Yemen: Whose Law?
Due process is not a priority in Yemen, a country ‘ruled by the law of emergency’, experts say.
This is part two of a two-part article on counterterrorism strategy in Yemen.
Yemen – “He went shopping one day and he was kidnapped from the street,” says Khaled al-Anesi, a Yemeni human rights lawyer, of his client Sharif Mobley, a US citizen who claims to have been tortured in jail under the supervision of his own government and has been missing for the better part of a year.
“They came in plain clothes; he thought they were tribal kidnappers and he tried to run away. They shot him and arrested him, brought in US investigators who threatened to kill him and to rape his wife. He was beaten up; they broke his leg.”
It is hard to tell whether or not Mobley, an American citizen who moved to Yemen in 2008 to study Arabic, was actively involved with al-Qaeda in the Arabian Peninsula (AQAP), the Yemeni wing of the extremist group. No evidence has been produced to date, his lawyer says.
Mobley was in contact with Anwar al-Awlaki, a fellow American who was AQAP’s spiritual leader and propagandist-in-chief, who was killed in a drone strike in 2011. According to Anesi, Mobley met the Yemeni-American Muslim leader in New York in the early 2000s, when he was based there – Awlaki moved back to Yemen in 2004. Mobley emailed Awlaki to ask him for hospital recommendations for his pregnant wife, Anesi says.
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Not that it matters now. In March 2010, while attempting to escape the hospital where he was being held, Mobley allegedly shot and killed a guard. The terrorism charges he was being held under were dropped, and he is now in jail awaiting trial for murder.
Anesi has not seen his client in a number of months, and Mobley has missed at least five trial hearings because the security services have failed to bring him to the courthouse. The government will not tell him where he is being held. “What they did under Yemeni law, and under the Yemeni constitution, they did not have any right to arrest him, to shoot him,” says Anesi.
One of the Americans told him, 'Here in Yemen there are no constitutional rights. We can do whatever we want.' And they did.
A government official said his case has been delayed because of strikes in the judicial system – something people familiar with the case say is not true. They argue, as Anesi does, that judges have been ready to hear the case on a number of occasions but Mobley was not made available for the hearings. The official admits, however, that the “process should be moving faster”.
“One of the Americans told him, ‘Here in Yemen there are no constitutional rights. We can do whatever we want.’ And they did,” Anesi says.
Mobley’s Kafkaesque story has probably only come to light because he is an American rather than a Yemeni citizen. His is just one of dozens of similar cases, says Belkis Wille, a Yemen and Kuwait researcher at Human Rights Watch. “In the context of the global ‘war on terror’, Yemen is not alone in this,” she says. “Certain countries involved in Yemen are not exactly pushing Yemen to make due process a priority.”
Yehya al-Mawri, a well-known Yemeni judge who played a leading role in the creation of a formal judicial system in Yemen during its early days as a republic, worries that Yemen has fallen into a state of deep disintegration. “In Yemen, the law and international law certainly doesn’t give anyone the right to just kill someone,” he says. “It is against the law, absolutely, to kill people without a trial, but we are now in a country that is ruled by the law of emergency. America has made the rules.”
He points to legislation enacted in the United States after the events of September 11, 2001, including the Patriot Act and the notorious Authorisation for the Use of Military Force (AUMF), a law passed in the wake of the attacks on the Twin Towers that has been described as providing the legal basis for a “war without end”. The AUMF is widely seen as having been used to suspend many American laws on human rights, but also as having had a huge impact on the way countries like Yemen approach issues of rule of law.
“It is a big problem, when an outside country comes and does what it wants,” Mawri says. “It hurts the judicial system; it makes it weak. It tells the society that there is no law to protect them. People say that judges cannot protect themselves, let alone the people. It is a great shame.”
Rather than allow cases against them to be processed through the court system, the Yemeni and US governments have often utilised informal, “customary” or tribal law to settle any cases of alleged wrongdoing, preventing victims and their families from bringing their cases to local or international courts.
This has led many Yemenis to look to the more durable institution of tribal law, Mawri says. “The law now is in the hands of the tribes and the sheikhs,” he says. In many ways, tribal law “was made especially for the case” of drone strikes and extrajudicial killings, he argues. “It is mainly focused on the process of reparations. Where the government pays an amount that the tribes are happy with, sometimes the tribes share the money with their neighbours.”
