The academic literature on transitional justice has long framed the concepts of peace and justice as being in tension: to achieve peace, we are told, the demands of justice must sometimes be sacrificed, or alternatively, to pursue postwar justice may put a fragile peace at risk. This presumed tension is increasingly being questioned, however, as new research inquires into the possible reciprocity of pursuing justice and building peace.
One week shy of this year’s International Day of Peace, the UN Human Rights Council (UNHRC) called on the Security Council to refer the warring parties in Yemen’s civil war to the International Criminal Court (ICC) for alleged war crimes. Initiating a criminal investigation with the prospect of issuing indictments in the midst of an ongoing armed conflict has become an increasingly common approach to transitional justice. Such threats of international legal sanction reflect efforts to deter further atrocities and to contribute to settling conflicts. In the case of the Yemeni civil war, it seems highly unlikely that the Security Council will make the requested referral given that three of its five permanent members—France, the United Kingdom, and the United States—have contributed to the war. Today, however, a growing number of states assert universal jurisdiction over war crimes like those alleged in the UNHRC report, leaving the threat of legal accountability for documented violations a credible peacemaking tool. Could such an approach to justice advance peace in Yemen?
Yemen’s recent history affirms the demand of accountability for past crimes, but also reveals the repeated sidelining of it in the name of a peace that has not materialized. If, however, peacemakers were to build upon and further the work that Yemeni activists are currently doing to promote social cohesion and reconciliation on the ground, pursuing justice could become a path to peace. Absent a shift in approach by formal peace brokers toward these forms of everyday peacebuilding, Yemenis will enjoy neither justice nor peace.
The aftermath of the 2011 popular uprising against the regime of former president Ali Abdullah Saleh presented an opportunity for justice following decades of increasing repression and civil disorder. That opportunity was quickly undermined, however, by an externally brokered agreement between Saleh and the formal opposition and by the political capture of the ensuing transitional process by partisan elites with little incentive to adopt meaningful changes. The transitional framework laid out in the Gulf Cooperation Council’s framework and adopted by the United Nations prioritized a smooth transfer of power in an effort to avoid a larger-scale civil war. The text of the implementation mechanism makes only one explicit mention of transitional justice and frames it not as an effort to establish accountability for past crimes, but as a means to “ensure that violations of human rights and humanitarian law do not occur in future.” The mechanisms through which to pursue transitional justice are left unspecified, and the relevant provision is tied to the National Dialogue Conference, a forum mandated by the transitional framework to deliberate on the future structure of the Yemeni state. Thus no autonomous justice reforms are mandated beyond anodyne reference to the need to ensure that “governmental functions … are fulfilled in an orderly manner in accordance with the principles of good governance, rule of law, human rights, transparency and accountability.”
At the same time, to secure the endorsement of the former ruling General People’s Congress (GPC) for an uncontested candidate for transitional president, the parliament extended amnesty to Saleh, who founded the GPC, and his closest associates. This spurred a series of dramatic protests in more than a dozen provincial capitals. Ignoring the protesters, the transitional government pursued a minimal lustration process. The GPC not only remained intact, but Saleh continued to play a powerful role as transitional spoiler.
Meanwhile, transitional president, Abed Rabbo Mansour Hadi, worked to consolidate a power-sharing 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. 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 that received little international attention. The frustrated demand for transitional justice in the form of accountability, acknowledgement, and perhaps reparative measures did not cause the current war, but sidelining activist demands in the interest of “peace” did contribute to Yemenis further divesting from state institutions as a guarantor of rights.
These observations might appear to align with the view of some that a poorly executed transition can be a cure worse than the disease, but that argument, too, can be challenged by Yemen’s history. The 1994 civil war—short-lived and infinitely less destructive than the current war—was not followed by efforts at reconciliation or transitional justice. Instead, postwar institutional restructuring served only to further consolidate the power of the regime, leading to grievances that festered for twenty years and contributed to the demand for independence by the Southern Movement and now the Southern Transitional Council.
