Yemen: The CCYR comments on transitional justice draft resolution

During the workshop organized Feb 2012 by legal Affairs Ministry, with participation of several activists and revolution coalitions, the civic coalition of youth revolution (CCYR) presented preliminary comments on transitional justice draft resolution to the legal affairs minister, Mohammed al Mikhlafi

Preamble

Final draft resolution (FDR) No (   ) for 2012 on transitional justice and national reconciliation to be referred to the government to approve

Mr. President of the republic:

Having reviewed republic of Yemen constitution, Gulf Cooperative Council Initiative and transition mechanism implementation, both signed in Saudi capital Riyadh on Nov 23 2011

The (CCYR) commented as “the constitution has been cancelled and its effectiveness is pending by the initiative”

And on upon reviewing law No (1) for 2012 regarding granting immunity against legal and judiciary prosecution

The CC “the immunity is an aid to escape punishment and it contradicts concept of Transitional period“

The FDR continues “in view of the urgent need to put an end to the conflict among Yemeni people”

The CCYR “it is not acceptable to forgive persons who committed crimes against humanity and genocides and to let indebted people in prisons for being unable to repay”

… and considering suffering of citizens due to political conflict in the past and present, their right to have justice and re-compensation, and in confessing to need to understand past errors, build better future for all and guarantee human rights be not violated”

The CCYR “such a resolution is the worst of all past errors”

And confirming the political parties adherence to stop all forms of revenge, pursuit and avoid culture of retaliation, approve steps towards reconciliation, transitional justice, and guarantee abiding by good governance standards, law sovereignty and human rights respect”

The CCYR “do such standards and law sovereignty allow that smuggled money be not demanded and bringing corrupted people to justice so that the national economy damaging contracts, such as the liquefied gas and Aden port bargains, can be constitutionally challenged”

… and in conformity with values of forgiving and reconciliation that are deep-rooted in the heart of people of Yemen”

The CCYR “forgiving and reconciliation should come from the oppressor not from the oppressed”

… and in adherence to security and human rights councils resolutions with relevance to Yemen, especially the security council resolution No (2014) for 2011

The CCYR “the resolution in question did not stipulate non punishment and it did not identify transitional council”

… and upon the house of parliament approval, we issued the following law

The CCYR comments on transitional justice draft resolution presented to Ministry of legal Affairs

The most critical challenges facing any new political system in Yemens democratic change are big heritage of crimes against humanity, unforgivable crimes, several legislations violating basic principles of human rights with educational, military, security and media apparatuses designed to promote such violations, so what steps necessary to tackle such challenges by using transitional justice project?

The comment can fall into three parts:

I-Civil and criminal responsibility:

The civil and criminal responsibility principle means work for achieving comprehensive reforms within Yemen society. Reconciliation in question does not mean ” forgiveness” in the traditional sense of the word, instead, it is the avoid of culture of revenge and abiding by rule of law, whether punishment be penal or impanel “fines” or compensation that create a feeling of quietness.

The violations committed in Yemen are so widespread that the people involved in them are several throughout 34 years of the regime. Such a fact requires be considering so seriously and tackling in a way capable to achieve, first of all, justice, and full transition to civil democratic state, bringing reconciliation second, and discard culture of revenge, thirdly.

Some of the most important mechanisms to achieve reconciliation are as follows:

A-Fact-finding committee

The fact-finding committees have been an important development in transitional justice over past two decades. There are 21 committees in different parts of the world, for example, in Nigeria, Chile, Gotemala, Uganda, Bolivia, Erjoa, Zimbabwe, Nepal, Gava, Germany, Sri lanka, Haiti, Ecuador, and Sierra Leone etc

The fact-finding committees deal, in general, with two major cases. The first includes human rights violations in the countries that commit them in secret through hide the facts out of any internal or external organization or a world entity. The second includes countries exercising violations openly, such as Bosnia

It is noticed that the type of attacks in Yemen includes both cases. The regime exists for 33 years, which make the role of such committee so difficult due to a potential damage of information as a result of death of case parties from one hand, change or even conceal real facts from another, like what happened in Rwanda in the aftermath of 1994 when genocides resulted in damage of all public and private institutions.

The fact-finding committees should achieve these goals:

 Discover real truth of violations in an official manner.

Bring defendants to specialized criminal courts, or impose non penal punishment, compensations or offer amnesty.

Confess committed crime and claim responsibility.

Fulfill demands of victims, reconciliation, reject culture of retaliation.

Significance of relating amnesty with nature of fact-finding committee work, so amnesty coverage does not reach he who confessed not and offer excuses in public, like what South Africa resort to, when experienced such a field.

B- Public and private Amnesty

There are two types of amnesty:

1-public amnesty

It covers all criminals, irrespective of seriousness of these crimes. Senior officials of the regime are an exception.

