Justice for Past Abuses, Women’s Equality Should Not Wait for New Constitution
February 10, 2014
The national dialogue process ended with excitement and congratulations, but political leaders might take advantage of conflicting recommendations on key rights issues to stymie reform. The best course is for the politicians to resolve any disagreements in accordance with Yemen’s international human rights obligations.
Sarah Leah Whitson, Middle East director

(Sanaa) – Yemeni lawmakers should act on recommendations by the National Dialogue Conference on Yemen’s future constitution. In particular, the lawmakers should address recommendations that promote justice for abuses during the 2011 uprising, defend women’s equality, and promote other basic rights.

The 565-member National Dialogue Conference began in March 2013 to bring together all segments of Yemeni society to set the country’s future direction, including the framework and principles for a new constitution, restructured government and national elections. Some lawmakers may seek to use contradictory language in the final conference report, issued on January 21, 2014, to delay or ignore recommendations on rights, Human Rights Watch said.

“The national dialogue process ended with excitement and congratulations, but political leaders might take advantage of conflicting recommendations on key rights issues to stymie reform,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “The best course is for the politicians to resolve any disagreements in accordance with Yemen’s international human rights obligations.”

Human Rights Watch discussed the report, which included over 300 pages of recommendations and other human rights concerns with President Abdu Rabu Mansour Hadi and other high-ranking officials and political party leaders during meetings in Sanaa, the capital, from January 26 to 28, during a visit facilitated by Yemen’s Human Rights Ministry.

The others are Maj. Gen. Ahmed Hussein al-Akily, director of the Office of the Supreme Commander of the Armed Forces; Mohammad Makhlafi, legal affairs minister; Aref al-Zuka, assistant secretary general of the ruling General People’s Congress; Abdulwahab al-Anisi,the secretary general of Islah, the most popular Islamist party; and Fouad al-Ghaffari, director of the human rights minister's office.

Hadi told Human Rights Watch that he would postpone the conference’s recommendation for a commission of inquiry into 2011 human rights violations until after the national referendum on the new constitution – which will be in June at the earliest, and possibly much later.

Hadi also told Human Rights Watch he has stopped the process of nominating commissioners, and will postpone this until after the referendum. He said that he could not establish the commission before the dialogue was completed or the constitution is drafted because otherwise certain political parties would refuse to cooperate.

In September 2012, Hadi also decreed that a commission of inquiry would be created within six months. He recently told United Nations and other international officials that he would establish the commission at the end of the National Dialogue process, a senior UN official told Human Rights Watch. Various government officials had said they expected Hadi to appoint inquiry commission members imminently.

The final conference report also calls for a transitional justice law that addresses victims’ rights to remedies for human rights violations and rejects immunity for serious crimes. But it includes a statement issued on January 7 that none of its recommendations can contravene the accord brokered by the Gulf Cooperation Council (GCC), which provides immunity for former president Ali Abdullah Saleh and other former officials. Al-Zuka told Human Rights Watch that the party agreed to sign the conference’s final document only after it was made clear that “none of the recommendations could conflict with the accord.”

Hadi told Human Rights Watch that he will revise the draft transitional justice law based on the recommendations of national dialogue, but it is unclear whether he will remove the provision providing immunity. Hadi had presented a draft transitional justice law to the parliament in January 2013 that explicitly states that any investigations will be subject to the Immunity Law of 2012. The Immunity Law grants blanket immunity to Saleh from prosecution for any action during his 33-year rule, and shields Saleh’s aides from prosecution for “political crimes” as long as they were not terrorist acts. Parliament passed the Immunity Law, a condition of the GCC accord, to secure Saleh’s abdication.

Hadi also said that there would be no immediate progress in the work of an investigative committee he established in connection with the December 27 attack by the army’s 33rd Armored Brigade on a funeral service held in a school in al-Dale`a that killed 15 people, including at least2 boys, 3 and 11 years old. The president established the committee to investigate the incident on the day of the attack, but it has not reported its findings.

Hadi told Human Rights Watch that political circumstances made it too difficult to conduct investigations into wrongdoing by security forces. If the committee were to find that commanders in the December attack were responsible for wrongdoing, the president said, he would be unable to mandate their punishment, given tribal affiliations of local brigades.

A general issue with the Yemeni military is that each brigade is formed from the same tribe,  Hadi said. He said he cannot remove a commander who commits an abuse because the commander will simply reject the decision and the brigade will stand by him.

Al-Akily told Human Rights Watch that the military normally investigates all incidents of firing by the military, but that it had not done so in this case because of the president’s initiative. He said that the 33rd Armored Brigade had fired on the funeral gathering because tanks and security forces stationed nearby had come under fire from the area.

When asked whether the Defense Ministry had identified all of those killed and whether they were legitimate targets, he said it had, and had concluded that all of those killed were militants. However, when Human Rights Watch provided information about the ages of the two children killed in the attack, he said that he was not sure of all the facts of the case and that further questions on details about the incident should be presented in writing to the ministry.

