Stacey Philbrick Yadav, Hobart and William Smith Colleges
Why raise the issue of transitional justice in the middle of an ongoing, seemingly-stalled war in Yemen? Transitional justice is associated, not incorrectly, with periods of post-conflict or post-authoritarian transitions to more open societies and accountable state institutions. In her genealogy of the concept of transitional justice, however, Ruti Teitel has argued that we have arrived at “steady state” entrenchment of transitional justice such that it is increasingly common to see justice measures implemented in the midst of ongoing conflict.[1] This has allowed some practitioners to approach transitional justice instrumentally as one of several tools in the peace-broker’s toolkit.[2] It might be seen as a means of unfreezing frozen conflicts like the war in Yemen.
September’s call by the UN Human Rights Commission for the UN Security Council to refer parties to the Yemen War to the International Criminal Court on the basis of alleged war crimes is a demonstration of one such effort to apply this tool.[3] Lodging transitional justice’s peacebuilding power in international criminal justice, however, draws on only one relatively narrow conception of justice. Alone, it may help to promote a cessation of hostilities and break the stalemate of this frozen conflict; but unless peace-brokers recognize and draw more genuinely on some of the everyday peacebuilding done by Yemenis in their local communities, it is unlikely to produce a more durable transformation of the conflict and could even jeopardize such work by hardening lines that can be more fluid on the ground.
Role of transitional justice in peacebuilding
According to Teitel’s genealogy, “what was historically viewed as a legal phenomenon associated with extraordinary post-conflict conditions now increasingly appears to be a reflection of ordinary times,” with a retributive criminal justice approach instantiated through the establishment of a permanent International Criminal Court.[4] The logic of international criminal justice involves both rear-looking assignment of individual liability and a forward-looking effort to deter future gross violations of human rights. As early as 1993 with the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), international criminal prosecutions have been framed as a Chapter VII measure suitable for use during conflict as a means of restoring peace.[5] The presumed deterrent effect of such mid-conflict prosecutions has been empirically challenged, however, and critics of international criminal justice have rightly observed that the small number of selective prosecutions raises as many questions about justice as it resolves.[6]
Legal amnesties, meanwhile, which in many ways “epitomize an obstacle to justice,” have also been used as mid-conflict instruments to secure peace. In Yemen, the transitional power-sharing agreement that brought an end to the 11-month uprising against former President Ali Abdullah Saleh was made possible only through a promise of amnesty for Saleh and his closest relatives and associates. The use of amnesty as a negotiator’s peace-brokering tool has been endorsed by the United Nations in Yemen and in at least four other recent conflicts in other regions.[7] The narrowness or breadth of an amnesty, however, speaks to their intended role in brokering vs. securing peace. When amnesties are narrow and conditional, they can play an instrumental role in incentivizing negotiations between antagonists. When they are broader, they are often used to promote truth-telling as part of a longer and more durable process of social reconciliation, but may also encourage a kind of “culture of amnesia” justified as necessary to moving on.[8]
Truth-seeking measures (such as truth and reconciliation commissions, investigatory bodies, and forms of “public history”) also play a powerful role in transitional justice, but are far less likely to be engaged as part of a peace-brokering process designed to end war. Instead, they more often feature as part of the process of post-war reconciliation, and are thus deferred by international peace-brokers to a later date. One exception to this may be so-called “preservative justice,” where efforts are made to secure documentation of war crimes or other gross human rights violations before a conflict has ended. Such documentation can be put to immediate use as a justification for sanctions, as was the case with the Caesar Act in response to documented abuses by the Asad regime in Syria or it can be held for future use in post-conflict trials, commissions of inquiry, or reparations programs. Documentation can also contribute to the threat of legal action and a form of public embarrassment meant to compel negotiations in a frozen conflict.[9] The UN Human Rights Commission’s documentation of five years of abuses during Yemen’s current war can be interpreted in this way, irrespective of whether the Security Council acts on its recommendation to refer parties to the ICC.[10]
At stake in all of these transitional measures are complex questions related to the construction of victimhood, blame, and agency. Amnesties may acknowledge that harm was done to victims even as they vacate legal liability. Who is held accountable legally will depend on how victimhood is constructed, and whether it requires the perception of innocence on the part of victims. When transitional justice takes the form of trials or tribunals, the individualization of blame risks exculpating the many, and “may actually obfuscate culpability for either historical or contemporary wrongs, which were actually inflicted by victimized communities.” [11] By contrast, non-judicial truth-seeking institutions can – but do not automatically – accommodate more nuanced and “messier” understandings of victimhood and perpetration appropriate to cases of sustained civil conflict like the current war in Yemen. This can create conditions of possibility through which former antagonists can engage in the kind of social (re)learning that is generative of more inclusive shared identities and supports conflict transformation beyond the scope of mere co-existence.[12]
Uncertainty about the relative effectiveness of different approaches to transitional justice would matter far less if there were not also some reason to worry that poorly-executed approaches can cause additional harm or sometimes even advance unjust outcomes.[13] Mariam Salehi and Timothy Williams have attempted to use qualitative case analysis to identify multiple causal pathways toward a “peace dividend” through transitional justice.[14] Their analysis offers two findings of relevance to the case of Yemen. First, they show that the literature itself is marked by methodological differences that actually shape scholars’ substantive claims. Quantitative research on transitional justice tends to overstate the significance of trials to securing lasting peace, whereas qualitative case studies place strong emphasis on the reparative work of truth and reconciliation and other non-retributive measures.[15] Second, their use of QCA set-theoretic techniques suggests that peace is most likely to obtain where there has been a trial following a military victory, or where there has been a broad amnesty.[16] This is relevant for Yemen insofar as a military victory is not attainable in this conflict, and the UNHRC’s call to refer parties to the ICC is coming not at the end of war (with or without an amnesty) but as a kind of war-time justice intervention.
