Yemen’s Draft Amnesty Law

Earlier this week, the Yemeni cabinet passed a draft amnesty law that, if adopted by Yemen’s parliament, would shield Yemen’s president, Ali Abdullah Saleh, and his aides, from prosecution.  The draft law is part of the implementation of a deal brokered by the Gulf Cooperation Council (GCC) last November after months of anti-government protests and government crackdowns that began in January 2011.  (For an interactive timeline of protests in Yemen, as well as governmental and international responses — and corresponding events in other countries affected by the Arab Spring — see here.)  Under the deal — signed by Saleh and Yemeni opposition leaders — Saleh agreed to transfer power to his vice president, Abed Rabbo Mansour Hadi.  Additionally, Saleh agreed to retain the title of president until presidential elections (now scheduled for February 2012), at which point he agreed he would step down in exchange for immunity.

A report published in September 2011 by the Office of the High Commissioner for Human Rights (OHCHR) — based on an OHCHR delegation visit to Yemen in summer 2011 — details the country’s human rights situation during the recent unrest.  The delegation found “an overall situation where many Yemenis peacefully calling for greater freedoms, an end to corruption and respect for rule of law were met with excessive and disproportionate use of lethal force by the state.”  Additionally, the report recommended that the Yemeni government:

Launch transparent and independent investigations, in line with relevant international standards, into credible allegations of serious human rights violations committed by the Government security forces, including, but not limited to, the killing of civilians, excessive use of force against civilians, arbitrary detention, and torture and ill treatment; ensure that perpetrators are held accountable. 

Partly because Yemen is party to eight international human rights treaties (as the OHCHR report notes), Navi Pillay, the United Nations High Commissioner for Human Rights, stated that the amnesty “would be in violation of Yemen’s international human rights obligations.”  (NGOs such as Amnesty International and Human Rights Watch also called on Yemen’s parliament to reject the draft law — see here and here.)  As Amnesty International notes, under these treaties, “Yemen is obliged to investigate and prosecute anyone suspected of such crimes where there is sufficient admissible evidence.”

As noted in this article authored by Yasmin Naqvi for the International Review of the Red Cross in 2003, the notion that domestic amnesty cannot fully shield a violator of international law from prosecution dates back at least to the post-World War I era.  The Commission on the Responsibility of the Authors of the War and on Enforcement and Penalties — formed in 1919 to determine who was responsible for World War I — concluded that “no trial or sentence by a court of the enemy country shall bar trial and sentence by the tribunal or by a national court belonging to one of the Allied or Associated States.”  (See here for the Commission’s final report.)

In modern times, this area of law remains complex.  An “express customary prohibition of amnesty has not yet crystallized,” as noted by Kate Allan in this article published by the Denver Journal of International Law and Policy.  But, Allan continues, “There is support for customary and treaty based duties to prosecute pursuant to the Geneva Conventions (GCs), and jus cogens norms including torture, genocide.”  For example, the International Committee of the Red Cross (ICRC) has articulated as a norm of customary international law in non-international armed conflicts that “the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.”

Additionally, according to the Rome Statute, a case is inadmissible to the International Criminal Court (ICC) if “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” or if “[t]he case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute” (see Article 17 of the Rome Statute).  But, Allan notes, the question of whether amnesties are permissible under Article 17 remains unresolved. 

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