VI. Flawed Investigation

The state prosecution’s investigation into the Friday of Dignity massacre was marred by political interference, a failure to follow leads that might have implicated government officials, and factual errors. That investigation became the basis for a trial into the killings that began September 29, 2012, in the First Instance Court for the Western Capital District in Sanaa.

President Saleh dismissed Attorney General Abdullah al-Ulofy shortly after al-Ulofy demanded the arrests of key suspects, including government officials. Prosecutors failed to question—much less charge—top officials whom multiple witnesses implicated in the attack, or security chiefs such as Brig. Gen. Yahya Saleh, until December 2012 the de-facto leader of the CSF, whose anti-riot unit failed to properly respond to the attack.

Of 78 suspects named as defendants in the prosecution’s June 29, 2011 indictment, 34 are listed by the court as fugitives from justice, including all the alleged masterminds. Lawyers for the victims allege that the whereabouts of many of the missing defendants are known and that the authorities have made no serious effort to find them.[154]  The victims’ lawyers also allege that nearly all of the eight defendants who are detained were bystanders, peripheral accomplices or even, in one instance, a case of mistaken identity.[155]

The indictment does not specify how many of the defendants are security or government officials, or from which units or agencies. Lawyers for the victims allege the vast majority of those considered fugitives are security or government officials, or members of former president Saleh’s GPC.[156]

Even Justice Minister Mushid al-Arshani said on the first anniversary of the attack that “the real perpetrators escaped and only their accomplices and supporters are in jail.”[157]

In an interview with Human Rights Watch, replacement Attorney General Ali Ahmad Nasser al-Awash, who retained his post under President Hadi, denied that his office or others in the Saleh government interfered in the case.  “We moved forward with the investigations as best we could,” al-Awash said.[158]

The attorney general blamed any weakness in the case on “the refusal of witnesses and victims’ relatives to cooperate with the investigation,” and on General al-Ahmar, the commander of the First Armored Division, who he said “may” not have turned over all weapons or other evidence that the protesters confiscated after they tore down the wall.[159] General al-Ahmar, in a separate interview with Human Rights Watch, denied any interference.[160]

Al-Awash acknowledged that the suspects included security force members and government officials but said he did not know how many, telling Human Rights Watch: “As the attorney general I do not go into the details of this case.”[161]

For 18 months, victims’ families boycotted pre-trial hearings to protest flaws in the case.

The families began supporting the proceedings in September 2012, after their lawyers prepared a motion that called on the court to order the Public Prosecution to reopen the investigation and indict top officials including former president Saleh, as described later in this report.

However, that motion had its own flaw: it included as an attachment a memo allegedly from the Interior Ministry implicating top government officials in arming loyalists around the time that armed groups began attacking protesters. However a separate court, the Specialized Media Court, had five months earlier ruled that the memo was fraudulent.[162] The motion did not note the controversy surrounding the document’s authenticity.

The alleged memo, dated February 5, 2011 and purporting to be from Interior Minister al-Masri to Brig. Gen. Tariq Saleh, who at that time commanded the Presidential Guard, asked the Presidential Guard commander to approve a list of people who would be “in charge of distributing weapons” to Saleh loyalists.[163]

Political Interference

President Saleh fired Attorney General al-Ulofy in April 2011 after it became apparent that the attorney general was actively investigating the Friday of Dignity case.

Though regarded as a Saleh loyalist, al-Ulofy had asserted his independence regarding the protests and the investigation into the case in the weeks before his dismissal. On February 24, for example, al-Ulofy called on security forces to protect protesters participating in peaceful rallies.[164]  

On March 23, after state-run Yemen TV reported that al-Ulofy accused the political opposition of responsibility for the Friday of Dignity attacks, al-Ulofy in a phone call to Change Square publicly denied the report.[165]

On March 26, the opposition Ain News website posted an undated document bearing President Saleh’s signature and the presidential seal, in which the president barred interrogation of Mahweet Governor Ahmad al-Ahwal, as well as one of his sons and his guards, in connection with the attack.[166] As noted previously, gunmen used al-Ahwal’s house as the key staging area, and the governor’s two sons, both ranking security officials, are the top two defendants in the killings.

The memo, addressed to then-Interior Minister al-Masri, stated:

There will be no interrogation of Ahmad Ali Mohsen al-Ahwal, his son, or his guards.  Any orders by the attorney general against them are to be frozen.  There is no objection to detaining other suspects in the case and referring them to the prosecution.[167]

Alleged memo from President Saleh ordering no questioning of the Mahweet Governor Ahmad al-Ahwal, his son, or his bodyguards, that was posed on Ain News.             

