Transitional justice is a component of peacebuilding that seeks for accountability, justice and reconciliation. It is based on four core measures: perpetrators’ trial, truth-revealing, reparations for victims and administrative reforms (Van Zyl, 2005, p.209). If these measures have existed for a long time, their justification by reference to universal human rights and democratic goals is recent and has played a crucial role in post-revolution Tunisia. Transitional justice articulates a legal corpus (right to justice, to truth, to reparations etc.) to the pragmatic goals of democratization and pacification. Guaranteed by the existence of a new UN mandate for ‘the promotion of truth, justice, reparation and guarantees of non-recurrence’ (De Greiff, 2013), transitional justice is often built in opposition to politics, which as we shall see with the Tunisian case, has obvious limitations.
The four core measures allow to restore citizens’ trust in their institutions by legitimizing the state again, which must therefore be prepared to publicly admit its wrongs and establish responsibilities for human rights violations. To meet this requirement, the sense of justice has become more complex: the revelation of wrongs, public apology, and recognition of the rights of victims, commemoration or reforming the teaching of history are considered as ways of accountability. As such, the role of transitional justice as a political project is related to memorial and identity issues. For example, Tunisia has had to rethink the state’s relationship to religion (Allani, 2009, p.257) and even the social system of property redistribution. Transitional justice is also the place of intense political disputes, because it is a decisive element in negotiating the direction of post-revolution Tunisia.
In order to understand the role of transitional justice in the peacebuilding process in post-revolution Tunisia, the first part will highlight the need for peacebuilding measures and will also analyse the ad-hoc transitional justice between the revolution (January 2011) and the democratic elections (October 2011), which focuses on truth-seeking and reparations. The second part will outline the confrontation between the transitional process and the revolutionary logic by exploring the perpetrators’ trials and the administrative reforms.
The need for peacebuilding measures comes from the legacy of human rights violations since Tunisia obtained independence from France in 1956 and Habib Bourguiba became the new leader. Indeed, constant fighting with pan-Arabic fellaghas brought the country to the brink of civil war, to the point that Bourguiba asked the French army to support the repression (Perkins, 2004, p.131). In total, this led to more than 900 deaths, which is twice as many as for the independence struggle (Henry, 2008, p.310). Bourguiba then launched a modernizing project, accelerating reforms in the economic, educational and social sectors, to the point of being labelled ‘Arabic Atatürk’ (Kaplan, 2011). The Personal Status Code (1957) granted significant rights to women, particularly in terms of divorce, contraception and inheritance, in a very new way for the Muslim world (Brynen et al., 2012, p.18). In terms of religion, this reformist president was skeptical about Ramadan, the veil and the traditional Sharia courts therefore he unified the legal system as a secular model, and Islamic institutions were subject to strict state control (Boulby, 1988, p.595). Many violations of political and civil rights were committed in the 1970s, especially against student movements, leftist and Islamist opponents (Alexander, 2012, p.40). However, the opposition gained importance following the economic crisis and the strengthening of the authoritarianism of Bourguiba, self-proclaimed ‘President for Life’ (Alexander, 1997, p.36).
This violence resulted in a peaceful coup led by Ben Ali in 1987 and justified by ‘medical’ reasons against Bourguiba. Ben Ali rapidly turned against the Islamist opposition and banned Ennahda, imprisoning or forcing its members into exile. Several public trials were held, widely criticized by civil society as violating the fundamental principle of fair trial (Middle East Watch and International Human Rights, 1992). In the 1990s, despite a more positive international image, Tunisia became a police state, violating human rights from restrictions on freedom of expression and information to torture and arbitrary executions (Henry, 2008). In the post-9/11 world, Tunisia joined the ‘war against terrorism’, which legally accentuated the repression that became free of any criticism from the international community. Amnesty International denounced that ‘’security and counter-terrorism’ concerns were used to justify arrests and other repression of Islamists, and political dissent in general’, highlighting the existence of cases of torture, enforced disappearances, or unfair trials, including military courts (Amnesty International, 2009, p.2). Under Ben Ali, corruption became endemic, and the governance looked more and more like a mafia system. These multiple factors, combined with the economic crisis and the rise in unemployment, particularly among graduates, were at the heart of the revolution that entailed hundreds of deaths and injuries, and resulted in the escape of Ben Ali on January 14, 2011.
The ad-hoc transitional justice that preceded the elections focused on truth-revealing and reparations for victims, and played a crucial role in the categorization of victims. The truth-seeking measures started when Ben Ali opened the discussion on transitional justice while trying to ease the tension. He promised to account for exactions committed by the police against protesters and to set up three commissions on rights abuse, corruption and political reform (Lamont & Boujneh, 2012, p.39). These commissions were created after the uprising: the commission on political reform guided the interim government, and the other two were integrated in the transitional justice system.
