There are many moves afoot within Yemen and internationally that dispute the unprecedented immunity deal for 33 years of Saleh’s crimes as well as that of his cohorts. However, the Yemeni parliament, that has been sitting since 2003, when it was elected to a four year term, was scheduled for elections in 2009 and voted itself a two year extension into 2011. I am checking but I can’t find anyone who recalls a new law being issued where they voted themselves another term extension.
(Update: the 2009 law grants a two year extension until they elect a new parliament in 2011, ambiguous language at best.
Update 2: a handy link from Yemen Parliament Watch that indicates parliament is operating outside the scope of the law: “The report indicated that the constitutional period of the parliament ended in February 2011 where the parliament had finished its six years stipulated constitution as well as the additional two years.”
Update 3: there is also a stipulation in the constitution that parliament can be extended when facing war, natural disaster or unrest, but I’m assuming that had to have been done formally, and within the scope of the term, not by some GPC mind meld.
Update 4: the amnesty was issued while Parliament was legally on vacation or in recess.)
Original post continues: A political deadlock ensued following the 2006 presidential election wherein the GPC thwarted the implementation of a proportional representation system (as opposed to a “winner takes all” single district method) and other electoral reforms, prompting the opposition JMP to boycott parliament altogether. Without the implementation of the previously agreed upon reforms, the parliament voted itself a two year extension and rescheduled elections for 2011. (In order to thwart elections in 2011, the SCER also disqualified the voter rolls en mass.) There was no new parliamentary election in 2011 and no official law passed rescheduling the election and extending their terms as far as I know. Therefore there is no legitimate Yemeni parliament, just a bunch of old men stuck to their chairs for a decade.
So where is the legal foundation of this expired parliament’s vote to give the Sanaa regime immunity? More fundamentally, the people withdrew legitimacy from the Parliament, the Sanaa regime and dysfunctional political party system through a year of mass nationwide protests.
However, while many are working on the issue of Saleh’s immunity, I am much more concerned with the implementation of the proportional representative system in order to undermine the hegemony of both the GPC and Islah who were both artificially empowered by the GCC plan. Proportional representation will allow for the growth of new parties, minority representation and probably more women in political office. It appears that the only way to get the task done is through a public referendum, as the same illegitimate GPC dominated parliament that stalled on the issue for five years will likely continue to block it.
The proportional system has a national consensus, and it has been repeatedly been endorsed by a variety of Yemeni groups from the JMP in 2005 to the tribally based National Dialog Committee in 2009 to the Yemeni Youth Revolution that took to the streets in 2011.
Had the PR system been enacted as agreed upon in 2006, allowing for authentic political growth and representative parties to compete in 2009, the revolution might not have been necessary. So its important not to allow history to repeat itself, especially with this crucial and long overdue element of the overall package of electoral reform.
There is more on the other illegalities of the unprecedented and illegal amnesty plan below from Human Rights Watch and the YCTJ:
By The Yemeni Center for Transitional Justice Concerning the Approval of the House of Representatives of the Immunity Law
The Yemeni Center for Transitional Justice reviewed the law approved by the House of Representatives (Parliament) of the Republic of Yemen concerning the award of immunity to the President of the Regime of Ali Abdullah Saleh and his supporters. As YCTJ confirms its previous position with respect to this law, that the law lacks the minimum principles of human justice, and is openly in violation of honorable Islamic Jurisprudence, international laws, and is in breach of the international human rights conventions/agreements to which Yemen is signatory, YCTJ now also calls for the application of real true transitional justice without any selectivity, forgery or deliquescent.
Only in this manner can the rights of the families of the victims for accountability and liability of perpetrators of violations of the foregoing crimes and infractions be protected, and to resort to international institutions to present the criminal perpetrators, participants or contributors to such crimes, or those who assisted the perpetrators from escaping from punishment, to face just trials in international judicial frameworks, as well as to judicially and legally pursue these perpetrators everywhere. Accordingly, there is no immunity or obstacle that stands in the way of this inalienable right, which is guaranteed by all heavenly scriptures, human statutes and legal systems, based on the principles of justice and equality, and in confirmation of the provisions of the relevant international conventions and agreements thereto, and as fulfillment of the minimal rights of safeguarding human beings, in terms of their blood (life and physical harm), their property and honor/dignity.
YCTJ urges all official local and international entities not to overlook the previously perpetrated crimes, also to work diligently to expose the truth of these crimes in full details and present and report them to the public. This should be considered as fundamental prerequisite to all calls for forgiveness, pardon and national reconciliation based on transitional justice, which aims to address the infractions of the past period and to avoid repetition thereof in the future.
