Detainees should not be used as bargaining chips in negotiations.

Activists at the Human Rights Forum

Friday, April 14, 2023
Detainees should not be used as bargaining chips in negotiations.

The Human Rights Forum held its fourth discussion session on Zoom, focusing on the situation of arbitrarily detained and forcibly disappeared individuals, especially during the month of Ramadan and the worsening economic and psychological conditions for thousands of families. This session coincided with a prisoner exchange deal conducted by the conflicting parties and implemented by the Red Cross.

During the Zoom meeting, several speakers addressed the topic, including Abdulrashid Al-Faqih, Deputy Chairperson of Mwatana for Human Rights, Niku Jafarnia, Yemen and Bahrain researcher at Human Rights Watch, Nasser Al-Khalifi, the Executive Director of Dameer Foundation for Human Rights in Shabwa, and Manal Al-Najjar, a lawyer at Mwatana for Human Rights. The event was facilitated by Hussam Al-Iryani, a lawyer at Mwatana.

At the beginning of the event, Al-Faqih stated that enforced disappearance and arbitrary detention in Yemen have witnessed severe waves, particularly since the Houthi group's invasion of the Yemeni capital, Sana'a, and the intervention of the Saudi/UAE-led coalition and the announcement of its military operations in Yemen on March 26, 2015.

He added that in various regions of Yemen, all parties to the conflict have committed horrifying acts, affecting hundreds, if not thousands, of civilians by enforced disappearance and arbitrary detention. Mwatana for Human Rights and its partner organizations have documented a significant number of cases of enforced disappearance and arbitrary detention, yet these numbers represent only a fraction of the parties' behavior towards civilians in various regions.

Abdulrashid discussed the state of this violation prior to the recent war, noting that there were instances of arbitrary detention carried out exclusively by the former National Security and Political Security apparatuses, which used their facilities for enforced disappearance and arbitrary detention.

Al-Faqih emphasized that during the conflict period the parties involved in this violation increased, as it has been committed by official and unofficial bodies. He lamented that armed groups were supported across all regions, leading to the establishment of new detention centers, whether in houses, schools, or civilian facilities, which were used as places of detention. Hundreds of cases of torture and inhumane acts were documented in these centers by various parties.

Al-Faqih continued, saying, "There are still many civilians forcibly disappeared. In fact, international conventions clearly criminalize this violation and consider it a crime against humanity, as the victims are not only the disappeared individuals themselves but also their families, friends, and anyone affected by the crime of enforced disappearance."

Al-Faqih also addressed the recent prisoner exchange deal in Ramadan, stating, "A few days ago, we witnessed a positive step to alleviate this pressing issue by releasing 878 detainees, including combatants and civilians who were forcibly taken from their homes or from streets. Unfortunately, these civilians were used as bargaining chips in the recent exchange deal."

He commended the role of the UN envoy's office and the International Committee of the Red Cross, acknowledging their significant efforts in achieving this agreement. There are promises to resume discussions following Ramadan, at the beginning of May, to reach a new agreement for the release of more detainees.

With respect to the role of Mwatana, Al-Faqih said, “We work specifically on civilian issues and our main demand is their release, without bartering, and without subjecting them to bartering that is subject to the moods of the parties. Many of the release orders came from the Public Prosecution Office, whether in Aden or in Sana'a, or from the Public Prosecution branch offices in the governorates. Unfortunately, the parties do not respond to these orders.”

Al-Faqih further explained that all detainees were held in violation of Yemeni law, the Criminal Procedure Law, and other clear Yemeni laws regarding the legal duration of individuals' detention. He clarified that Yemeni law specifies the detention period for law enforcement agencies, including the police and other entities, such as the National Security and Political Security apparatuses. These entities are authorized to detain individuals for a maximum of 24 hours if there is a legal justification for their detention. In cases where there is a judicial process, the authorities are obligated to adhere to the law from the moment of detention throughout all stages until the detainees are either referred to the prosecution or brought to trial if there is a legal basis for their detention. 

Al-Faqih reiterated, saying, "Unfortunately, all parties have breached this law and the secure provisions in the Yemeni Constitution, which guarantee every individual, upon the initiation of a criminal charge, the right to freedom and the right to have a lawyer, ensuring that the authorities adhere to the prescribed legal procedures."

