Yemen Immunity in Jeopardy?

The Yemeni press last week published a fascinating interview with Mohammed Al-Mekhlafi, the Minister of Legal Affairs of Yemen, who suggests that notwithstanding the existence of a statutory amnesty, former President Ali Abdullah Saleh could be prosecuted for crimes committed against his own people during Yemen’s 11-month uprising if he continued to interfere in the political process.  Al-Mekhlafi affirmed that the original deal involved an exchange of immunity for a complete handover of power:

The [National Dialogue] conference agreed to reject the idea that Saleh can practice politics and enjoy legal immunity at the same time. .. [I]n the event that the former president and other members of the former regime continue to be politically active, influence decision-making, and undermine the transitional justice law, the grounds for amnesty and immunity will be neither acceptable nor defensible.

The amnesty deal, the result of multilateral negotiations led by the Gulf Cooperation Council but blessed by the Security Council, has been controversial since its inception.

Background: The Uprising

By way of background, President Saleh assumed the Presidency of North Yemen in 1978.  Following the North’s unification with South Yemen in 1990, he ruled both halves of the country for 33 years, portraying himself as the only person who could preserve Yemen’s territorial integrity and hold the country together.  Despite these claims, a short-lived civil war marked by serious violations of international humanitarian law (the law of armed conflict) broke out in 1994, with the South seceding in May of that year (although it never received international recognition).  The North crushed the rebellion, and the country was forcibly re-unified.  In the north, clashes continued to break out sporadically between the security forces and other rebels.

Yemen’s most recent unrest began in January and February 2011, following similar uprisings in Tunisia and Egypt.  Peaceful protests and student sit-ins culminated in massive demonstrations in March involving thousands of citizens demanding that Saleh step down.  Security forces and snipers, reportedly controlled by President Saleh and his family, attacked largely-peaceful protesters.  The most troubling episode was the so-called Friday of Dignity massacre on March 18, 2011, in which at least 45 protesters were killed by gunmen.  Approximately 270 people were killed overall, including injured demonstrators who were seeking refuge in al-Rawdha hospital.  Although the security forces were responsible for the attacks, there were high-level defections of members of the military who refused to order their troops to fire on protesters.

The Gulf Cooperation Council Efforts & Saleh’s Counter-Efforts

The 6-nation Gulf Cooperation Council (GCC)—whose members are Saudi Arabia, Kuwait, the United Arab Emirates, Oman, Qatar, and Bahrain (Morocco and Jordan have also requested membership)—began efforts to resolve the crisis.  With facilitation from the UN Secretary-General’s Special Adviser, Jamal Benomar, the GCC ultimately brokered a deal in April 2011 by which Saleh would step down and be replaced by his Deputy, Abdrabbuh Mansour Hadi, who would serve for two years and oversee the formation of a unity government and the drafting of a new constitution.  The deal also envisioned that Saleh would be granted amnesty, along with those members of his family holding positions of power and other government officials, for crimes committed during the 11-month uprising.  After his offers to form a “unity government” and revise the Constitution were rejected by the opposition, Saleh agreed to the deal’s terms, but then failed to sign it several times after stating repeatedly that he would.  The United States placed considerable pressure on him to finalize the deal, and the Security Council apparently threatened to seize his and his family’s assets if he did not relinquish power.

In the midst of this, on June 3, 2011, Saleh was seriously injured in an assassination attempt when opposition forces launch missiles at his Presidential Palace.  After receiving medical treatment in Saudi Arabia for burns over 40% of his body and other injuries, he returned to Yemen on September 23, 2011.  There was talk that Saleh would undergo continued medical procedures in the United States.  Later, however, the State Department reported that Saleh had asked for his passport back, suggesting that he would not travel to the United States after all; it was rumored that the trip was cancelled because he would not receive the dignitary’s welcome he felt he deserved.  On January 22, 2012, Saleh was finally granted a visa and traveled to the United States. The White House indicated that although the purpose of his trip was to receive medical assistance, his absence would

help facilitate a transition that completes the end of his rule, helps Yemen and ultimately has a positive effect on the rights and dignity of the Yemeni people.