The work of the ‘National Commission for the Investigation of the Facts of Abuses Recorded during the Period from 17 December 2010’ was based on the hearing of victims of the demonstrations’ repression. It questioned the perpetrators, visited prisons, constituted a significant system for recording data on victims and launched a major advertising campaign, including calling the victims and their families to testify. In total, the Commission identified 2489 cases (Justice Transitionnelle en Tunisie, 2014, p.65). Its mandate was certainly a major step but despite significant achievements, it remained insufficient in the development of transitional justice.
The ‘National Commission for the Investigation of Bribery and Corruption’ almost worked as a Truth Commission. Again, citizens were encouraged to come and complain and more than 10.000 cases have since been recorded, including 5% forwarded to court (Anticor, 2015). These records often bind corruption cases to other human rights’ violations, such as humiliation or violence by the police. Therefore, the Commission has generally promoted the recognition of marginalized citizens and thus functioned as an instrument of social inclusion. Its work was under constant political pressure but the Commission contributed to the dismantling of a mafia system and the fight against impunity.
However, very quickly the discussion on Tunisian transitional justice focused to a greater extent on reparations than on truth-revealing. Indeed, amnesty was provided for anyone subjected to conviction or prosecution for political reasons. As of today more than 12 000 former political prisoners have benefited from this amnesty, which also includes compensation, reparation and rehabilitation, for example providing recruitment in the public sector (Preysing, 2016, p.143). Very controversial, this amnesty was suspected of being a means to place Islamist supporters in the administration, for example several members of the Salafist party were allocated important posts, particularly in the education sector (Ben Hamadi, 2013). Indeed, the reparations by any form of preferential recruitment (or positive discrimination) finds its limits in that differentiation between victims is very difficult to apply for political criteria. The Tunisian process is characterized by a categorization of victims according to different times or types of violations suffered, which encourages a kind of ‘victimhood’ and thus contributes to fueling its politicization (Preysing, 2016, p.37).
The compensation of revolutionary martyrs and wounded citizens aims to build a commemoration building, a museum of the revolution, make January 14th a national holiday, to give the streets names of martyrs and incorporate teaching about the revolution in history textbooks program (Human Rights Watch, 2012a). It defines the martyrs of the revolution as ‘persons who risked their lives for the revolution, died or were victims of physical harm causing them an infirmity, during the period extending from 17 December 2010 to 19 February 2011’ (De Greiff, 2013, p.7). To take advantage of reparations, rights-holders should contact the government and provide a medical certificate guaranteeing their situation as ‘martyrs’. This process has led to numerous injustices: for example, some victims could not afford the 80 dinars necessary to acquire the certificate whereas other citizens had the support of corrupt doctors (Andrieu at al., 2015, p.20). In fact, the definition and establishment of clear lists of victims suffered from a lack of transparency and is a considerable obstacle for the legitimization of Tunisian transitional justice. However, overall a total of 6000 dinars was allocated for 2,749 wounded and 40,000 dinars for the families of 347 martyrs (Human Rights Watch, 2012a). Transitional justice plays a crucial role in diagnosing the problem but also in dealing with material and psychological assistance and symbolic measures (Van Zyl, 2005).
The Tunisian context is exceptional for many reasons, firstly as a model of truly revolutionary non-negotiated transition. The link to the old regime is guided by an identical logic, and affects the transitional justice process. This originality is augmented by the fact that, as a result of the 2011 elections, it is the representatives of the political party mainly targeted by past repression that took power. Therefore, the risk of transitional justice being accused of ‘winners’ justice’ was important (Voorhoeve, 2014). Second, the exceptionality also arises because the revolutionary logic, which aims to forget the past by eliminating ‘against-revolutionaries’ influences from the old regime, is now competing with the transitional dynamics. These are perceived as too conciliatory, since they aim at forgiveness and reconciliation. Moreover, the popular opposition to a return to power of Mohamed Ghannouchi, who was himself prime minister of Ben Ali can be contrasted to the fact that the new president, Beji Caid Essebsi, aged 89, is former Interior Minister of Bourguiba. The new president is associated with modernism and progressiveness, and various transitional justice measures were taken although in a fragmented way.
Another core measure of transitional justice is the perpetrators’ trials. However, a fragmentation was clearly observed in the criminal aspect of transitional justice, when some perpetrators’ trials took place before the first transitional justice laws. The lag between the various stages and judicial decisions was a considerable challenge to the consistency of Tunisian transitional justice. The military tribunals had to try exactions committed during demonstrations by the security forces and those responsible for the orders were judged at major ‘trial of the martyrs’ (Andrieu at al., 2015, p.16). At the military court in June 2012, Ben Ali was sentenced to life imprisonment. Yet the Military Court of Appeal diminished these judgments, which lead to the acquittal of several former security officials of the old regime (Massagee, 2015, p.36), and the outrage of the martyrs’ families.