The government official, who agreed that the courts were in a “state of disarray”, says: “A number of government officials are calling for legitimising the informal tribal system in the remote regions … to address the grievances in tribal areas.”
But Nadwa al-Dawsari, a Yemeni researcher based in the US who focuses on tribal law, argues the opposite. Using tribal law to settle disputes for this purpose and preventing those involved from accessing the formal justice system might undermine customary law, she argues – because beyond negotiating payments, sheikhs can do little to mitigate the impact of drone use.
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| Family members of drone-strike victims say the justice system has failed them [EPA] |
“[Tribal law] is used to resolve revenge killing, tribes versus tribes,” Dawsari says. “But tribes aren’t used to things like drone strikes… When the people from these areas, who are already angry, see the sheikhs being involved in these blood money settlements, they see the sheikhs as not really taking a stand against them. It does affect the sheikhs’ legitimacy.”
A new constitution for Yemen could see the use of drones being banned. Members of a hand-picked committee have recently been working on an initial draft of a new constitution, based on more than 1,800 recommendations made during a 10-month series of peace talks held in Sanaa in 2013 and 2014. The conference was part of Yemen’s transition process, which is backed by the US government, among others.
Abdubari Dogaish headed the committee that dealt with transitional justice issues at the talks, which drew to a close last January. Among the recommendations made by his group was a law that would give victims of drone strikes the right to take the people behind such attacks to court and effectively criminalise the use of drones. But he worries that the constitution could just end up being a piece of paper.
“When we talk about the gap between the constitution and the reality of regulation, one of the reasons for [the 2011 uprising] was the gap between the law, what it said, and what happened on the ground,” Dogaish says.
Since the conference drew to a close, he says, there has been no attempt whatsoever at shifting security policy towards the recommendations that were made. “After the NDC [National Dialogue Conference], the number of people being killed is higher than all the previous years because there is not a responsible government approach,” he says.
Dogaish wants to see a more holistic approach to counterterrorism strategy in Yemen. “At the NDC we didn’t look at [counterterrorism] from just a legal and military perspective but as an economic, a social issue, from the perspective of imams inside the mosque,” he says. “It’s also important when we try to create a strategy that the international community, especially the US, should ask how we Yemenis benefit from the strategy.”
A national security strategy that addresses these concerns is supposedly in the works, but when Al Jazeera approached several western and Yemeni officials over its content, they said that they were yet to see a draft of the programme.
The government has continued to focus on a military approach, meanwhile, as evidenced by a decision in 2013 to move almost all responsibility for counterterrorism activities to the defence ministry, shifting specialist units from the interior ministry, effectively signalling that counterterrorism efforts were to remain a military, rather than a police matter. US military advisers helping President Abd Rabbu Mansour Hadi to restructure the security forces are said to have pushed for the move over the concerns of the European Union, which is supporting efforts to reform policing in the country.
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A counterterrorism law the government has been trying to pass through parliament gives Sanaa even more powers to suspend basic rights, while doing little to build in accountability for operations that have gone wrong.
The law directly contradicts a number of provisions made during the dialogue conference and has been criticised by people including Houra Mashour, who was until recently Yemen’s minister of human rights.
“[It] will not work,” Dogaish says of the approach being taken by the Hadi administration. “In fact, it might mean more terrorism.” The message sent by the lack of transparency over civilian casualties may actually be helping, rather than averting terrorism, he argues, and is undermining efforts to present the Hadi administration as democratic or accountable.
“Whenever it is proven that there have been civilian casualties, there hasn’t been a sincere approach to the people in admitting that a mistake has been made,” he says. “It is as if they are not even citizens.”
In response to the issues raised in this article, the government official, who is briefed on counterterrorism operations but is not authorised to speak publicly, says: “Yemen is witnessing a serious debate in the public sphere and inside government institutions on the topic of drones. [The national dialogue] outcomes called for the end of the drones programme and the parliament echoed the same message. Rule of law requires a fully functioning stable state with strong legal and law enforcement institutions, but unfortunately, the latter is absent at this phase of the political transition.”
Part one was published on December 21.