The Daily Beast reported that Obama Administration officials wanted him out of the country during the February elections that ultimately elevated Hadi as a caretaker president.  Another theory suggests that he was being rewarded for his “fickle assistance” in fighting Al Qaida in the Arabian Peninsula (AQAP).  For his part, Saleh claimed that he was visiting the United States not for medical treatment, but to facilitate the elections:

I will go to the United States. Not for treatment, because I’m fine, but to get away from attention, cameras, and allow the unity government to prepare properly for elections…

While Saleh was in the United States, a delegation of the Security Council, co-led by Morocco and the United Kingdom, visited Yemen and met with political and civil society leaders as well as GCC members.  This was the Council’s first visit to the Middle East in five years.

Saleh returned to Sanaa in February 2012, in time for the inauguration of his successor.  Although this was not mandated by the GCC Pact, there was some talk that Saleh would go into exile (a villa in Ethiopia was mentioned as a potential destination along with Oman and the United Arab Emirates), although it was clear that it would be difficult to find a country that would or could take him given their treaty commitments to prosecute international crimes, their membership in the ICC, and their domestic law.  In the end, Saleh remained in Sanaa and became head of the General People’s Congress, one of the political parties that is part of the unity government.

On November 23, 2011, Saleh finally signed the power-transfer agreement brokered by the GCC.   As the ink was drying, however, he began maneuvering to ensure that members of his family continued to control important state institutions.

Parliament Codifies Immunity

Defying the calls of human rights groups and the  continuing demands of protesters in Yemen to reject the GCC amnesty deal, the Yemeni Parliament approved a law on January 21, 2012 (the Law No. 1 of 2012 Concerning the Granting of Immunity from Legal and Judicial Prosecution) that purported to grant Saleh—and anyone who worked under him—immunity from prosecution for any crimes committed during his 33-year reign (the full text is an annex to this Amnesty International report on the law).  The law thus went well beyond what the GCC Pact envisioned.  As anticipated, and following elections in which Hadi was the sole candidate, Saleh stepped aside in February 2012.  Hadi was sworn in on February 25, 2012.

Hadi subsequently dissolved the country’s Republican Guard, which was led by Saleh’s eldest son, and removed the ex-President’s nephews from the counterterrorism unit and central security forces.  Those removed were granted diplomatic posts abroad. In April 2013, the government further purged the military leadership.  The Security Council subsequently welcomed the reorganization of the armed forces.

The International Community’s Reaction

Some elements of the international community embraced the GCC immunity deal.  The United States defended it as essential to bring an end to the crisis facing the country. The Security Council blessed the arrangement in two internally contradictory resolutions—one that called for the parties to sign and implement the GCC agreement (UNSCR 2014 of October 21, 2011) and one that called for the Pact’s implementation, including through a Yemeni-led process of national dialogue (UNSCR 2051 of June 12, 2012).  On the one hand, in these resolutions, the Council underlined

the need for a comprehensive, independent and impartial investigation consistent with international standards into alleged human rights abuses and violations, with a view to avoiding impunity and ensuring full accountability.

It also condemned human rights violations by the Yemeni authorities—including the use of excessive force against peaceful protesters and abuses by other actors—and stressed that

all those responsible for violence, human rights violations and abuses should be held accountable.

At the same time, Resolution 2014 simultaneously welcomed “the engagement of the Gulf Cooperation Council” and reaffirmed its view that the implementation of “a settlement agreement on the basis of the Gulf Cooperation Council initiative is essential” for political transition in Yemen.  It also called on

all parties in Yemen to commit themselves to implementation of a political settlement based upon this initiative.

