By Inna Lazareva
On Jan. 28, Yemen's President Ali Abdullah Saleh arrived in the United States to seek medical treatment for wounds received during his country's continuing civil strife. He left shortly after parliament passed a law last month granting him blanket immunity for any crimes committed during his 33 years in office. The law was part of a deal brokered by the countries of the Gulf Cooperation Council in order to ease Saleh out of power.
Not so fast, say some human rights activists. They're planning to bring Saleh to justice in a foreign court, where Yemen's laws don't apply.
International criminal law doesn't apply to sitting heads of state, and for the moment Saleh is still president. But that is about to change. On Feb. 21, 2012, Yemenis go to the polls to elect a new leader - and at that point, says Letta Taylor of Human Rights Watch, "authorities in another country can prosecute those suspected of serious human rights crimes in Yemen."
Fourteen years ago the arrest of the Chilean dictator Augusto Pinochet in London dramatically confirmed the principle of universal jurisdiction, already established in the wake of World War II. Today, with certain restrictions, any court around the world can issue arrest warrants for crimes against humanity, genocide, or war crimes. "Saleh may well be safe in Yemen for as long as he has immunity there," says British legal commentator Joshua Rozenberg. "But a former head of state has no immunity in a country that has not granted him special privileges. That's the message of the Pinochet case."
If Saleh is indicted, it's most likely to be for the use of live ammunition by security forces attempting to break up anti-government demonstrations. During the year-old uprising in Yemen, over 200 protestors have been killed and more than 1000 wounded, according to Amnesty International. The single worst incident occurred in March 2011, when security forces and government supporters opened fire on the protestors in the capital city of Sanaa, killing 52 people. In the flashpoint city of Taizz the death count includes 22 children, and international NGOs are reporting cases of medical facilities shelled. Protestors responded to the immunity deal by chanting "it is our duty... to execute the butcher." (In the Jan. 16 photo above, demontrastors are holding up a sign reading "no immunity.")
Nonetheless, the immunity law is unlikely to meet with serious challenge in Yemen. Saleh's notoriously powerful family still holds key positions of the government. With only one candidate (the current vice president) running in the presidential election, Yemen has a long way to go before it can veritably hold its own leaders to account.
Ibraham Qatabi, a Yemeni-American human rights activist who recently demonstrated with other Yemenis outside Saleh's New York City hotel, says that he and like-minded compatriots are "definitely intent on prosecuting Saleh," though he declines to provide details. "We're putting together a legal committee and gathering evidence. He must be prosecuted. If we don't set the terms right now, the corruption and the killings will just continue." Qatabi says that it's important to send the message that leaders should still be held accountable - even if their own countries won't do it.
On the other side of the Atlantic, the London-based Independent Yemen Group is working on the same initiative. Galal Maktari, Director of Projects, says that they hope to recruit "prominent human rights activists and lawyers" to build up their case against Saleh. "We are trying to access information about direct cases through Yemenis who have a relative or who have lost someone."
The most likely venue for a case against Saleh is London, which has become a favored location for the exercise of universal jurisdiction. In 1999 a London court gave a life sentence to Belorussian Nazi collaborator Anthony Sawoniuk on charges of genocide, and a July 2005 trial ended with a 20-year jail sentence for Afghan warlord Faryadi Sarwar Zardad, who was found guilty of torture and hostage-taking. Arrest warrants have also been issued against former Bosnian President Ejup Ganic and ex-Israeli officials, amongst others.
Dina El Mamoun, who covers Yemen for Amnesty International, says that an investigation against President Saleh can be opened by law enforcement authorities or by an individual. "Whether a charge is made or not depends on whether there is sufficient admissible evidence," she says. "So far, no conclusive evidence has come to light because there has never been any credible investigation into Saleh's conduct. No criminal procedure has been followed."
But Sareta Ashraph, a British lawyer who was worked on cases involving conflicts in Libya, Gaza, and Sierra Leone, says that universal jurisdiction offers "a lower bar" for starting proceedings against Saleh. Ashraph notes that reports from groups such as Amnesty International, though lacking the rigor of full-fledged legal investigations, "would be enough to potentially contribute to the issuing of an arrest warrant."
Yemeni activists are determined to prevent Saleh from escaping justice. "No regime that is willing to openly kill its own citizens who are peacefully protesting can also be expected to investigate its own crimes," says Qatabi. "Saleh is in charge of the security forces and the army. He has the obligation and the responsibility to protect his own people -- this is enshrined in the Yemeni constitution. The abuse and the killings are documented. This is something that cannot be disputed."
In addition to universal jurisdiction, Letta Taylor of Human Rights Watch points out that there are two other paths toward possible prosecution: Either a Yemeni citizen could challenge the immunity deal in Yemeni courts, or Yemen's incoming government could acknowledge the jurisdiction of the International Criminal Court over crimes committed under Saleh's rule. Given that Saleh's family continues to dominate the Yemeni government, both options appear unlikely.
Maktari, of the London-based Yemeni group, is not deterred. He says that his organization's aim is to show the Yemeni officials that they are not immune. "The mere fact that we are working on this, [that we] have formed a legal committee, is already achieving something. We want the Yemeni officials looking over their shoulders."