In this way, it might be situated as a part of the “justice cascade” described by Kathryn Sikkink almost a decade ago, which identified a growing normative acceptance of international criminal accountability for perpetrators of human rights violations.[17] Yet this normative acceptance has been met with efforts to securitize international justice. The rejection of ICC jurisdiction by some states, the reliance on the Security Council to refer parties to the ICC, and recent legal and administrative attacks on the chief prosecutor herself all render international criminal justice partial in all senses of the term.[18]
Opportunities (missed) for meaningful transitional justice in Yemen
The ICC is not the only path, nor is this the first or only way, in which Yemenis have engaged with the question of transitional justice. Before considering the role that transitional justice might or might not be able to play in conflict transformation in Yemen, it is worth briefly reviewing some examples from Yemen’s near-past of justice efforts that were denied or derailed.
The aftermath of the 2011 uprising in Yemen presented an opportunity for justice following decades of increasing repression and civil disorder; that opportunity was quickly undermined, however, by features of an externally-brokered agreement and its political capture by partisan elites with little incentive to adopt meaningful changes. The transitional framework itself prioritized a smooth transfer of power in an effort to avoid the development of a larger-scale civil war such as the one that appeared to be developing in Syria at the time. The agreement’s text made only one explicit mention of transitional justice, and framed it not as an effort to establish accountability for past crimes but as a forward-looking means to “ensure that violations of human rights and humanitarian law do not occur in future”[19] The mechanisms through which transitional justice ought to be pursued were unspecified, and deferred for deliberation as a part of a cumbersome National Dialogue Conference. This meant that no autonomous justice reforms were mandated beyond a generic call to ensure “governmental functions…are fulfilled in an orderly manner in accordance with the principles of good governance, rule of law, human rights, transparency and accountability.”[20] How this was to be done – and how it was to be done by a transitional government with more international legitimacy than domestic authority – was unclear.
In order to secure the former ruling General People’s Congress endorsement of an uncontested candidate for transitional President, Yemen’s parliament – last elected nine years earlier – extended legal amnesty to the former president and his closest associates.[21] This was consistent with the UN’s preference for limited and conditional amnesties over blanket amnesties,[22] but nonetheless spurred a series of dramatic protests staged in more than a dozen provincial capitals across the country. Moreover, while it was a limited amnesty aimed strategically at negotiating President Saleh’s departure from power, it was not a terrifically conditional amnesty. When paired with only a very minimal lustration process, the General People’s Congress not only continued to exist as a party to powersharing, but the former President himself continued to play a powerful role within the party’s leadership (if formally outside of power).
Meanwhile, transitional President Abd Rabbuh Mansour Hadi worked to consolidate a government, restore some semblance of security, and oversee an ambitious National Dialogue Conference aimed at a comprehensive reorganization of the country’s political and economic institutions. At best, the transitional period from 2012 to 2014 failed to achieve these aims.[23] Given the lack of genuine justice reforms, the government faced ongoing activist mobilization, strikes, and civil disobedience in the form of a months-long “parallel revolution” throughout the public sector.[24] The frustrated demand for greater transitional justice in the form of accountability, acknowledgement, and perhaps reparative measures, did not cause the current war, but it did contribute to the pervasive insecurity that grew over the course of the transition, costing more Yemeni lives than the 11-month uprising itself. Sidelining activist demands in the interest of “peace” fueled a climate in which many Yemenis further divested from state institutions as a guarantor of rights.