If moments of transition are ruptures where old ideas and institutions are radically reconsidered, there is misplaced faith in the assumption that such ruptures lead only or directly toward democratic or liberal ends. Indeed, both 1994 and the period between 2012 and 2014 represent moments in which transitional justice was never seriously or credibly pursued by those with the power to implement democratic reforms, but was instead used to consolidate unaccountable power in ways that fueled further conflict. By dismissing or subverting demands for justice, decision makers during both periods contributed to the very violence and social disorder to which they claimed to be responding.
The fears of civil war and deterioration that drove Yemenis to accept a flawed agreement in 2011 have long since come to fruition, with Yemen in dire need of an agreement to end the punishing conflict and to address the humanitarian crisis generated by it. Precedents from past conflict in Yemen show that an end to fighting is in itself insufficient to address citizens’ demands for accountable governance. Instead, decision makers need to more genuinely consider what role justice can or should play in supporting an alternative to the unremitting suffering of the past five (or thirty-five) years and in building a better future.
The hard work of marrying peacebuilding and transitional justice will not be advanced through international criminal prosecutions by the ICC, though the threat of individual liability may motivate war’s antagonists to work harder for peace. Retributive justice of the sort sought through the ICC is also not particularly effective in promoting reconciliation, social cohesion, or requisites of sustainable peace. As the scholar Nevin Aiken has argued, post-conflict reconciliation requires “social learning” that allows former antagonists to develop mutual trust, but such learning is predicated on addressing structural and material conditions. Institutions of transitional justice can (but do not by definition) provide generative opportunities to address the structural sources of conflict and thereby enable social (re)learning.
The good news is that some social (re)learning is already underway in Yemen. Non-combatant actors excluded from formal negotiations have nonetheless been engaged in the difficult work of civil action, whereby they work with diverse others to meet community needs in a way that constitutes a kind of everyday peacebuilding. As research teams at the Center for Applied Research in Partnership with the Orient and other organizations are increasingly documenting, Yemenis are undertaking such work in the face of demanding conditions, both in coordination with a range of local authorities and independently. Individuals and organizations are reaching across sectarian, tribal, generational, and other lines. They negotiate with local authorities to broker creative solutions to issues ranging from securing access to water, food, and medicine to combatting the recruitment of child soldiers and increased rates of child marriage. They are also involved in more forward-looking efforts, such as helping build infrastructure to enable economic activity for women, train and support a free media, and assist in reconstruction.
Through these endeavors, Yemenis are already doing some of the work that non-judicial institutions of transitional justice often provide after wars end, creating opportunities to repair relationships torn by conflict and furthering the process of relearning that contributes to social cohesion. The challenge now is to recognize such efforts—as well as the work of Yemenis documenting and amplifying it—as a substantive component of peacebuilding and to better align formal diplomatic approaches with them.
Rather than viewing an internationally brokered process as “bringing” peace and peace-supporting institutions to Yemen, peace brokers should learn from, support, and scale up existing peacebuilding practices. This would be consistent with a victim-centered approach to transitional justice, expanding the agency of all who have suffered in the civil war. Such an approach would take a cue from Yemenis themselves, for whom #YemenCantWait is not a media strategy, but a lived reality.
Author bio: Stacey Philbrick Yadav is associate professor and chair of the Department of Political Science at Hobart and William Smith Colleges in Geneva, New York, and serves on the board of the American Institute for Yemeni Studies and the Center for Applied Research in Partnership with the Orient (CARPO). She has most recently co-authored the CARPO Brief “The Role of Women in Peacebuilding in Yemen” (with Iman al-Gawfi and Bilkis Zabara) and is currently completing a book on past and present efforts at transitional justice in Yemen.
Translator : N/A
Editor : Robin Surratt
Photographer : Nisreen Nader
YPC nationwide representative survey, April–July 2019. Data cited in this paper is drawn from this survey unless otherwise indicated.