Regarding the role of public prosecutions during the conflict period, Al-Faqih stated that Yemeni law considers the Public Prosecution as part of the judiciary and grants it extensive powers over various detention facilities.

He emphasized that Yemeni law criminalizes the establishment of detention places or prisons outside of authorized detention facilities. The Yemeni law imposes penalties ranging from three to five years' imprisonment on anyone who contributes to the establishment of an illegal detention place, including those who lease premises for detention in violation of the law.

Al-Faqih mentioned that the role of the Public Prosecution has been hindered since the start of the conflict in Yemen. The Public Prosecution has no power over various detention facilities. Mwatana has made efforts during the past period through its network of lawyers to activate the role of the Public Prosecution by documenting the existence of illegal detention places and the unlawful acts of detention.

He concluded, saying, "We have submitted memoranda to the Attorney General in Sana'a and the Attorney General in Aden, as well as the heads of public prosecutions in recent years, with the aim of activating the role of the public prosecutions to monitor detention facilities. Unfortunately, the role of the Public Prosecution remains largely symbolic and ineffective, and its voice is unheard by the official law enforcement officers and the formations that are actually carrying out the detention."

The researcher on Yemen and Bahrain at Human Rights Watch, Niku Jafarnia, spoke about international law and the organizations that operate based on it, stating that under international law, arbitrary detention and enforced disappearance violate human rights law, international humanitarian law, the International Covenant on Civil and Political Rights, and other international instruments.

Jafarnia focused on international humanitarian law and the International Covenant on Human Rights because, as she said, they are relevant to the situation in Yemen. Looking at cases of enforced disappearance and arbitrary detention, they occur when a person is arrested, detained, or abducted, and their arrest is not acknowledged, information about their fate or whereabouts is withheld, and they are not subjected to a fair trial. This deprivation of their freedom constitutes a violation of their fundamental right to personal liberty.

She stated, "The right to personal liberty is a fundamental right and a legal term defined under Article 9 of the International Covenant on Civil and Political Rights. This means that in cases of arbitrary detention, when the victim is not informed of the grounds of their detention or arrest, their rights are not respected, they are not brought before a judge, and the trials are unfair. This applies to the situation in Yemen, where thousands of people have been arrested or abducted without legal grounds and are held without information being provided to their families and loved ones or being allowed to communicate with the outside world."

Jafarnia added, "Often, individuals are arbitrarily detained, subjected to mistreatment, torture, and grave violations. In some of these cases, these acts rise to the level of crimes against humanity under the Rome Statute and the Geneva Conventions. These practices, such as arbitrary detention and enforced disappearance without any legal justification, may constitute war crimes during the Yemeni conflict."

She continued, "This leads us to discuss the role of international organizations in this regard. It is not hidden from us that thousands of cases of enforced disappearance and arbitrary detention have occurred during the conflict in Yemen. However, we noticed the release of a thousand individuals in the past week, which is a great relief for many families in Yemen as they are reunited. Many of these cases have gained attention unlike before. However, hundreds of individuals remain in detention, including human rights defenders, journalists, and activists, who have been used as bargaining chips by the conflicting parties."

Regarding the role of international organizations, Jafarnia pointed out that it is the responsibility of these organizations to demand the release of detainees and respect for their rights. She mentioned that organizations such as Mwatana and others have documented numerous violations during the Yemeni conflict, and everyone raises their voices on these issues.

Speaking about the role of Human Rights Watch, she stated, "It is our duty as Human Rights Watch and other international organizations to make your voices heard and to let people know what is happening in Yemen and to take action on what is happening there. For example, the Group of Eminent Experts was suspended in 2021. It was an independent monitoring body, but it was dissolved due to pressure from Saudi Arabia. Now, in 2023, hundreds of people are still detained, and Mwatana has documented hundreds of cases alongside other organizations. However, we do not have sufficient capacity alone to document all these cases, and here is where international organizations must step in to fill this gap. There must be an international mechanism to address this issue, and we must work together to push for such a mechanism."

Jafarnia called on states to take action and hold those responsible for enforced disappearance and arbitrary detention accountable, emphasizing the importance of international pressure and concerted efforts to address these grave violations of human rights in Yemen.

Jafarnia also called on organizations to work together and join efforts to demand justice. She said, "In this regard, on Monday, April 17, we issued a joint statement, which is a comprehensive statement that highlights the violations committed against individuals during eight years of conflict. We also demand that all parties release all detainees and prisoners, and not use some of them as bargaining chips."

