Two Resolutions, a Draft Constitution and Late Developments

by Sheila Carapico | published April 17, 2015 - 9:23am

On April 14, three weeks into the Saudi-led air campaign called Operation Decisive Storm, the UN Security Council approved Resolution 2216. This legally binding resolution, put forward by Jordan, Council president for April, imposed an arms embargo on the Houthi rebels and former Yemeni president ‘Ali ‘Abdallah Salih and his son. There are also provisions freezing individual assets and banning their travel. Russia abstained. It seemed fully to endorse both the so-called Gulf Cooperation Council initiative, brokered by UN Special Envoy Jamal Benomar, and Operation Decisive Storm.

But then, within a day or two, Benomar resigned and Secretary General Ban Ki-moon issued a much stronger plea for an immediate cessation of all hostilities. 

As the purported legal basis for UNSC 2216, Jordan’s proposal cited “a letter from the president of Yemen,” who has fled his country for Riyadh, requesting from the Gulf Cooperation Council (GCC) and the League of Arab States immediate “support, by all necessary means and measures, including military intervention, to protect Yemen and its people from the continuing aggression by the Houthis.”

The April 14 resolution reads as if Saudi Arabia is an impartial arbitrator, rather than a party to an escalating conflict, and as if the GCC offers a “peaceful, inclusive, orderly and Yemeni-led political transition process that meets the legitimate demands and aspirations of the Yemeni people, including women.” This is unmitigated nonsense. And it is contradicted by the testimony of rules-of-war monitors.

The Security Council expressed “grave alarm at the significant and rapid deterioration of the humanitarian situation.” But it conspicuously neglected to demand a humanitarian ceasefire to halt the Saudi-led bombing campaign, even briefly to allow essential medicines and food to reach Aden and other cities whose populations face death, destruction and devastation.

It is a particularly caustic omission. Only the day before Ivan Simonovic, the UN’s deputy secretary-general for human rights, said that the majority of the 600 people killed since the start of the Saudi assault are civilians. Both the Saudis and the Houthis are to blame, he explained. The UN High Commissioner for Human Rights’ spokeswoman, Ravina Shamdasani, noted rules-of-war violations by both sides. The World Health Organization recorded 736 deaths and 2,719 wounded since the onset of Decisive Storm. As Human Rights Watch put it on April 13, “The [Saudi-led] coalition and the US should investigate alleged laws-of-war violations by coalition forces and facilitate the delivery of humanitarian aid to populations at risk.”

By contrast, UNSC 2216 implies that only the Houthis are committing war crimes. Invoking Chapter VII of the UN charter as if circuitously and ex post facto to authorize Operation Decisive Storm, it demands that “all Yemeni parties, in particular the Houthis, fully implement resolution 2201 (2015),” “refrain from further unilateral actions,” and “unconditionally…end the use of violence.” No mention of non-Yemeni parties.

Instead of condemning war crimes on both sides, or calling forcefully for a negotiated ceasefire, UNSC 2216 implicitly condones the Saudi-led, US-backed escalation. An indistinct nod toward diplomacy “welcomes” the GCC’s restatement of a March 10 invitation to convene a “conference” in Riyadh. This proposal was disingenuous then, since the Saudis would hardly be neutral arbiters between a transitional regime they installed and a group they label “terrorists.”

Praising the resolution, US Ambassador to the UN Samantha Power, known for her past advocacy of humanitarian intervention, declared that “a legitimate transition in Yemen can only be achieved through political negotiations and a consensus agreement among all political parties based on the GCC initiative and the outcomes of Yemen’s National Dialogue Conference.”

Meanwhile, in addition to providing intelligence and surveillance, Washington rushed advanced weapons to Saudi Arabia and Egypt to bolster the aerial offensive against Yemen.

The Jordanian-sponsored resolution gives the impression that these (unmentioned) actions support rather than defy international law. In nine separate paragraphs and clauses, UNSC 2216 lauds the GCC initiative, including its outcomes: the National Dialogue Conference and, thereby, and the draft constitution also facilitated by Benomar. It reaffirms “the legitimacy of the president of Yemen, ‘Abd Rabbu Mansour Hadi.” Moreover it condemns “any actions that undermine the unity, sovereignty, independence and territorial integrity of Yemen.” 

UNSC 2216 and Power’s remarks in mid-April follow up on a measure passed by the Security Council two months earlier on February 15. Then, as the United States, other NATO powers and Gulf nations shut down their embassies in Sanaa and evacuated their diplomats, the world body unanimously voted for Resolution 2201, calling on the Houthis to surrender their military gains and all Yemenis to get behind the GCC initiative and the draft constitution produced with the assistance of the special envoy, Benomar, in the name of the National Dialogue Conference.

This first resolution reflected Gulf and great power anxieties about minority guerrillas capturing the capital, Sanaa, overthrowing the remnants of the central government, sowing chaos, and inadvertently leaving opportunities for Ansar al-Shar‘ia (a local ally of al-Qaeda in the Arabian Peninsula or AQAP) to make even more mischief. Domestically, it appealed to some, especially in the governorates that made up independent South Yemen until unification in 1990, who prefer the interim government of Hadi to the Houthis, but who also aspire to independence rather than unity. 

In February, as in April, the “international community” praised the GCC initiative and its outcomes as the only solution to Yemen’s woes, Hadi as the rightful leader and the draft constitution as a road map for the future. Actually, all three had already failed to deliver tranquility, social justice or a way forward.