These observations might initially appear to align with the concern of some scholars that a poorly-executed transition might not be worth the risk. But that argument, too, can be challenged by Yemen’s history, as well as consideration of peace-brokering processes that sidelined justice in the name of moving on.[25] The 1994 civil war – short-lived and infinitely less destructive than the current war – was followed by no effort at reconciliation or transitional justice. Instead, the institutional restructuring that followed served only to further consolidate the power of the regime, fueling grievances that festered for 20 years and contributed to the eventual secessionism of the Southern Movement and, now, the Southern Transitional Council.
This example highlights that moments of post-conflict transition cannot be teleologically assumed to orient only or directly toward democratic or liberal ends. Indeed, both 1994 and 2012-14 represent moments in which transitional justice was not seriously or credibly engaged by those with the power to implement reforms – in the former case because military victory meant that Northern political forces did not feel the need to credibly engage Southern demands, and in the latter because an internationally-brokered agreement did not prioritize it. By ignoring demands for justice or actively subverting them, decision-makers in both periods contributed to the very violence and social disorder to which they claimed to be responding.
Victim-Centeredness and the Work of Everyday Peacebuilding
If it is unlikely to produce a peace divided through international criminal justice, how might a more genuine engagement with transitional justice help Yemen to break out of frozen conflict? One way would be to focus on indigenous peacebuilding, rather than external peace-brokering. The forward-looking purpose of criminal liability is designed to compel negotiations at the top and deter additional atrocities by warring antagonists. But this is still a top-down approach that understands peace as beginning with the cessation of war. There are developments ongoing during the war itself that serve the purposes of social cohesion and community reconciliation and do some of the identity work that is associated with post-conflict social re-learning and conflict transformation.[26] These developments range from local efforts at documentation that contribute to preservative justice; to commemorative work by artists that constitute forms of acknowledgement; to local service provision and conflict mediation that address the need for material and symbolic justice in the absence of fully functioning state institutions.
That this work is going on during the war is remarkable, but it is under-remarked: international peace-brokers at the UN level, especially, focus narrowly on the warring antagonists and overlook the everyday peacebuilding work in which Yemenis are already engaged. As McEvoy and McConnachie argue, justice work not only needs to be more victim-centered, but it needs a more complex understanding of victimhood and perpetration that originates not in listening to or speaking for, but speaking to those in affected communities.[27] This is essential, they argue, for maximizing victim agency in transitional justice praxis.[28] It is not enough to “listen” to non-combatant Yemenis about what they need or look for from a negotiated peace. Instead, peace-brokers need to be speaking to everyday peacebuilders who are doing this work already.
Here there is a role for research organizations that provide critical linkages through which Yemeni peacebuilding is given explicit attention. A small number of international research organizations like the Center for Applied Research in Partnership with the Orient adopt intentionally-designed collaborative models that allow Yemeni researchers to contribute co-equally to knowledge-production about the war in a way that itself constitutes Yemeni peacebuilding work. The newly-launched Yemen Policy Center similarly shifts the role of Yemeni researchers from providers-of-data to analysts who participate in claims-making. This kind of “action research” has enabled Yemeni researchers to conduct research on everyday peacebuilding in Yemen and to connect it to more formal peace-brokering institutions and actors. [29]
Both of these organizations, as well as other Yemeni-led organizations like the Sana’a Center for Strategic Studies, Mwatana Organization for Human Rights, and even consultancies like Deep Root or Yemeni Youth Without Borders, deliberately showcase work going on in local communities across Yemen by non-combatant actors whose activities are more than survival tactics but exhibit attributes of civil action that advance justice claims relevant to any top-down process of peace-brokering. Using surveys, focus group discussions, interviews, and participant-observation, their reports describe Yemenis in different parts of the country navigating relationships with diverse local authorities and systems of governance to meet essential community needs. They highlight changing attitudes toward self and other as people go about the everyday work securing livelihoods and serving their families and repairing their communities in inventive ways – despite (or because of) the stalled nature of the formal peace-brokering process. The activities of civil actors described by such research – and the civil action of conducting this research itself – co-contribute to knowledge production and claims-making by Yemenis who are otherwise sidelined by the negotiating process.[30]
The challenge now is to both recognize this work as substantive peacebuilding and better align formal diplomatic approaches with that work. This is essential in the context of a conflict like the one in Yemen which appears frozen at the formal diplomatic level and unresolvable through military means alone. It was an organization of Yemeni mothers of abductees that ultimately broke the stalemate over a long-stalled prisoner exchange in October, highlighting the capacities of non-combatant civil actors to move the needle on this frozen conflict. More genuine integration of Yemen’s civil actors – their claims, their research, and their practical capacities – would be consistent with a more victim-centered approach to transitional justice that expands the agency of those who have suffered in Yemen’s civil war. Such an approach requires that peace-brokers recognize first and foremost the work of myriad Yemeni peace-builders and learn from them.