The Saleh government never denied issuing the memo. A spokesman for the current Yemeni government emailed Human Rights Watch that it was unable to confirm or deny the memo’s authenticity, and added that a national commission of inquiry was “crucial to sort the facts from the lies.”[168]

On April 3, al-Ulofy called the state of emergency that Saleh had declared immediately after the attack “unconstitutional.”[169]

On April 13, al-Ulofy threatened to resign if the Interior Ministry did not question and arrest top suspects, including government officials, according to opposition media and lawyers for the victims.[170]

Two weeks later, on April 28, President Saleh fired al-Ulofy and replaced him with al-Awash.[171]

Allegations of False Testimony

Prosecutors tried in some cases to change testimony or threatened to charge witnesses as suspects if they did not adapt their testimony to the prosecution’s version of events, defendants’ lawyers said.[172]

Elham Sharaf Abu Taleb, the mother of suspect Ayman Yahya Badr, 19, said that when she went to the prosecutor’s office to inquire about her son, an official there asked her to place her fingerprint on a piece of paper to help gain her boy’s release.

“The prosecutor . . . asked me to put my fingerprint on a paper and said this will help free my son, so I did,” she told Human Rights Watch. “I still don’t know what was on that paper because I can’t read or write.”[173]

Later, Taleb said, she learned that the paper was testimony falsely stating that she had seen another suspect, Basem Abd al-Ghani Muhammad Hamoud al-Harethi, a member of a prominent family, heading toward the wall on the day of the attack with a gun.

“I have never seen him holding a weapon,” Taleb said. “He was standing right around the corner with my sons and others near the qat market, that’s all.”[174]

Muhammad al-Bawraki, a defendant released on guarantee—a form of bail in Yemen in which an influential person, such as a relative, tribesman or businessman, takes responsibility for a suspect pending the outcome of a case—told Yemen news media that prosecutors jailed him for refusing to testify against people whom he did not know. The media quoted al-Bawraki as saying that one district attorney “told me I have to testify against those people if I want to be released. When I refused, he sent me to prison for four months.” [175]

Failure to Question Top Officials

As detailed above, the testimony gathered by the prosecution included dozens of eyewitness allegations that security chiefs and other government officials played a role in planning and carrying out the Friday of Dignity killings. Yet the prosecutors did not call in most of the top-ranking government officials named by these witnesses for questioning.

For example, prosecutors did not question Brig. Gen. Yahya Saleh, the former CSF chief-of-staff, or then-interior minister al-Masri, ostensibly his supervisor, about the withdrawal of CSF forces from the area around the wall the night before the attack, and their insufficient response once the shootings began.

Nor did they question Farwan, the head of Judicial Inspection Authority at the time of the attack, and other officials who witnesses said were involved in planning the formation of armed neighborhood committees near the wall.[176]

The prosecutors also did not question al-Ahwal, governor of Mahweet, whose house was the main staging area for gunmen as they fired on protesters and whose sons Ali and Ghazi were indicted for shooting at protesters. Governor al-Ahwal was on the original list of 127 suspects but prosecutors dropped him from the indictment, citing “lack of evidence.”[177]  

Mahweet residents protested his continued tenure and the Mahweet governorate council on May 1, 2011 approved a resolution seeking his removal because of his alleged role in the killings.[178] At this writing, the governor remained in his post.

Prosecutors also did not question General al-Ahmar, the commander of the First Armored Division, whom they accuse of failing to deliver all suspects captured on the day of the attack to the prosecution.[179] Nor did they question Major al-Mikhlafi from the First Armored Division, whom prosecutors originally listed as a suspect but never indicted. In testimony to prosecutors, witnesses had alleged al-Mikhlafi led a group of plainclothes gunmen who were firing from the rooftop of a honey store near the wall.[180]

The failure to question key officials was not for lack of time. Prosecutors handed up their indictment after only three months—one-half the six months allowed by law to complete their investigation.

Primary Suspects Remain at Large

Only 8 of the 78 suspects in the Friday of Dignity Massacre were in custody at this writing. Most of the eight were menial workers, security guards, or students.[181] Lawyers for the victims allege that the detained defendants are scapegoats who are either innocent or played at most a peripheral role, and who remain jailed simply because they lack political clout.

The indictment listed 31 defendants, including ranking security officials alleged by prosecutors to have played a key role in the attack, as fugitives from justice who had never been apprehended.  Nearly all of those 31 are among 52 suspects indicted on the most serious charge, firing gunshots with intent to kill.  Criminal trials conducted in absentia generally violate the right of a defendant to present an adequate defense and to contest the evidence and witnesses. Exceptions would include cases in which the defendant absconded after the proceedings had begun.[182]

Another 39 defendants were freed on their own recognizance or on guarantee.[183] Twelve of those freed defendants also were missing at this writing; despite repeated orders from the trial judge for the authorities to locate all defendants and ensure they attend court proceedings, only 27 of those not being detained appeared at the last  session, on November 28, 2012. 

The eight jailed defendants have attended most trial hearings, where they are held in a cage as is traditional during Yemeni trials for serious crimes. At the trial opening on September 29, 2012, the detained defendants rattled the bars of their cage and shouted, “Let us out! The innocent are jailed and the guilty are free!”[184]

The jailed defendants included a homeless man with severe vision impairments and a disoriented appearance who insisted his name is Muammar Ali Hussein al-Hout—not Muammar Nagi Ali al-Hout, the name that appears on the indictment. Al-Hout is charged as one of the shooters in the attack.