Advocates of such opinion consider public amnesty as the single way to move to a new regime and it is the cost to get rid of a cruel regime, having put an end to past events and turn a new leaf.

Yet, such an arbitrary amnesty would create challenges on level of world law from one hand and on internal level from the other. The world criminal law principles do not allow an amnesty on serious crimes committed against humanity, war crimes, and genocides.

Sera Leone experience for 1999 is an example of failed amnesty within few months, when the RUF and UN peacekeeping forces attacked the opposition parties. The experience of Argentina also in 1983 which settled after a year of public amnesty law issuance, following election

 2- Specific amnesty

This type of amnesty differs from the previous in terms of content and application as it does not include all crimes irrespective of its seriousness. They are specific and not prohibited by world criminal law “war crimes and genocides, wars against humanity” on the basis of conditions like the forgiven person cooperates with the fact-finding committee to discover truth of the committed crimes. South Africa has applied such amnesty.

C-Compensations

The victims experienced some misfortunes, like death of their relatives in Yemeni prisons, physical injuries, difficult living and economic conditions as a result of those practices, or losing jobs in any form, are in need of material or moral compensation according to the world law principles. The compensations should be lucrative so that the victim can feel certain about his future and ease damage he suffered. They can be achieved on two levels:

 The material compensation includes reform damage, and return material properties along with all belongings, considering specificity of each case.

Moral compensation includes offering official apologies about committed crimes, preparing a memorial to the victims and building a national museum for all practices of late regime.

 Register names of victims to remind incoming generations of atrocities of Yemen regime.

 D-noncriminal punishments

The great deal of violations left by existing regime over 33 years cannot be tackled politically and economically in the same manner, through criminal courts. These violations need to be classified into serious ones that are covered under crimes referred to specialized criminal courts, forgivable violations, others needs compensating victims, fine imposing, social penalties. All these are called non-criminal punishments. So the nature of some practices, like preventing some persons from rights for racial or sectarian reasons may require imposing material punishments “fines” upon their committers, or depriving of some jobs or referring to retirement as a social penalty.

E- Criminal trial, court and probe boards formation

The formation of specialized national criminal courts should be considered to consider cases with world criminal dimension, to avoid filing to criminal courts.

It should be noticed that the principle of national specialized criminal courts formation with specializations include all crimes considered by world criminal court. These specializations also should include stipulation of local law. A specialized criminal court was formed in Rwanda in 1994 according to special legislation to trial anti-human crimes Hutto committers, who committed serious crimes against Tutsis. The courts completed procedures of the Tanzania world criminal court, yet they exercise their obligations in accordance to national law of Rwanda.

There is a need to judges, attorney generals, lawyers with practical experience in their professions, from one hand, and be trained in special world institutes to be able to do such tasks, from the other.

II-Reform legal system

Throughout Salehs former regime, the legal system was constantly and greatly disregarded, for violating human rights, confiscating freedoms, by means of legislations that do not benefit the regime which had great majority in the house of parliament. Important also is the adoption of national criteria to choose participants of the national dialogue conference and constitution committee abiding by world Declaration for human rights. The reconciliation board should be independent of any entity that might have had violations.

III-Institutional reforms

A-Judiciary

Transitional justice requires restoring prestige of judiciary through guaranteeing its independence and reviewing all laws that accomplish such justice. It also necessitate that legal elites be trained, in developing countries, on who to exercise judiciary.

B-Security Apparatuses and internal security forces

It is important to care about and to review restructure of such apparatuses, nature of its tasks, with aim of enhance relationship between them and citizens and cause these apparatuses to practically serve citizens. There is a need to clear these apparatuses from military penal laws and to change them into civil forces that treat citizens in a good manner. The security forces loyal to the regime should be merged into one system belongs to Ministry of Interior.

C- Prisons

We think punishment requires unite two goals into one:

Punishment for general and special protective procedures.

II- punishment as a rehab, according to rehab programs inside prisons

D- Information and Education

The system of Information and education was subject to laws and programs devoted to existing regime, which requires reviewing such valid programs and consequently modify them in accordance with democratic changes.

The reformed laws should consider following notes:

The project has touched upon fact-finding committees that would offer violations legitimacy, while neglecting importance of criminal justice and role of the new judiciary in achieving transitional justice that Yemen look for.

The draft focusing on national reconciliation underestimates victims rights to have justice and be recompensed to erase hatred left by decades of dictatorship and corruption

The new system should include review victims rights as a result of violations of forces other than political system, like victims of displace people of Jaashen

The draft resolution also neglected citizens violated rights during 1990 and was confined to mention these rights in discussing recommendations.

The project should include complaints of victims, especially victims of unforgivable crimes, and tackles them, irrespective of period in accordance with world law.

The transitional justice mechanisms prohibit, in a clear manner, repeat of such crimes in future, through implementing a number of procedures necessary to do justice to those victims.

Victims should be recompensed from looted money which must be returned.