[1]Ruti Teitel, Globalizing Transitional Justice: Contemporary Essays, Oxford University Press (2014), 63-65.
[2] Lia Kent, “Transitional Justice and Peacebuilding,” in An Introduction to Transitional Justice, Olivera Simic, ed. Routledge (2017): 201-222.
[3] Missy Ryan, “UN report calls for alleged war crimes in Yemen to be referred to International Criminal Court,” Washington Post, September 10, 2020.
[4] Teitel 2014, 63.
[5] Rachel Kerr, “International Criminal Justice,” in Introduction to Transitional Justice, Olivera Simic, ed. Routledge (2017), 50.
[6] Duncan McCargo, “Transitional Justice and Its Discontents,” Journal of Democracy Vol. 26, no. 2 (2015), 6.
[7] Fijalkowski (2017), 116-117.
[8] Chandra Lekha Sriram, “Unfinished Business: Peacebuilding, accountability, and rule of law in Lebanon,” in Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants, edited by Chandra Lekha Sriram, Jemima Garcia-Godos, Johanna Herman, and Olga Martin-Ortega. London: Routledge (2013), 127.
[9] Teitel (2014), 57.
[10] United Nations Human Rights Commission, “Situation of human rights in Yemen, including violations and abuses since September 2014,” advanced unedited version, September 14, 2020.
[11] Kieran McEvoy and Kirsten McConnachie, “Victims and Transitional Justice: Voice, Agency, and Blame,” Social and Legal Studies Vol. 22, no. 4 (2013), 503.
[12] Nevis Aiken, Identity, Reconciliation, and Transitional Justice: Overcoming Intractibility in Divided Societies, Routledge (2014), 27-28.
[13] McCargo (2013), 7.
[14] Mariam Salehi and Timothy Williams, “Beyond Peace vs. Justice: Assessing Transitional Justice’s Impact on Enduring Peace using Qualitative Comparative Analysis,” Transitional Justice Review Vol. 1, no. 4 (2016), 93-123.
[15] Salehi and Williams (2016), 99.
[16] Salehi and Williams (2016), 119.
[17] Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing Global Politics. New York: W.W. Norton (2011), 5.
[18] Human Rights Watch, “US Sanctions International Criminal Court Prosecutor,” September 2, 2020.
[19] “Agreement on the Implementation Mechanism for the Transition in Yemen in Accordance with the Initiative of the Gulf Cooperation Council (GCC),” Article 21(f), May 21, 2011, 7.
[20] “Agreement on the Implementation Mechanism,” Article 15(c), 5.
[21] Ibrahim Fraihat, Unfinished Revolutions: Yemen, Libya, and Tunisia after the Arab Spring, Yale University Press (2016), 69-70.
[22] Agata Fijalkowski, “Amnesty,” in Introduction to Transitional Justice, edited by Olivera Simic. Routledge (2017), 113.
[23] Sheila Carapico and Stacey Philbrick Yadav, “The Breakdown of the GCC Initiative,” Middle East Report 273 (2014).
[24] The term is elaborated on by one prominent Yemeni activist here: “Yemen’s Ongoing and Parallel Revolution,” Notes by Noon, January 4, 2012. Accessed September 18, 2020.
[25] Sriram (2013), 122.
[26] Aiken (2014).
[27]McEvoy and McConnachie (2013), 498.
[28] McEvoy and McConnachie (2013), 500.
[29] The foundational paper for this project outlines the scope and research questions that the teams addressed. Coordinating the work in Ethiopia in the summer of 2019 allowed the Yemeni and non-Yemeni team members to design the work jointly through intensive in-person work where they could communicate freely about the kinds of practical and political constraints associated with the work. The Yemeni researchers then carried out the field research in the summer and fall of 2019 using teams of researchers able to conduct interviews, focus groups, and participant observation in different parts of the country; the international partners, who had access to the mundane needs of scholarship, such as unrestricted libraries, uncensored internet, and regular electricity, generated non-field based components of the project in the winter of 2020, and the papers were published serially in the spring. This kind of collaboration was constructed as partnership, cognizant of the power dynamics at play in the process of knowledge-production and the different kinds of restrictions faced by Yemeni and non-Yemeni scholars.
[30] Marie-Christine Heinze and Stacey Philbrick Yadav, “For a durable peace in Yemen, inclusion must mean more than simply a voice for civil actors,” Responsible Statecraft, June 8, 2020.