About This Report
Unpunished Massacre
February 12, 2013

VII. Steps Toward Accountability

Yemen has an obligation under international law to investigate and appropriately prosecute serious violations of human rights. The UN Human Rights Committee, the international expert body that monitors compliance with the ICCPR, has stated that where serious rights violations have occurred, governments “must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant.”[197]  While there are particular complications involved in providing accountability for the Friday of Dignity attack and other human rights violations in Yemen, legal avenues do exist for bringing those responsible to justice.

One major obstacle to prosecutions is the immunity law that Yemen’s parliament passed in January 2012 in exchange for then-President Saleh’s resignation. The law grants the former president complete immunity and all those who served with him immunity from prosecution for any crimes, except terrorist acts, committed in the course of their duties during his 33-year rule.[198] Even if the court presiding over the trial of those allegedly responsible for the Friday of Dignity attack were to order a new investigation that led to the indictment of additional government officials, these officials would likely seek to use the immunity law to challenge their prosecution.

The grant of immunity runs counter to Yemen’s obligations under international law.[199]  The UN secretary-general has opposed amnesties for recognized international crimes.[200] Thus, even though the immunity law contains a clause barring appeal or annulment, the amnesty’s validity could be challenged in Yemeni courts.[201]

The UN Security Council and the UN High Commissioner for Human Rights have both called for comprehensive, independent, and impartial investigations consistent with international standards into alleged human rights violations during Yemen’s 2011 uprising, and for “all those responsible” to be held to account.[202] The UN Human Rights Council also has expressed support for such investigations and has said it will monitor Yemen’s progress in carrying them out.[203]

Indicting Ex-President Saleh and Aides

On October 13, 2012, lawyers for Friday of Dignity victims filed a motion in the First Instance Court for the Western Capital District that they described as a possible first step toward challenging Yemen’s immunity law.[204] The motion seeks the indictment of at least 11 additional defendants for the shootings, including former president Saleh and his nephew Gen. Brig. Yahya Saleh, the former CSF chief.[205]

The motion asks the court to order a new investigation, accusing the Public Prosecution of ignoring the complicity of top government officials in the attack. It also requests an immediate travel ban on the 11 officials it wants indicted.[206]

In addition to former president Saleh and Brig. Gen. Yahya Saleh, the motion seeks the indictments of Tariq Mohammed Abdullah Saleh, another of the former president‘s nephews and at the time of the attack the commander of the Presidential Guard; Maj. Gen. Abd al-Malik Tayeb, the former CSF commander; Mutahar al-Masri, the former  interior minister; Abdullah Farwan, the former president of the Judicial Inspection Authority; Mahweet Governor Ahmad Ali al-Ahwal; Abd al-Rahman al-Akwaa, Saleh's brother-in-law and the former mayor of Sanaa; Ahmad Nasser, a district director in the Political Security Organization; Abd al-Rahman al-Kuhlani, a retired army officer and GPC council member; Muhammad Ahmad al-Claiba, an army officer; and the entire leadership of the CSF in Sanaa and of General Security for western Sanaa.[207]

At a trial session on November 28, Judge al-Sanabani said the motion appeared to conflict with the immunity law and sent it to the constitutional division of the Supreme Court for guidance.[208]   The lead lawyer on the motion objected that those accused in the motion should first file a response.[209]  As of mid-January 2013, Judge al-Sanabani had held no further proceedings in the trial and the Supreme Court had not issued a response to the motion.

International Paths to Justice

Individuals implicated in the Friday of Dignity attack could also be prosecuted in other countries or possibly by the International Criminal Court (ICC). Many countries have universal jurisdiction laws that permit prosecutions of non-nationals for crimes in violation of international law, such as torture and crimes against humanity, that took place in another country. The parliamentary grant of immunity has no legal effect outside of Yemen, as acts of a foreign legislature do not bind another sovereign state.[210]

The International Criminal Court in The Hague is a possible venue for the prosecution of Yemenis who are implicated in crimes against humanity and war crimes.[211] Yemen is not a member state of the Rome Statute, the treaty establishing the ICC.[212] However, Yemen could ratify the treaty, or accept the retroactive jurisdiction of the ICC through a formal declaration even without becoming a state party to the statute.[213]The Rome Statue also empowers the UN Security Council to refer situations to the ICC for consideration.[214]

Push for Inquiries and Compensation

In September 2012, President Hadi signed a decree authorizing the creation of a commission of inquiry to investigate human rights violations during the 2011 uprising, including the Friday of Dignity attack, and to recommend accountability measures such as prosecutions of those responsible or compensation to victims. The decree calls for the commission to be independent and impartial and adhere to international standards, and authorizes it to hold government officials in contempt for refusing to cooperate with investigations.[215]

On the eve of the first anniversary of the Friday of Dignity shootings, President Hadi had issued a separate decree ordering the creation of a compensation fund for victims of all attacks during the uprising. The fund is to disperse monthly stipends equivalent to a soldier’s pay—about 20,000 Yemeni Rials, or US$93— for those severely disabled and for families of those killed as well as medical costs at home or abroad for the severely wounded.[216]

In November 2012, the Administrative Court of First Instance in Sanaa ordered the government to immediately create the fund and begin payments.[217] But at this writing the fund still had not been created.