 UN News “Humanitarian crisis in Yemen remains the worst in the world, warns UN” Feb 2019. https://news.un.org/en/story/2019/02/1032811 (Accessed 3 March 2020).
 Wadhah Al-Awlaqi and Maged Al-Madhaji, Rethinking Yemen’s economy: Local governance in Yemen amid conflict and instability, July 2018. https://devchampions.org/files/Rethinking_Yemens_Economy_No2_En.pdf (Accessed 8 March 2020); Mansour Rageh, Amal Nasser, and Farea Al-Muslimi, “Yemen without a Functioning Central Bank: The Loss of Basic Economic Stabilization and Accelerating Famine,” Sana’a Center for Strategic Studies, November 2016. http://sanaacenter.org/publications/main-publications/55 (Accessed 23 May 2018).
Data source: OCHA, “Humanitarian needs overview 2019: Yemen”, December 2018. https://yemen.un.org/sites/default/files/2019-08/2019_Yemen_HNO_FINAL.pdf (Accessed 11 March 2020).
 Final report of the Panel of Experts on Yemen, addressed to the President of the Security Council, January 2020. https://undocs.org/S/2020/70 (Accessed 11 March 2020).
 Mareike Transfeld, “Implementing Stockholm: The Status of Local Security Forces in al-Hodeidah,” YPC Policy Report, Yemen Polling Center, Policy Report, November 2019. http://www.yemenpolling.org/Projects-en/ICSP_EU_HodeidahReport2019November30.pdf (Accessed 16 February 2020).
 Mareike Transfeld and Shaima Bin Othman, “The State of the Police in Western Yemen”, YPC research debrief, Yemen Polling Center, Research Debrief, January 2020. https://www.yemenpolling.org/4325/ (Accessed 16 February 2020).
 Amnesty International, “Yemen: Fierce new offensive displaces tens of thousands of civilians from Hodeidah” May 2018. https://www.amnesty.org/en/latest/news/2018/05/yemen-fierce-new-offensive-displaces-tens-of-thousands-of-civilians-from-hodeidah/ (Accessed 5 March 2020).
 Maged Sultan, Mareike Transfeld and Kamal Muqbil, “Formalizing the Informal State and Non-State Security Providers in Government-Controlled Taiz City,” YPC Policy Report, Yemen Polling Center, July 2019. https://yemenpolling.org/advocacy/upfiles/ICSP_EU_FinalTaizReport2019July19.pdf (Accessed 16 February 2020).
 Nadwa al-Dawsari , “Tribal Governance And Stability In Yemen “, The Carnegie papers, Carnegie endowment (April 2012). https://carnegieendowment.org/files/yemen_tribal_governance.pdf (Accessed 5 March 2020).
CIVIC, “We Did Not Know If We Would Die From Bullets Or Hunger” Civilian Harm and Local Protection Measures in Yemen “, Jan 2019, https://civiliansinconflict.org/wp-content/uploads/2020/01/YEMEN_BulletsorHunger_FINAL_PROOF.pdf (Accessed 5 March 2020).
 Fatima Saleh and Ahmed al-Sharjabi “Institutional Prerequisites for the STC “Coup” in Aden and Perspectives on the Jeddah Deal” , research debrief, Yemen Polling Center, Oct 2019. https://www.yemenpolling.org/institutional-prerequisites-for-the-stc-coup-in-aden-and-perspectives-on-the-jeddah-deal/ (Accessed 16 February 2020).
 Human Rights Watch, “Yemen: Riyadh Agreement Ignores Rights Abuses”, December 2019, https://www.hrw.org/news/2019/12/12/yemen-riyadh-agreement-ignores-rights-abuses Accessed 5 Mar 2020; Human Rights Watch, “Yemen: UAE Backs Abusive Local Forces” June 2017.