During a jailhouse interview with Human Rights Watch, al-Hout, who has been detained since July 2011, freely admitted he had been living in a tent in Tahrir Square, the encampment in Sanaa for pro-Saleh protesters. He said he initially had been jailed for drinking and stabbing a man who tried to steal his money and cellphone.[185]

Defendant Muammar Ali al-Hout on September 29, 2012, during a hearing in Sanaa into the Friday of Dignity attack. Al-Hout says his full name is Muammar Ali Hussein al-Hout, not Muammar Nagi Ali al-Hout, the name on the indictment. © 2012 Letta Tayler/Human Right Watch

When al-Hout was brought to court weeks later for what he thought would be a sentence of 80 lashes for that incident, the judge unexpectedly returned him to jail as one of the shooters, al-Hout said. Two lawyers who are representing al-Hout without charge confirmed this version of events to Human Rights Watch. [186]

Al-Hout said he lacks identification papers to prove his identity—a common problem in Yemen:

 

I have never been to Change Square. I even cried in court and broke down. I was really shocked. I know it is hard to believe that a man like me is innocent because of how I look, but I swear I am a very simple guy and my only problem is drinking. I have never held a gun in my whole life.[187]

In September, a judge ruled that al-Hout could be released if he can prove his identity, but al-Hout said that he is estranged from his family and “I don’t know anybody who can come identify me.”[188]

Another jailed suspect is a detained 65-year-old garbage collector, Khaled Said Ahmad Batarfi, who prosecutors say helped set fire to the wall where the protesters were shot. In two interviews with Human Rights Watch in September 2012, the first in a prison and the second one from his courtroom cage, Batarfi was often incoherent, contradicted himself and appeared disoriented. [189]

Defendant Khaled Said Ahmad Batarfi, a garbage collector, during a hearing in Sanaa on September 29, 2012, into the Friday of Dignity attack. © 2012 Letta Tayler/Human Right Watch

At this writing, Batarfi was being detained in the military prison although he had no role in the armed forces. 

During the September 29 hearing, Judge Abulwali al-Shabani reminded Batarfi that he had granted him release on guarantee in July. “But I can’t find a guarantor!” Batarfi cried.  He told Human Rights Watch he had no way to contact his relatives to assist him because the authorities confiscated his cellphone, glasses and identity card during his arrest and never returned them.

One suspect, driver Saleh al-Jibri, testified that neighborhood leader Aqil al-Bawni and local resident Walid Hussein Hassan al-Nimri, who is charged with shooting with intent to kill, paid him 1,000 Yemeni Rials (US$46) to drive them to obtain materials to burn tires at the wall.[190] Al-Jibri was charged as an accomplice, while al-Bawni was not charged at all.

Another detained suspect, Muhammad Ahsan Ali Zait, a 27-year-old accountant, told Human Rights Watch that protesters seized him while he stood in the doorway of a pharmacy where he worked in the Duba commercial center, one of the buildings from which gunmen shot at protesters.

Speaking from the cage in the courtroom, Zait said that he was at the pharmacy and went to the door and began filming with his camera once he heard sounds of the attack:

Protesters grabbed me and stabbed me in the back and legs and they tried to cut my throat with a jambiyya [a traditional Yemeni dagger that men commonly wear in their belts]. I was charged with firing at the protesters with an AK-47. But all I had was a camera and a laptop.[191]

Further Errors in Probe

Human Rights Watch has additional concerns about the authorities’ handling of the case:

• Several defendants were initially questioned as witnesses and subsequently received notice that they had been indicted only on the day they were charged, their lawyers said. The Yemeni legal system requires prosecutors to give suspects an opportunity to rebut charges before they are formally indicted.[192]
• Based on the written testimony that the Public Prosecution filed with the court as part of its indictment, it appears that prosecutors questioned many suspects and witnesses without verifying their identities.
• Prosecutors indicted many suspects on the basis of testimony that they carried weapons, although many men in Yemen own and use guns, including assault rifles such as Kalashnikovs.
• Defendants’ lawyers showed Human Rights Watch numerous factual errors in the indictment files, some of them substantive. Many names of witnesses or suspects are incomplete or incorrect, including the name of one of the top defendants, the Mahweet governor’s son Ghazi Ahmad Ali Mohsen al-Ahwal. Instead, the charge sheet lists a similar name that the defendants’ lawyers say is that of Ghazi al-Ahwal’s 10-year-old son.[193]
• The list of 127 wounded includes at least four people who testified that they were not wounded on that day but during other attacks on protesters. [194] Five other wounded appear to be listed at least twice but with slight variations to their names. [195]
• A motion filed by lawyers for the defendants alleging that the final page of testimony was fraudulently inserted was pending at this writing in a Sanaa appeals court.[196]