The government in the meantime has provided one million Yemeni Rials (US$4,672) to relatives of each person killed in the uprising, 500,000 Yemeni Rials (US$2,336) to each disabled person, and 360,000 Yemeni Rials (US$1,682) to each person requiring medical treatment, according to the Wafa Organization, which was distributing the funds.  At this writing some victims were still awaiting payment. Wafa said the government gave similar sums to soldiers injured a suicide bombing in Sanaa in May 2012.[218]

If ultimately passed, a transitional justice bill stalled at this writing in Yemen’s parliament also would authorize the creation of a commission to investigate major human rights violations during 2011 and possibly as far back as 1978.[219]

These commissions and funds could provide invaluable functions of truth-finding and redress for victims—part of the range of measures set forth by the UN in its definition of “transitional justice.”[220]  However, neither the commission of inquiry nor the transitional justice bill would in and of itself supersede the immunity law. As such, they should be seen as complements to rather than substitutes for prosecutions for serious crimes.

Yemen also has allowed the UN Office of the High Commissioner for Human Rights to open an office in Yemen to provide technical assistance and report back to the commissioner on the human rights situation in the country.[221] While this step could help prevent future rights violations, it is also not a substitute for prosecutions.

Fair prosecutions—whether in domestic, foreign or international proceedings—are also important for reasons beyond a state’s international legal obligations. Holding those responsible to account for serious violations of international human rights law and international humanitarian law may help restore dignity to victims by acknowledging their suffering. Prosecutions also help deter a culture of impunity that encourages future abuses.[222]

Without these steps, the changes that hundreds of Yemenis lost their lives to achieve and that the transition government has promised will remain incomplete.

[197] Human Rights Committee, General Comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, adopted on March 29, 2004, para. 18.

[198] “Yemen grants Saleh immunity to try to end crisis,” Reuters, January 21, 2012, http://www.reuters.com/article/2012/01/21/us-yemen-idUSTRE80K0B120120121?feedType=RSS&feedName=topNews&rpc=71 (accessed November 24, 2012).

[199]The trend in international law is that state amnesty provisions must be considered void if they attempt to amnesty serious crimes in violation of international law, because such provisions are contrary to states’ obligations to combat impunity for serious violations of international human rights and humanitarian law. Many precedents were set in Latin America. For example, the Inter-American Court of Human Rights has held that Peru’s blanket amnesty law, which discouraged investigations and denied any remedies to victims, was invalid. See Inter-American Court, Barrios Altos Case, judgment of March 14, 2001, Inter-Am. Ct. H.R., (Ser. C) No. 75 (2001), paras. 41-44. The Inter-American Court also held that Brazil’s amnesty law is “incompatible with the American Convention [on Human Rights] and void of any legal effects.” See Inter-American Court, Gomes-Lund et al. (Guerrilha do Araguaia) v. Brazil, November 24, 2010,http://www.unhcr.org/refworld/docid/4d469fa92.html. Similarly, the Inter-American Commission on Human Rights has found that amnesty laws in Chile and Argentina do not satisfy a state’s duty to prosecute and are incompatible with the American Convention on Human Rights. See Inter-American Court, Garay Hermosilla Case, Case 10. 843, Report No. 36/96, Inter Am.Ct.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev. at 156 (1997), October 15, 1996, http://www.unhcr.org/refworld/docid/3ae6b71a4.html; Inter- American Court, Case Nos. 10.147, 10.181, 10.240, 10.262, 10.309, 10.311, Report No. 28/92, Inter-Am.C.H.R., OEA/Ser.L/V/II.83 Doc. 14 at 41 (1993), October 2, 1992, http://www.unhcr.org/refworld/docid/3ae6b6d434.html (all accessed December 30, 2011). Article 4 of Yemen’s immunity law of 2012 bars appeal or annulment.

[200]The UN’s Rule-Of-Law Tools for Post-Conflict States state that “United Nations staff, whether in Headquarters or in field operations, may never condone amnesties that international law and United Nations policy unite in condemning.” See Office of The United Nations High Commissioner for Human Rights, “Rule-Of-Law Tools For Post-Conflict States: Amnesties,” HR/PUB/09/1, 2009,http://www.ohchr.org/Documents/Publications/Amnesties_en.pdf (accessed December 13, 2011).

In 2004, then-Secretary-General Kofi Annan wrote in his report on the rule of law and transitional justice in conflict and post-conflict societies that “United Nations-endorsed peace agreements can never promise amnesties for genocide, war crimes, crimes against humanity or gross violations of human rights.” See Report of the Secretary-General, “The rule of law and transitional justice in conflict and post-conflict societies,” S/2004/616, August 24, 2004, http://www.unrol.org/files/2004%20report.pdf (accessed January 25, 2013), para. 10.

Jamal Benomar, a special advisor to UN Secretary-General Ban Ki-moon, informed all parties of that policy while facilitating President Saleh’s November 23 agreement to transfer power. See First Report of the Secretary-General Pursuant to Security Council Resolution 2014 (2011), November 28, 2011, para. 12 (copy on file with Human Rights Watch).