YCTJ implores the members of the Yemeni Parliament, members of the Government of Reconciliation and the Temporary President to ratify the Rome Statute of the International Criminal Court, previously approved by the House of Representatives in 2004, but remains without ratification to this date, and thus to also work to join most of the countries of the work that are under the Rome Statute, so as to insure that human rights violations of the past are not again repeated in Yemen in the future.
Dr. Yasin Al-Qubati
Yemeni Center for Transitional Justice
Ta’ez on 21 January 2012
and HRW’s statement
New Immunity Law an Affront to Victims, Blow for Justice
A new law granting amnesty to President Ali Abdullah Saleh and his aides violates Yemen’s international legal obligations, Human Rights Watch said today. The sweeping law provides domestic immunity from criminal prosecution for serious international crimes such as the deadly attacks on peaceful demonstrators in 2011.
The law enacted by Parliament on January 21, 2012 grants blanket immunity to Saleh from any prosecution during his 33-year rule. It also shields Saleh’s aides from prosecution for “political crimes,” as long as they are not terrorist acts. Last year’s attacks on protesters might be classified as political and therefore exempted from prosecution, Human Rights Watch said.
“This law sends the disgraceful message that there is no consequence for killing those who express dissent,” said Sarah Leah Whitson , Middle East director at Human Rights Watch. “The Yemeni government should be investigating senior officials linked to serious crimes, not letting them get away with murder.”
An accord brokered by the Gulf Cooperation Council (GCC), that Saleh signed in November 2011, instructed the parliament, which is dominated by the ruling party, to pass a law granting immunity to Saleh and his aides in exchange for the president ceding all power by February 21, 2012. Yemeni Vice President Abd-Rabbu Mansur Hadi, who is serving as acting head of state, was expected to sign the law immediately.
An article in the law says it may not be “annulled” or “appealed.” However, providing immunity from prosecution for genocide, war crimes, crimes against humanity, torture, and other gross violations of human rights violates international law, Human Rights Watch said. International treaties, including the Convention against Torture and the 1949 Geneva Conventions, require parties to ensure alleged perpetrators of serious crimes are prosecuted. As recently as January 6, UN High Commissioner for Human Rights Navi Pillay reasserted that an amnesty cannot be granted for serious crimes under international law.
The Yemeni constitution authorizes the Supreme Court to rule on the constitutionality of laws in cases and pleas. Article 51 of the constitution of Yemen says citizens have the right of recourse to the courts to protect their rights and lawful interests. Article 153 of the constitution designates the Supreme Court as the highest judicial authority in the land and empowers it to strike down laws that are unconstitutional.
Yemen’s amnesty law does not prevent courts in other countries from prosecuting serious human rights crimes committed in Yemen under universal jurisdiction laws, Human Rights Watch said.
“Courts outside Yemen can and should ignore this amnesty and prosecute serious international crimes committed by the Saleh government,” Whitson said.
Yemen’s next government also could refer serious international human rights crimes committed during the protests against Saleh to the International Criminal Court (ICC) for possible prosecution, Human Rights Watch said. Although Yemen is not a party to the Rome Statute, the treaty establishing the ICC, it could accept that court’s jurisdiction over any eligible cases since 2002, when the Rome Statute went into effect. The UN Security Council also could refer crimes in Yemen to the ICC.
Human Rights Watch has confirmed the deaths of 270 protesters and bystanders during attacks by government security forces  and gangs on largely peaceful demonstrations against Saleh’s rule in 2011, most in the capital, Sanaa. Dozens more civilians were killed last year in apparently indiscriminate attacks  by security forces on populated areas during clashes with armed opposition fighters. Human Rights Watch also has documented a broad pattern of international human rights violations and laws-of-war violations by government security forces in previous years, including apparent indiscriminate shelling in the 2004-2010 civil war  with northern Huthi rebels and the use of unnecessary and lethal force since 2007 to quash a separatist movement  in the South.
The immunity law instructs Yemen’s government to submit draft legislation to parliament for national reconciliation and transitional justice and to “ensure the non-recurrence of violations of human rights and humanitarian law.” The concept of “transitional justice” as set out by the United Nations includes a range of judicial and non-judicial measures such as criminal prosecutions, truth commissions, and reparations to victims.
“Transitional justice without the justice is pretty hollow,” Whitson said. “Failing to prosecute will reinforce Yemen’s culture of impunity and signal to abusive leaders worldwide that there are no consequences for political murder