Beyond the politics, this verdict demonstrates legal difficulties to judge such violations in transitional period. Military judges have indeed faced significant legal obstacles and practices, particularly related to the absence of the principle of command responsibility in Tunisian law. This principle attributes the responsibility for the crimes committed by subordinate agents to military commanders or civilian superiors. Moreover, judges have faced some limitations in the legal qualification of the crimes. Thus, in some case, the charges of torture could not be charged due to the fact that Tunisia had then not yet integrated the Convention against Torture in its national law. Consequently the charges were simply those of ‘violence against others’ which greatly reduced penalties (Human Rights Watch, 2012b).
These cases had a limited impact and echo, because of the small participation of the victims and media episodic reporting. In this regard, the absence of Ben Ali was a major factor taking away the ritual and symbolic element of such trials in a period of transition. Furthermore, they were promptly accused of being ‘show trials’ (Byrne, 2012). Those who fired the bullets remained free, which created tensions. Due to the lack of real ballistic investigation and autopsy, the contribution of these processes to the establishment of the truth has been very limited. The question remains as to whether some of these lawsuits could be reassigned to specialized instances introduced by the transitional justice law, without breaching the non bis in idem principle.
The administration reform is the last pillar of transitional justice, because institutional changes aim to prevent the reappearance of human rights’ violations in the future. In Tunisia, the attention was focused on two main areas, representative of the political influence of the old regime: justice and security. Indeed under Ben Ali, the judiciary was entirely under pressure from the executive, with the majority of judges appointed by presidential decree. If, after January the 14th, the need to break free from these practices became clear, the ways have not always been fair. In May 2012, several dozen judges were unilaterally dismissed by the Ministry of Justice, the official reason being vague allegations of ‘corruption’ (Human Rights Watch, 2013). These charges are recurrent in discussions about vetting in Tunisia, at the expense of fundamental human rights guarantees, and contrary to the logic of transitional justice which aims, conversely, at a vetting based on the principles of individual responsibility, social inclusion and national reconciliation.
The draft law for the ‘immunisation of the revolution’ proposes to exclude from participation in political life anyone who, between April 1989 (date of the first elections of Ben Ali) and 14 January 2012, occupied a position in the government or RCD, and any person who asked Ben Ali to run again in 2014. This bill has provoked strong criticism from civil society, political actors and the international community. Indeed, it presents many challenges for human rights, especially violating the right to political participation. By condemning individuals solely on the basis of their past political affiliations, the immunisation law is akin to a form of discrimination on the basis of opinions, and contravenes the rule of non-retroactivity of law. Thus defined, ‘immunisation’ is more similar to a drain than an actual remediation process which, in a context of transitional justice, is necessary and legitimate as a guarantee of non-repetition, and which involves a case-by-case assessment of accountability and integrity of public servants. In total, the bill would affect 60,000 Tunisians (Fordham, 2013).
If it is unlikely that this project will ever be adopted, the debates that surrounded it are indicative of the tensions in the process of democratization of Tunisia, which opposes the logic of revolution to that of the transition. Indeed, the immunisation law is involved in a revolutionary dynamic whose goal is to make a clean sweep of the past according to a principle of collective responsibility. The role of transitional justice relies on an individualization of wrongs and seeks ultimately to achieve reconciliation and reintegration of the former regime in the construction of the new state.
To conclude, peacebuilding is a long, multi-dimensional and country-specific process, and ad-hoc transitional justice is not sufficient to transform the society but should rather be part of a comprehensive strategy (Van Zyl, 2005, p.226). Recognizing a distinct classification of victims always defines the country’s history and a political project from a specific point of view. The unfinished and largely fragmented transitional process poses significant challenges for both the Tunisian democratic transition and the field of transitional justice in general. These issues can be linked to question of the relation of transitional justice to politics, in a Tunisian transition context particularly marked by its revolutionary nature. Indeed, the strong politicization of the debate on transitional justice shows the limits of a strictly legal reading of it. This politicization is even stronger since the label of ‘victims’, or rather in Tunisia ‘martyrs’, was visibly glorified, and suddenly subject to significant symbolic and memory challenges. The creation of the Ministry of Human Rights and Transitional Justice has fueled this politicization, helping to delay the adoption of the law.
It should be noted that the reparations raised many issues, which are not only simply physical but also strongly related to identity, memorial and historical quarrels. The key issue for the success of Tunisian transitional justice would be to ‘de-fragment’ these categories and make them coexist in a dialogue relationship and mutual recognition instead of trying to ‘reconcile’ them through a unique and shared story.
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