“As difficult as the political circumstances may be, the very least the government should have done in this attack is to identify the names and ages of those killed and a basic accounting of what happened,” Whitson said. “Failing to acknowledge that some of those killed were young children will do nothing to establish trust in the government’s security forces, which the president cites as one of the very reasons for the government’s weakness.”

In a potentially significant victory for the rights of children, the National Dialogue final report’s recommendations 166 and 167 of the rights and freedoms working group unequivocally establish a minimum age of 18 for marriageand criminalizes facilitation of underage marriage. Al-Anisi of the Islah party, which strongly opposed the passage of a minimum age in parliament in 2009, told Human Rights Watch that his party recognized the clear language of the recommendation and would not oppose any legislation intended to implement it.

Recommendations for constitutional provisions, principles, and legislative reforms would harmonize Yemeni laws to meet international standards, including to ensure equality of men and women, and to prohibit discrimination based on gender, race, religion, opinion, or social or economic status.

The first recommendation of the state-building working group’s subset of social principles is “The State guarantees equality and equal opportunities for all [male and female] citizens in political, economic, social, and cultural fields and will adopt the necessary laws to this effect.” Recommendation four of the state-building working group’s third subset of recommendations states, “All citizens shall be equal in rights and duties before the law, without distinction based on sex, race, origin, color, religion, sect, doctrine, opinion, or economic or social standing.”

However, the final report also recommends using Sharia, or Islamic law, as the primary source of legislation, which could facilitate discrimination on matters of divorce, child custody, and inheritance, among other areas, Human Rights Watch said.

Members of the rights and freedoms working group told Human Rights Watch following the passage of the final report that they believed the provisions on equality and discrimination mandate absolute equality under the law. However, al-Anisi said that he believed the Sharia provision would limit other recommendations to established legal doctrine and would not affect Yemen’s existing personal status laws that discriminate against women.

Hadi told Human Rights Watch that the recommendations of National Dialogue are binding on the new government, because they were agreed on by consensus and therefore must be implemented. He said that the new constitution will enshrine the mandatory nature of the recommendations, and that he will nominate the members of the constituent assembly, who he trusts will implement the recommendations.

However, both he and Makhlafi, the legal affairs minister, agreed that there was no legislative provision that binds either the constituent assembly or the government to carry out the report’s recommendations. Human Rights Watch raised with Hadi the unlawful detention of Adel Yahya Said al-Khawlani by the Political Security Organization. He was arrested on January 4, 2013, and held in the Political Security Organization’s prison in Hadda. On May 15, the Specialized Criminal Prosecution charged him with terrorist crimes; on September 15, the Specialized Criminal Court found him guilty but ordered his release for time served in detention. However, the Political Security Organization has refused to comply with this judicial order.

Hadi agreed to forward to Ghaleb al-Qamish, the head of Political Security, a Human Rights Watch letter pressing for him to review the matter. However, Hadi expressed concern about releasing an Al-Qaeda-related detainee, even after completion of his sentence, because of the risk he would resume terrorist activities.

As of February 3, al-Khawlani’s family said he was still in detention.

In response to concerns raised by Human Rights Watch, the Defense Ministry said it would immediately mark areas contaminated by mines in the Bani Jarmooz area, near Sanaa, which have injured a number of children. In May 2013, Human Rights Watch documented evidence that the Republican Guard, a former military division, planted antipersonnel mines there during the 2011 uprising, following fighting between the armed forces and local tribes. The use of such mines violates the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, to which Yemen is a party.

These mines have injured at least 15 residents, including 9 children and killed at least 1 child, but the government has not cleared the mines or marked the areas as contaminated. The Yemen Executive Mine Action Center, responsible for mine clearance, has told Human Rights Watch that it fears attacks from the local residents and requires military protection to carry out its activities. Unless it receives such protection, it will not travel to the area. On January 27, 2014, al-Akily told Human Rights Watch that while it could not provide de-miners with security, the ministry would start marking contaminated areas within 24 hours. Human Rights Watch has not yet confirmed whether this has happened.

The report also recommends that Yemen ratify a long list of international treaties, including the Rome Statute of the International Criminal Court, the International Convention for the Protection of All Persons from Enforced Disappearance, and the Convention on Cluster Munitions. al-Akily told Human Rights Watch that the Defense Ministry supported ratifying the cluster munitions treaty. Al-Zukaof the GPC said that his party supported all of these ratifications and would soon present a timeline for placing them on the agenda in parliament. On February 3, his party issued a public statement calling on the government and parliament to accelerate the ratification process of all the human rights conventions mentioned in the final report.

“Even with problematic recommendations, the National Dialogue report is an important achievement for Yemen,” Whitson said. “It’s now up to Yemen’s politicians to ensure that this achievement proves lasting.”