The GCC initiative was hardly a blueprint for social justice in Yemen, and the draft constitution sold popular aspirations short. A refresher on the GCC initiative: In 2011 there was a mass non-violent uprising against Salih. It remained mostly peaceful, although security troops were regularly sent to shoot demonstrators and more than 50 demonstrators were killed on one day in March and Salih himself was seriously injured in an assassination attempt in June. While Salih was convalescing in Saudi Arabia, leaders who had tried to bridge the impasse between north and south in 1994 relaunched their National Dialogue. This project was commandeered by the GCC, who cut a deal with Salih, signed in Riyadh in late 2011, whereby he handed over presidential power to his handpicked vice president in exchange for immunity from prosecution for misdeeds in office, while remaining the head of the ruling General People’s Congress, which in turn technically retained a majority of 301 district-based parliamentary seats (although legislative terms had already expired). A hastily arranged one-candidate election in 2012 installed Hadi for a two-year term as transitional president. The revolutionary “peaceful youth” who had camped out in city squares for months on end in 2011 were mostly wary of this plan for limited regime change, and skeptical about GCC agendas. Also, note that Hadi’s term has run out.

In and of itself, the ensuing National Dialogue Conference was a sound idea, grounded in Yemeni precedents. It did help to tamp down tensions in 2012 and part of 2013. Some of its committees made real progress, thanks to some young and/or female intellectuals and technocrats. There were working groups on a range of issues—ranging from economic development to the Houthi and southern questions, respectively. But in the end the Conference did not produce the desired results. Most of the 565 delegates were aging politicians, veterans of past conflicts and corruption rackets. The dissident Houthis, the Southern Movement or hirak, and advocates of genuine change were under-represented.

The National Dialogue, moreover, became a donor-dominated “transitology” project. Delegates earned generous per diems to meet in the five-star Mövenpick Hotel in Sanaa with foreign “experts” on subjects like federalism. This last item was not on the Conference agenda or part of its mission statement or committee structure—but nevertheless a federalism proposal was a major outcome of the Conference, and a central feature of the proposed constitution. Still, the federal map produced by the Conference was dismissed in popular responses as inadequate to address the real need for a regime change or to end to power struggle in Sanaa. It was, moreover, the imposition of the division into six regions that prompted the Houthis to deploy so as to stop that division. The hirak also rejected this redesign.  

The draft constitution overvalued in UNSC 2216 is premised on a “federal” solution to Yemen’s problems. There’s no doubt that the majority of Yemenis prefer decentralized local governance over one-man autocracy. Nor can anyone object to the numerous platitudes including promises to respect rights to asylum, health care and more. But the draft constitution, a product of the GCC initiative and foreign consultations, was not the answer to Yemen’s problems it was made out to be. It seemed bizarrely derivative of the flawed American-backed constitution foisted on Iraq in 2005, or the similar failed arrangements introduced in Afghanistan.

The envisioned government structure is not fully federal if that term means regional autonomy. The text specifies that the new House of Representatives shall consist of 260 members elected through a general, free, secret, direct and equal vote under the closed proportional list system. That is national constituency representation, whereby parliamentary representatives are elected from the whole country, not localities or provinces, as in the American or German federal systems. Yemen’s draft constitution would marginalize regional forces, notably the Houthi movement (Ansar Allah), based in the Sa‘ada governorate in the far north.

Moreover, oddly, the draft constitution stipulated that the south (the newly designated but ill-defined regions of Aden and Hadramawt) shall be represented in the House of Representatives based on “the land and population formula” at a share of 40 percent. This formula would give the south more seats than they had in the current (although legally defunct) 301-member legislature, or than they would earn based purely on population. It looked like a bid to win the support of southerners. At the same time, contrarily, the proposed national charter divided the south into two large regions in the “federal” system, a notion that is anathema to many hirak activists, whose demands are for the restoration of independent southern sovereignty.

The draft constitution also created a new upper house of Parliament called the Federal Council, comprised of 84 members—12 from each of six newly created regions, six from the city of Sanaa and six from the city of Aden. This apportionment is cockeyed because the ostensible equality of representation from each of the six purportedly federal regions is skewed toward the former capitals of North and South Yemen, respectively. Other large metropolitan areas, notably Ta‘izz, but also Hudayda—situated geographically, politically and metaphorically between Sanaa and Aden—were relatively under-represented.

Finally, the draft constitution specified that the president and vice president shall be elected together on a single ticket, provided that they are not from the same region. And yet the national constituency vote virtually guarantees a majority of conservative, status quo politicians from the more populous former North Yemen.

None of these provisions satisfied popular aspirations.

Under the leadership of the new Saudi King Salman, the members of the GCC (except Oman) pulled together a war coalition including Egypt, Jordan and Morocco, backed by the United States and Great Britain. They rammed a flawed, legally questionable, unbalanced resolution through the Security Council that seemed to authorize a military operation that has closed all of Yemen’s air and sea ports, caused a nationwide power outage, killed hundreds, wounded thousands, displaced tens of thousands, incapacitated emergency and medical facilities, halted food imports and terrorized millions.

When I began this essay my conclusion was to be that it is the responsibility of the Security Council, the Obama administration, other world powers, and American, British or European scholars familiar with the many intricacies of this conflict to call unequivocally on all parties to stop fighting, bombing and rearming: to give diplomacy a chance, halt the bloodletting, show empathy for innocents caught in the crossfire. I honestly don’t know what is going on inside the UN. But I hope the secretary-general and others are about to embrace the #KefayaWar hashtag. And that the US policy establishment will pay heed. And that otherwise a community of concerned scholars will speak out.

Image: Samer al-Shameri

Filed under: