This past February, Yemen marked 12 years since the 2011 uprising against corruption, poverty, unemployment, and then-President Ali Abdullah Saleh’s increasingly autocratic rule. Peaceful protesters were met with brutal repression, and since then the human rights situation in the country rapidly deteriorated. In 2015, the country slipped into a brutal armed conflict that continues today and has resulted in the world’s worst humanitarian crisis.
Since 2016, the Yemeni National Commission to Investigate Alleged Violations to Human Rights (NCIAVHR) started documenting and investigating violations of international human rights and humanitarian law committed since 2011. To date, the NCIAVHR has documented more than 23,000 human rights abuses perpetrated by various parties to the conflict. The commission has so far referred over 2,000 cases to Yemen’s Public Prosecutor for further investigation and prosecution. However, no verdict has been issued in any of the referred cases.
The conflict and resulting instability and lack of effective governmental authority have considerably weakened the Yemeni judicial system, whose members have faced threats. Substantive institutional reforms that ensure a more independent judiciary with a broader understanding of transitional justice are of utmost importance to regain people’s trust in the judiciary and its ability to deliver justice.
To help address these issues, ICTJ organized a workshop on
In the absence of any effective actions by the international community to respond to the Yemeni conflict, local and international civil society organizations and victims have repeatedly called on the NCIAVHR— which is the only accountability mechanism in Yemen today—to increase the number of cases it is investigating and to take bolder
In an effort to advance accountability for human rights abuses, the NCIAVHR in July 2017 submitted a recommendation to Yemen’s Supreme Judicial Council to establish a specialized court and a prosecutor’s office to consider cases of human rights violations committed by all parties to the current armed conflict. To date, members of the NCIAVHR have held several meetings with the Supreme Judicial Council and the Public Prosecutor to discuss the steps required to create such a specialized court.
“The massive number of files that the commission will be referring to the judiciary and the complexity of the cases brought forward by victims can barely be addressed by existing institutions and structures that lack an appropriate legal framework for human rights violations in Yemen,” explained the NCIAVHR’s deputy president, Judge Hussein Al-Mashdali. “Therefore, it is essential to establish a specialized court that has qualified judges who understand the specificities of these cases and the procedures for prosecuting perpetrators of human rights violations, and who can deal with cases involving perpetrators who are in positions of authority.”
The workshop focused in particular on special jurisdictions and how they can provide accountability within a broader transitional justice process. It also sought to familiarize participants with the specific procedures and conditions required to prosecute human rights violations in accordance with international norms.
“The rationale behind establishing a specialized capacity to investigate and prosecute atrocity crimes is that it centralizes and concentrates national efforts under one organizational entity. This enhances coordination and cooperation between investigators and prosecutors, facilitates exchange of information, and promotes focused attention without being distracted or diverted,” said ICTJ senior programs expert, Howard Varney. “A specialized unit has to be adequately resourced and staffed with carefully selected and trained investigators and prosecutors.”
In Colombia, the Special Jurisdiction for Peace began its operations in 2017 with a mandate to investigate, prosecute, and sanction international crimes committed during the country’s 50-yearlong armed conflict. This legally and financially independent judicial organ emphasizes restorative justice measures, alongside more traditional retributive ones. It is the first judicial mechanism in the world that imposes non-custodial sentences for serious human rights violations, in exchange for the perpetrator’s cooperation, acknowledgment of truth and responsibility, and commitment to provide redress to the victims. A core principle guiding the Special Jurisdiction is victim participation.
“It is impossible for jurisdictions to fully repair the irreparable due to the immense size of the damage. However, ensuring victims’ participation in the Special Jurisdiction for Peace helped open forums for discussion, forums for debate, acknowledgment, recognition, and respect for victims,” said the president of the Colombian Special Jurisdiction for Peace, Judge Roberto Vidal, at the workshop.
For years, ICTJ has supported efforts in Colombia to advance justice for victims. But even after the signing of the peace agreement in 2016 and the subsequent creation of accountability mechanisms, many challenges persist. Head of ICTJ’s Colombia’s program, Maria Camila Moreno, who helped organize the workshop, considers an exchange of experiences between stakeholders in Yemen and Colombia beneficial for the processes in both countries. “The discussions during this workshop remind me a lot of similar discussions we had in Colombia,” she said. “Although the Colombian and Yemeni contexts are different and each has its own specificities, there are a number of elements in common such as the challenge of achieving justice amidst an ongoing conflict, the massive number of victims and violations committed, and the significant number of perpetrators, in addition to the weak capacities of state institutions to guarantee effective access to justice.”
Similar to Colombia, in Yemen, given the massive number of victims and crimes, it is impossible to investigate and prosecute every case through the ordinary criminal justice system. In such circumstances, prosecution strategies often target high-ranking individuals who planned and organized crimes and have a greater degree of responsibility, rather than lower-ranking perpetrators. For example, the Special Jurisdiction for Peace in Colombia adopted an approach that focuses on identifying systematic crimes, the modus operandi of these crimes, and those most responsible for their commission.
A specialized court alone, however, cannot deliver a justice that meets all the reparative needs of victims. Rather, it should be an integral part of a multifaceted transitional justice process that seeks to uncover the truth, preserve memory, provide redress to victims, and reform institutions. In Colombia, the transitional justice system also includes a truth commission and an extrajudicial and humanitarian body mandated to search for people who went missing or were forcibly disappeared during the conflict.
What is needed in Yemen is a comprehensive transitional justice process, not limited to criminal justice. This system should include various judicial and non-judicial measures that aim to clarify the truth and deal with the root causes of the conflict; acknowledge victims, the harm they suffered, and their rights to reparation; fight impunity; rebuild democratic and accountable institutions; and promote peaceful coexistence. Only then can justice for victims and a sustainable peace be achieved.
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PHOTO: Participants in the ICTJ-organized workshop on transitional justice mechanisms in Amman, Jordan, pause for a group photo. (ICTJ)
