How transitional justice can affect Yemen’s future

Houthi Shiite fighters guard a street leading to the residence of former Yemeni President Ali Abdullah Saleh, in Sanaa, Yemen, Dec. 4, 2017. (Hani Mohammed/AP)

By Maryam Jamshidi

Last week’s rare meeting in Sweden between representatives of Yemen’s internationally recognized government and the Houthi movement raised hopes for the possible resolution of its devastating civil war. Such efforts are unlikely to have lasting effect, however, if they fail to address questions of transitional justice.

Transitional justice includes legal and nonlegal mechanisms to tackle large-scale abuses and achieve accountability, reconciliation, and justice in post-conflict societies. With 8 million people racked by famine, a cholera epidemic at globally historic levels, and tens of thousands of civilians killed or injured by fighting, transitional justice may seem like a pipe dream for Yemen. Subscribing to this view would, though, be a mistake.

Lasting peace and the reconstruction of the country will require addressing the social, political, and economic effects of communal violence, which did not start in 2011. Indeed, Yemen’s war is rooted in part in earlier unresolved conflicts. From the civil wars in North and South Yemen in the 1960s, to the emergence of a unified republic in 1990, to the 1994 civil war, Yemen has been midwifed by conflict between various political and social groups. At times, these confrontations have led to violence, as is on display. While ending this cycle is easier said than done, at the heart of this effort is a meaningful system of transitional justice.

A history of transition and impunity in Yemen

Yemen’s civil war is, in part, the byproduct of long-standing, unresolved tensions. At each of these inflection points, transitional justice has been neglected in the name of expedience, with detrimental results.

Before North and South Yemen were unified, they each experienced civil war. Even after peace, both states continued to be pockmarked by systemic repression and violence for which accountability, justice, and reconciliation were nonexistent. After unification, tensions continued with another civil war erupting in 1994. A peace agreement brokered in May of that year 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 rose up as a potent force. 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 conflict. The ensuing violence between the central government and these two groups witnessed various war crimes, committed by all sides, which were, unsurprisingly, left unaddressed.

Street protests, which began in February 2011 against the government of President Ali Abdullah Saleh, were a continuation of these ongoing grievances. In November 2011, Saleh signed a deal brokered by the Gulf Cooperation Council (GCC) agreeing to leave office in exchange for immunity from prosecution for both himself and various associates, with respect to crimes committed during his 33-year rule.

For the sake of so-called peace, impunity, instead of justice and accountability, was embraced. After stepping down, Saleh remained an active, destabilizing force in Yemeni politics, ultimately uniting with his once enemies — the Houthis — against the transitional government of President Abdu Rabbu Mansour Hadi, and setting off the current civil war.

Failed attempts at transitional justice

While four decades of impunity led to the conflict, it is because of this history that calls for transitional justice emerged even before the violence began. Indeed, during and after the 2011 protests, various groups started to push for transitional justice mechanisms to resolve the country’s underlying political and social problems. 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 reckon with protesters demands and tackle Yemen’s deeper rifts. While the NDC had a transitional justice subcommittee, the transitional justice law it created never made it out of committee — thanks to obstruction by Yemeni elites. The general public also viewed the body’s work, much like the rest of the NDC, as disconnected from the needs of the Yemeni people and driven, primarily, by international actors.

Another transitional justice law had been considered by parliament after Saleh’s ouster — but it, too, failed to move forward.

Working with existing frameworks

International frameworks for transitional justice are often mistakenly viewed as the gold standard, with locally-sourced solutions treated as compromised alternatives. In Yemen, effective transitional justice plans must be deeply embedded in local traditions and conflict resolution mechanisms, while also grounded in scholarship and experience with transitional justice in other countries. This means incorporating existing tribal mechanisms for conflict resolution that have long-filled an important gap left by weak state institutions. It requires being responsive to local needs, and grappling with economic, social, and environmental problems, in addition to human rights violations. Top-down, as well as bottom up, programs are necessary, with mechanisms potentially varying by region, as well as by city, town, and village.

Ensuring that transitional just is not an elite enterprise — as it was in Yemen before — increases the chances of success. Transitional justice mechanisms that eschew tendencies to couch justice, accountability and reconciliation in high-minded, idealized terms, reflect local understandings of these concepts instead, and explicitly reckon with challenges to realizing these ideals stand on more solid group. Foregrounding this work, the value and limitations of transitional justice mechanisms must be appreciated by local communities.

Understanding how locals view reconciliation, justice, and accountability, their importance to these communities and the expectations local actors have of transitional justice mechanisms is key. This information not only helps to shape transitional justice programs, but also generates popular support for these efforts, through processes of democratic debate and civic engagement.

Transitional justice is bound up with many of Yemen’s urgent and intense challenges, such as the drive for self-determination, as well as problems of poverty, malnutrition and security. Well-designed transitional justice measures could help resolve grievances that threaten security, address the underlying causes of socio-economic issues and tackle the resentments that have prompted groups to pursue secession. In short, transitional justice is the one solution to Yemen’s problems that cannot be bargained away.

Maryam Jamshidi is an acting assistant Professor at NYU Law School and specializes in national security and public international law, including issues of transitional justice

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