This essay is part of the Middle East-Asia Project (MAP) series on “Pathways to Transitional Justice in the Arab World — Reflections on the Asia Pacific Experience.” The series explores the pursuit of transitional justice in the post-Arab Spring Middle East, and how such efforts could be informed by past and ongoing justice processes in Asia-Pacific countries. See Resources …
Yemen was not immune to the wave of popular uprisings that swept some countries of the Middle East and North Africa region. However, because of the Yemeni state’s fragility, concurrent zones of conflict, and a power struggle that divided the core military and tribal elites, the international community was afraid that the youth uprising that started in January 2011 might lead to a collapse of the state. Given the consequences of such a collapse on the security of the Gulf states, oil production, and the international war on terror, the Gulf Cooperation Council brokered a deal in November 2011—the Gulf initiative—which laid the foundation for a transitional government. The main aim of the initiative was to secure a peace deal that halted Yemen’s slide into chaos. Peace was sought through the brokering of an inclusive National Dialogue Conference (NDC), but peace did not entail changing the regime or its pattern of politics. While transitional justice has been a part of this process of peaceful reconciliation, it raises questions about the sustainability of this peace and provides a showcase of the precarious state of Yemeni affairs.
Factors Constraining the Transitional Justice Process
Three factors have constrained the Yemeni process of transitional justice. The first is the international community’s priorities in dealing with Yemen. Two considerations have dominated international discourse on Yemen: fear of Yemen’s collapse and fighting the international war on terror. The first has led to an emphasis on sustaining peace, however fragile it may be, with justice relegated to a backseat. The second has led to security measures, including drone attacks, which often cause the deaths of civilian bystanders and further erode the legitimacy of the Yemeni state. In addition, the close cooperation between the Yemeni security apparatus, the United States, and the Gulf states in the fight against terror has made real institutional reform undesirable, if not risky, as reform could undermine the alliance.
Second is the duplicitous politics of the core elites, who engage in dialogue while at the same time sabotage the process. These core elites, who are responsible for most of the human rights violations that the transitional peace process seeks to address, exploit the domestic and international fear of the country’s perceived imminent “collapse” to perpetuate their grip on power. While engaging in the NDC they seek to influence the outcome in their favor, using threats and acts of sabotage outside the conference. They still play an important role in the Yemeni political system, hold key security positions, and make no secret of their determination to return to power in the next elections. For this group, transitional justice entails undertaking measures that lead to reconciliation and peace rather than measures that lead to accountability, vetting, and truth seeking.
Third, Yemen has a long history of political violence and grave human rights abuses, both before it became a unified state in 1990 and since—including during a civil war in 1994, during and after the Houthi war in the Sa`ada region in 2004, and involving the Southern Separatist Movement (al-Hirak) that began in 2007. The youth uprising of 2011 was marred by the security apparatus’ acts, which included gravely injuring and killing unarmed demonstrators. For those who endured the brunt of these violations, a transitional justice process that endorses peace but neglects to address the necessity of justice and acknowledgment of violations is not acceptable.
The Process of Transitional Justice in a Yemeni Context
The above three factors set the tone for the Yemeni process of transitional justice, influenced the parameters of what the process entails, and constrained it from the outset.
Though the Gulf initiative did give Yemen a safe route out of its predicament and halted its slide into civil war, it sought peace at the expense of justice. Hence, it provided former President Ali Abdullah Saleh with an exit and “complete immunity from legal and judicial prosecution” in exchange for stepping down from power. Immunity was also extended to those Yemeni officials “who have worked under the President—in state civil, military, and security agencies—in connection with politically motivated acts carried out during the course of their official duties.” This formulation of the immunity law indicates a desire to grant protection not only to associates of the president, but also to his rival faction of core elites, including the strongman Ali Mohsin al-Ahmar, who have been implicated in human rights violations during their work with Saleh.
The controversial immunity law, while failing to comply with Yemen’s obligation under international law, was meant to ensure a smooth transfer of power. It in fact created a situation in which perceived perpetrators of human rights violations remained integral to the political system. This compounded the effect of the Gulf initiative, which in essence recycled the old regime in a new package. The initiative stipulated in article 10 section (a) the creation of a national unity government equally divided between Saleh’s ruling party, the General People’s Congress (GPC), and its allies, and the National Council. The National Council includes the Joint Meeting Parties (JMP), a coalition of six political parties, the core of which is the Islamist Yemeni Congregation for Reform (Islah) and the Yemen Socialist Party (YSP) and their partners. Both sides were part of the governing regime in Yemen before and after unification, and their main actors—the GPC, Islah, and the YSP—are perceived to have committed human rights violations during Yemen’s recurrent civil wars and political struggles before and after unification.
While the governing bodies remained in the hands of the old political establishment, the Gulf initiative did seek to create a framework for peace through the NDC. The conference provided a political participation platform for groups including women, youth, and new political parties, which were often excluded from the informal elite power-sharing agreement. This was imperative given the alienation many youth and civil activists experienced because of the lack of transparency and elitist manner through which the Gulf initiative was reached. The importance of a sense of empowerment among these groups should not be underestimated. Yet the limits of what the NDC could achieve were clear to many.
These limits were particularly clear in regard to the contentious negotiations on the draft of the transitional justice law, which was redrafted several times and has yet to be issued. At the heart of the issue is the problem of divergent perspectives as to what the transitional justice process entails.
This disparity of opinions could even be seen in the naming of the law. The first draft of August 2012 titled it the Law of Transitional Justice and National Reconciliation, while the second draft renamed it the Law of National Reconciliation and Transitional Justice. While the draft is still under discussion, the controversy over the title indicates two different perspectives: one insists on achieving justice to reach reconciliation, and the other sees it the other way around, that is, reconciliation should pave the way for a “non-judiciary justice.”
Within the NDC transitional justice team this divergence was clear. Those representing groups that suffered from human rights violations such as the Southern Separatist Movement, the Houthis, youths, and women, insisted on a transitional justice that establishes the truth about past violations. These groups also insisted on the acknowledgement of past abuses that stretch back to1962 in North Yemen and to 1967 in South Yemen. They also asserted that those who perpetuated them cannot assume political positions and would receive amnesty at the very most. Representatives of the GPC and Islah Party, on the other hand, have been wary of any transitional justice that includes measures of truth seeking, vetting and dismissals, and institutional reforms. From their perspective, any transitional justice process should be based on reconciliation that includes measures of repartition and amnesty. Moreover, from their perspective, the suggested historical time frame will open a Pandora’s Box that brings to light political conflicts, assassinations, civil wars, and human rights violations that haunted both North and South Yemen before and after the unification. The problem is compounded by the fact that in Yemen’s entangled political history of conflicts and wars, sometimes a victim becomes a perpetrator and vice versa. The fear of revenge and bloodshed in a tribal context is often mentioned as a reason for this position.
The divergence in views and positions was clear in the changes introduced in the first draft of the Law of National Reconciliation and Transitional Justice, which omitted the mention of “revealing truth” and “preservation of national memory” from the definition of transitional justice. It also redefined “institutional reform” from “the restructuring of the organs and institutions suspected of committing human rights violations and to remove the causes and the elements that led to human rights violations and prevent their recurrence in the future” to “the restructuring of the organs and institutions concerned in accordance to modern administrative and regulatory frameworks.”
While such resistance to institutional reform is understandable given Yemeni elites’ interests and privileges, the insistence on a “non-judiciary” justice and fear of “truth seeking” is a broader issue that illuminates the precarious nature of Yemeni peace.
The difficulties of promulgating a transitional justice law are symptomatic of the whole process of transitional justice in Yemen. The process is not only hostage to the perspectives of different groups, but is also subject to the limitations imposed by the Yemeni context itself. A transitional justice process that does not seek truth, avoids institutional reforms that vet the perpetrators, and allows those responsible for human rights violations to continue in positions of power has no substance. Without substance, it is questionable that the process will achieve either peace or justice, much less both. In this light, it is fair to ask whether Yemen is ready for such a process in the first place.
This paper is based on a visit by the author to Yemen from 10-14 November 2013 and interviews with 12 Yemenis, most of whom are active members in the NDC and its transitional justice team. The author would like to express her sincere thanks to Amal al-Basha and Arwa Othman for the valuable help they extended to her work.
 For more information on this aspect see Ginny Hill, Peter Salisbury, Léonoe Northedge, and Jane Kinninmont, “Yemen: Corruption, Capital Flight and Global Drivers of Conflict,” A Chatham House Report, September 2013; Ibrahim Sharqieh, “A Lasting Peace? Yemen’s Long Journey to National Reconciliation,” Brookings Doha Center, February 2013; Elham Manea, “The Perils of Yemen’s Cunning State,” A NOREF Report, Norwegian Peacebuilding Resource Centre, September 2012.
 For more information on the politics of Yemeni elites see Manea, 8-11.
 Hill et al, 15.
 Yemen has a history of social exclusion affecting specific groups, such as the population of the Tehama region and members of disadvantaged minorities. However, this aspect was not raised in the work of the transitional process team in the NDC.
 Law No. 1 of 2012 Concerning the Granting of Immunity from Legal and Judicial Prosecution, articles 1 and 2.
 Interview with the author, Sana, November 2013. Both the Saleh faction and the Mohsin faction belong to the same clan. They have been engaged in a power struggle that threatens to destabilize the country. Ali Mohsin al-Ahmar sided with the youth uprising and tipped the balance against Saleh.
 For an example of human rights organizations’ critiques of the immunity law, see Amnesty International, “Yemen’s Immunity Law: Breach of International Obligations,” 30 March 2012, http://www.amnesty.org/en/library/info/MDE31/007/2012.
 Agreement on the Implementation Mechanism for the Transition Process in Yemen in Accordance with the Initiative of the Gulf Cooperation Council, signed on 23 November 2011.
 The irony of the immunity law was not lost on voices representing the victims’ side. Abdul Karim al-Khaiwani, a member of the transitional justice team in the NDC who has done research on human rights violations and was himself imprisoned and tortured, remarked: “The basics of a transitional justice process require a transitional situation and that those who committed human rights violations step down from their positions of power. Both are absent in Yemen. We do not have a transitional situation and the perpetrators are still holding positions of authority and the parties that committed violations are in power.” Interview with the author, Sana, 12 November 2013.
 Hill et al, 14.
 Interviews with the author, Sana, November 2013.
 Interviews with the author, Sana, November 2013. The immunity law was hence a subject of contention within the team. It expressed itself in the introduction of three propositions of article 108 in the draft of the team’s final report. See Team of Issues of National Dimension, Transitional Justice and National Reconciliation, “Final Report for the Second Period of the Team: For the Period between 13 July-17 August 2013” (draft), 24.
 Interviews with the author, Sana, November 2013.
 “The Newspaper Aloulaye Publishes the Text of the President’s Modifications on the Justice Law that Caused a Crisis” (in Arabic), Aloulaye (Yemen), 8 January 2013; Television interview with Mohammad Ahmed Almikhlafi, Yemeni Minister of Interior Affairs (in Arabic), The Meeting of the Day (show), Al Jazeera Arabic, 2 November 2013.