Executive Summary

Customary norms or laws, known as A’araf, continue to play an instrumental role in delivering justice, providing security, and resolving disputes in Yemen, where more than a decade of overlapping conflicts since the 2011 Arab Spring uprising have weakened trust in state institutions.^[1] Historically, customary law has been effective in containing local feuds, restoring relationships, and helping maintain social order. Although many Yemeni tribes employ mechanisms such as Sulh (reconciliation), Tahkim (arbitration), Aman (protection and guarantees), and Diya and Arash (forms of compensatory redress), the application of customary laws is not uniform across Yemen. Socially embedded pathways for conflict resolution, justice, and reconciliation vary according to the lived experiences and community perceptions of how accessible, inclusive, legitimate, timely, and fair these processes are. Furthermore, the outcomes of customary processes are often shaped by factors such as social hierarchy, coercion, and war-related polarization.

This study examines how customary law mechanisms operate across five governorates – Hadramawt, Shabwa, Marib, Sana’a, and Hudaydah – and explores their compatibility with Transitional Justice (TJ) principles, their impact on local communities, and their implications for locally informed, victim-centric, and rights-based TJ programming in Yemen.^[2] Using a mixed-methods, qualitative-led approach, the study combines key informant interviews (KIIs) and focus group discussions (FGDs) with desk research and the review of relevant documents, rulings, settlements, and agreements. The five governorates were selected to capture Yemen’s diverse social, regional, and political landscapes, including variations between north and south, east and west, the highlands and the coast, and tribal and urban areas. The report assesses the opportunities and limitations of incorporating customary law mechanisms into TJ processes, examining who benefits, who is excluded, and under what conditions these mechanisms can support localized TJ programs without undermining victims’ rights or reproducing structural hierarchies and grievances.

The findings are consistent with broader literature on legal pluralism in conflict-affected, tribally structured societies, showing both the strengths and limitations of customary justice:

Core Strengths: Customary mechanisms are strong tools for rapidly containing conflict, revenge, and blood feuds, as well as for resolving tribal, land, and natural resource disputes. Where power asymmetries are minimal, these norms provide restorative redress, facilitate humanitarian measures (such as prisoner and casualty exchanges), and enable symbolic apologies and public acknowledgments of wrongdoing.

Weaknesses and Vulnerabilities: Customary mechanisms tend to be less effective in contexts where tribal cohesion is weak, state institutions lack the capacity to support or enforce decisions, and rival power structures, such as armed groups or competing political authorities, undermine the legitimacy and authority of traditional leaders. More importantly, they are generally ill-equipped to address grave violations like torture, sexual violence, and mass arbitrary seizure of assets. They also lack the capacity to undertake comprehensive fact-finding, truth-telling, documentation, and accountability processes that form the bedrock of transitional justice.

Principal Constraint: Inclusion remains the principal challenge. Women, the displaced, marginalized communities, and religious minorities face structural challenges in customary justice, including uneven access and treatment. They also sometimes face weaker bargaining power and disproportionate outcomes due to entrenched social hierarchies in Yemen and unequal power in decision-making processes.

Customary law is neither a complete substitute for formal accountability pathways nor a relic to be ignored. Instead, customary governance is a variable practice whose merits and constraints should be empirically explored, assessed, and understood before selective and conditional integration into transitional justice processes. Victim participation, credible documentation, truth-telling, and adequate safeguards remain enduring preconditions for any meaningful linkages between customary practices and transitional justice programming in Yemen.^[3] This study therefore advocates for a selectively integrated, complementary approach that neither romanticizes nor dismisses or demonizes customary law, arguing for the selective integration and application of credible instruments in TJ programming.

Select Recommendations:

1. Selectively integrate customary law in TJ programming, using local A’araf for restorative justice and local dispute resolution, while clearly limiting its application in grave violations.
2. Define clear boundaries and referral pathways for cases involving sexual and gender-based violence, child recruitment, and significant political or intergroup crimes, which should be addressed through formal justice systems.
3. Ensure effective safeguards against coerced settlements in customary resolution processes, such as conducting private consultations with victims before settlement, implementing checks to ensure voluntary participation, allowing cooling-off periods to reconsider settlements, and incorporating no-reprisal clauses in agreements.
4. Establish minimum documentation standards for customary processes to ensure basic records of harm, consent, and risk of coercion, while protecting identities.
5. Prioritize inclusion as a key metric, monitoring access and outcomes for women, internally displaced persons (IDPs), the Muhammasheen, and other marginalized groups.
6. Improve coordination between customary and formal justice actors, including national commissions, courts, and civil society.
7. Support adequate programming specific to each governorate and gradual integration, backed by international funding focused on long-term victim-centered justice and capacity building.

This report is part of a series of publications produced by the Sana’a Center and funded by the government of the Kingdom of the Netherlands. The series explores issues within economic, political, and environmental themes, aiming to inform discussion and policymaking related to Yemen that foster sustainable peace.