Nasser Al-Khalifi, the Executive Director of Dameer Foundation for Human Rights in Shabwa governorate, spoke about the prisoner exchange deal and stated that the recent exchange of prisoners and the release of some detainees was a positive step for the conflict parties, paving the way for more releases in the future.

He said, "We witnessed painful scenes captured by television cameras and shared on social media during the reception of those who were released. There was a child who was born and a young man who didn't know his father, a woman waiting for her son, and a wife who died before seeing her husband. Many tragedies unfolded."

Al-Khalifi also addressed the situation in Shabwah governorate, stating that it had been subjected to the involvement of various conflict parties from 2015 to 2022, starting with Ansar Allah, then the internationally recognized government, followed by the Presidential Council's government and the parties supported by the Arab coalition. These parties have created numerous violations, including arbitrary detention and forced disappearance. He said, "Undoubtedly, in terms of legal support, we have pursued numerous legal actions."

Al-Khalifi pointed out that provisions of the Yemeni laws, the Criminal Procedure Law, and constitution are clear and explicit in protecting human beings and human rights. However, due to the weakness of security and judicial institutions, these agencies have failed to fulfill their role in holding human rights violators accountable.

He concluded by saying, "Today, we face the difficult task of establishing an international mechanism to hold perpetrators of these violations accountable. When I see the judiciary is politicized."

In addition, Manal Al-Najjar, a central lawyer at Mwatana for Human Rights, spoke about the campaigns carried out by Mwatana for Human Rights to release detainees and alleviate the burden on their families.

Manal stated that in the middle of Ramadan 2019, Mwatana conducted a campaign to pressure the parties to the conflict to release all detainees, and the campaign was named "Their Eid Among Their Families." The campaign required the consent of families to publish data on their arbitrarily detained and forcibly disappeared relatives.

She added, "The campaign coincided with the last ten nights of Ramadan, during which we obtained the consent of 81 families from all governorates. The compaign continued until the beginning of Eid. There was a significant response to this campaign, which demanded the release of all detainees by all parties."

According to Manal, the campaign evolved in Ramadan 2020 into the campaign "Their Ramadan With Their Families" in addition to "Their Eid With Their Families," and it had two parts. The first part included cards of the detainees containing the victim's name, the violator, and the place of detention. The second part consisted of messages from the families of detainees and the disappeared, expressing their feelings and wishes for the victims to be reunited with their families.

Manal clarified that during the year 2020, Mwatana published approximately 124 names of disappeared and detained individuals in both Arabic and English. Additionally, a joint statement was issued demanding the release of the four journalists sentenced to death.

As for the year 2021, the campaign further evolved. Manal stated that Mwatana published around 147 names of detainees and disappeared individuals, holding all different parties to the conflict responsible, and demanding their release to spend Ramadan and Eid with their families. 

Manal continued, "In addition, we created messages under the title 'Messages From Broken Hearts,' which spoke about the victims' wishes to be reunited with their families and to obtain their right to freedom. These messages amounted to 35. We also released a joint statement with the Cairo Institute for Human Rights Studies. Furthermore, a special video was released addressing the harsh conditions of detention facilities and demanding the release of detainees amid the spread of the COVID-19.

During the year 2022, according to Manal, the campaign shifted from regular messages to the publication of three videos targeting three parties: Ansar Allah group, the Internationally Recognized Government, and the Southern Transitional Council. The campaign included 34 messages.

Manal mentioned the year 2023 and said that Mwatana had expanded its efforts, preparing three videos. One of these videos was about Ramadan meals. The second video was about a relative of one of the victims describing their situation and how this tragedy affected their humanitarian conditions during Ramadan. The third film featured former detainees speaking about the difficult circumstances they endured while being detained by the conflicting parties.

Manal also explained that Mwatana issued thirty memoranda to all parties, demanding the release of all detainees and disappeared individuals, and there are indications of the release of some of them. Additionally, 23 messages were uploaded to the 'Messages From Broken Hearts'. The aim of the campaign is to address the human sense of the parties involved in the conflict, especially during the month of Ramadan, and call them to release the detainees uncondictionally. The campaign also aims to highlight the personal identity of the victims, emphasizing that they are not mere numbers.