Needless-to-say, human rights groups were outraged at the arrangement.  They were particularly galled that the U.N. Security Council, rather than holding its nose and looking the other way, would bless such a deal in violation of the U.N. Secretary-General’s directive on including amnesties within peace deals.  The Secretary General’s report on “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies” clearly states at ¶10 that the “normative boundaries of United Nations engagement” require that:

United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights.

That said, the Report notes at ¶32 that carefully crafted amnesties for former fighters in non-international armed conflicts (as called for by Article 6(5) of Protocol II to the Geneva Conventions) are permissible, so long as they do not excuse the commission of international crimes or gross human rights abuses.  This

United Nations policy to reject any endorsement of amnesty for genocide, war crimes, crimes against humanity, or gross violations of human rights

was reaffirmed in a 2011 follow-on report by the Secretary General.

In a statement issued on January 6, 2012, Navi Pillay, the U.N. High Commissioner for Human Rights, stated that the deal violated international law as well as Yemen’s human rights obligations (the list of treaties is here):

Victims have the right to justice, to the truth, to remedy and reparation – these are rights that are well-established internationally. … Any adopted legislation would also need to respect the principle of equality before the law—meaning that there should be no discrimination between individuals who are pro-Government or in opposition and no distinction based on family connections. Every individual who commits a crime is accountable and should not be allowed to escape justice.

National Dialogue Conference Commences Work

As part of the GCC deal, the government began reconciliation talks on March 18, 2013, in the form of a 565-member National Dialogue Conference (NDC) that is meant to address popular grievances and pave the way for constitutional and other reforms.  The Security Council welcomed the opening of the NDC and emphasized the need for an inclusive process, free from interference by any elements, including ex-President Saleh and his supporters.  The Council indicated its readiness to consider “further measures,” including under Article 41 of the UN Charter, to address efforts to undermine the political transition.  Article 41 empowers the Security Council to adopt “measures not involving the use of armed forces,” such as sanctions.

One of nine working groups, an “8+8 Committee” containing equal representatives from the North and South, is addressing the grievances of the southern secessionist movement and considering federalist solutions.  The Transitional Justice Working Group has called for Parliament to rescind the January 2012 immunity law.  In August, 2013, this same Conference voted to criminalize drone strikes within Yemen.  This call was echoed by Parliament in December 2013, after a drone strike hit a wedding party.  That month, and in keeping with the GCC deal, Hadi’s government issued a public apology for conflicts waged against southern separatists and northern opposition forces under President Saleh.

The Conference was scheduled to finalize its work in September 2013, but negotiations continue, and there have been indications that some southern groups have withdrawn their participation.  On November 27, 2013, and following a briefing from Special Adviser Benomar, the Security Council welcomed the progress made in the NDC, but expressed concerned about the delays and condemned interference by members of the prior regime and others intent on derailing reconciliation and political progress.  The Council encouraged the parties to implement the “principles” and “steps” contained in the GCC Pact and promised to support the unity and territorial integrity of Yemen, notwithstanding the endurance of the Herak secessionist movement.  It also indicated that it would “consider further measures” in response to efforts to disrupt the transition process.

In Closing  

Hadi’s term will expire in 2014, when new parliamentary and presidential elections will be held.  It remains to be seen whether the immunity deal will hold.  In April 2013, a Yemeni court opened an investigation Saleh’s role in the Friday of Dignity massacre.

Meanwhile, attacks by Al Qaida in the Arabian Peninsula (AQAP) continue, including one on a hospital for which the group apologized.  U.S. policy toward Yemen is complicated by its campaign against the group and its tactic of using drone strikes against AQAP operatives (sources estimate that there have been between 60-100 attacks)—a policy criticized by Human Rights Watch as in violation of international humanitarian law and human rights law and counter-productive as a matter of policy.  Concerns have been raised that the lack of transparency around the drone program and the failure to pursue other policies against AQAP (such as investing in those communities that also are working to oppose the group and prevent it from gaining a larger foothold in the region) will undermine the National Dialogue Conference and its efforts to create a foundation for democracy and the rule of law. 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).