[201] Yemen’s Constitution authorizes the Supreme Court to rule on the constitutionality of laws. Article 51 says Yemenis can go to court to “protect their rights and lawful interests.” Article 153 of the Constitution empowers the Supreme Court to strike down unconstitutional laws.

[202] “Pillay says Yemen situation ‘dangerous,’ urges all parties to halt abuses,” Office of the High Commissioner for Human Rights news release, September 22, 2011, http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11413&LangID=E, (accessed September 25, 2012). See also UN Security Council Resolution 2051 (2012), adopted June 12, 2012, https://www.un.org/News/Press/docs/2012/sc10671.doc.htm (accessed November 24, 2012).

[203] Technical Assistance and Capacity-Building for Yemen in the Field of Human Rights, Human Rights Council resolution 19/29, adopted March 23, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/A_67_53_en.pdf, (and resolution 21/22, adopted on September 27, 2012,  http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_21_L30.doc (accessed January 25, 2013).  

[204] Human Rights Watch interviews with Friday of Dignity victims’ lawyers including Hizam al-Moraisi, Sanaa, October 13, 2012.

[205]Motion for Additional Indictments, pp. 1-2. .

[206] Ibid.

[207] Ibid.

[208] The constitutional division consists of seven Supreme Court judges including the chief justice. See UN Development Program, Programme on Governance in the Arab Region - Yemen: Judiciary, http://unpan1.un.org/intradoc/groups/public/documents/un/unpan023187.pdf,  Sect. 2.3.

[209] The lawyer was Hizam al-Moraisi. Human Rights Watch attended the November 28, 2012 trial session.

[210]For example, an amnesty passed in the state where the crime was committed has been held not to bind courts in the United Kingdom, which have the discretion not to apply the amnesty law to crimes that, through treaties (such as the Convention against Torture), the UK government has committed itself to prosecuting. See the reasoning of Lords Steyn and Nichols in R v. Bow Street Magistrates Court; ex parte Pinochet (No 1), (25 Nov. 1998), [1998] 4 All ER 897 at 938 (Lord Nicholls) and 946-7 (Lord Steyn). In France, the French Supreme Court held that a foreign amnesty law has effect only in the territory of the state concerned, and that recognizing the applicability of a foreign amnesty law in France would be tantamount to a violation by the French national authorities of their international obligations, and to a negation of the principle and purpose of universal jurisdiction. See Cour de Cassation, decision N° de pourvoi : 02-85379, October 23, 2002, in the case against Mauritanian national Ely Ould Dah, available online at http://www.legifrance.gouv.fr/.

[211]The ICC was established to deliver justice for serious violations of international criminal, such as war crimes and crimes against humanity, where national courts are unwilling or unable genuinely to investigate or prosecute. See Rome Statute, arts. 12-13.  The Rome Statute defines crimes against humanity as one of a number of criminal acts, including murder, “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Ibid. art. 7.

[212]Yemen signed the Rome Statute on December 28, 2000, but has not ratified the treaty.

[213]See Rome Statute, arts. 11(2), 12(3), http://untreaty.un.org/cod/icc/statute/romefra.htm.

[214]See Rome Statute, arts. 11-13.

[215] “Decree on 2011 human rights violations issued,” Saba News, September 22, 2012, http://www.sabanews.net/en/news281871.htm (accessed September 22, 2012). A copy of the decree, No. 140 of 2012, is on file with Human Rights Watch.

[216] “President Hadi issues a decree designating victims of the peaceful revolution 'martyrs' and paying them salaries,” al-Masdar (Arabic), March 18, 2012, http://almasdaronline.com/article/29865  (accessed December 10, 2012).

[217] “Court verdict requires government fund injured revolutionaries’ care,” Yemen Times, November 14, 2012, http://yementimes.com/en/1625/news/1611/Court-verdict-requires-government-fund-injured-revolutionaries%E2%80%99-care.htm (accessed December 6, 2012).

[218]Human Rights Watch interviews in Sanaa with Shawqi al- Maimooni, president of the Wafa Organization, December 11, 2012, andAbdu Wasel, executive director of the Wafa Organization, January 23, 2013.

[219]Yemeni cabinet members and members of Parliament are divided over whether the law should apply to violations since the formation of the republic in 1978, the 2011 uprising, or a date in between.See “[Prime Minister Muhammad] Basindwa entrusted with resolving crisis on Transitional Justice Act,” al-Masdar (Arabic), http://almasdaronline.com/article/40244 (accessed January 10, 2013).

[220]Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, S/2004/616, August 24, 2004.

[221]Technical Assistance and Capacity-Building for Yemen in the Field of Human Rights, Human Rights Council resolution 19/29, adopted March 23, 2012, http://www.ohchr.org/Documents/HRBodies/HRCouncil/A_67_53_en.pdf, and resolution 21/22, adopted on September 27, 2012, http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_21_L30.doc.

[222]Human Rights Watch, Selling Justice Short: Why Accountability Matters for Peace, July 9, 2009, www.hrw.org/node/84264.