“ICC”), the global institution charged with investigating and prosecuting the gravest of international crimes, is presumptively unavailable unless jurisdiction can be established. This is a significant challenge given that neither Yemen nor most of members of the Saudi-led coalition are members of the ICC. A Security Council referral, which is an alternate route to ICC jurisdiction, is unlikely to materialize because of the veto power enjoyed by the Council’s permanent members, particularly the United States. While a future Yemeni government could voluntarily accede to the ICC’s jurisdiction, for the purpose of investigating and prosecuting crimes committed during the civil war, the likelihood of this is small, as well.

Even if such efforts were possible, they could not achieve the benefits transitional justice can realize in Yemen. Those benefits are ones most effectively attained locally – addressing the scars and other effects of systemic abuses is, after all, far easier where the range of individuals and communities impacted are close at hand. So to, international justice mechanisms are less likely to be influenced and shaped by local conceptions of justice, accountability, and reconciliation, as well as other important parochial interests necessary for social healing. While these cases may achieve justice and accountability as defined by international norms and laws, individual Yemeni survivors, as well as communities, may still feel excluded and their grievances unaddressed. Almost exclusively focused on legal redress, the ability to repair deep social, cultural, and political ruptures and address socio-economic and humanitarian problems in international or foreign fora is also highly limited. Finally, trials are, at best, only one component of a comprehensive, integrated transitional justice policy and must appear directly and clearly connected to that broader program, to be seen as effective by affected populations. On this score, international trials are less likely to fit the bill.

Quicksand

Justice and peace are two sides of the same coin. Sacrificing the former for the sake of the latter is tantamount to building a country’s future on quicksand. Yemen’s recent history, as well as that of other countries, serves as ample proof of this. Those states that have grappled with transitional justice in meaningful, albeit still imperfect, ways have reaped the benefits of reconciliation – countries like Chile, Argentina, and South Africa. Other countries that have ignored transitional justice – and there are many – have had to grapple with the consequences of that disavowal for generations. As advocate, activist, and law professor Bryan Stevenson has argued, the United States’ on-going struggle with racism in the criminal justice system and elsewhere is the result of a failure to treat the country’s legacy of slavery and Jim Crow as a transitional justice issue.

Setting Yemen on the right course requires grappling with many complicated problems – including movements for self-determination, divisions of power between various regions, as well as issues of poverty, unemployment, malnutrition, environmental degradation, and security. Transitional justice is deeply bound up with many of these questions, including resolving group grievances that threaten security, addressing the social and political causes of malnutrition and poverty, and tackling the underlying issues that have prompted groups to pursue secession. In short, transitional justice is the one solution to Yemen’s problems that cannot be bargained away.

The imperatives of transitional justice have been ignored in Yemen before. To avoid yet another spiral into war and violence, stakeholders, both Yemeni and international, must start discussing these issues together and develop a plan of action to ensure transitional justice is prioritized, rather than abandoned, this time around.

A shortened version of this article originally appeared in the Washington Post on December 20, 2018.

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