DAAM periodical N°5: Transitional justice in Tunisia and Libya.. Current paths results, its role in establishing national reconcilliation and guarantees of non-repetition
(Bread, Freedom, Human dignity)… (Bread, Freedom, Social justice) … (People want to bring down the regime)… This how some of the Arab peoples in the region received the winter of 2010, in what was later known as the Arab Spring, in Tunisia, Egypt, Libya, Bahrain, Yemen, and Syria.
Different tracks after that was taken where some have failed as the forgotten and betrayed Bahrain’s revolution, other tracks went off course towards violence and civil armed war that was backed by and international interventions of various parties to the conflict like Libya, Yemen and Syria, or in other cases was buried deep down after the success of the counter-revolution as in Egypt, which entered a dark tunnel of human rights violations under military rule and as a result of the Gulf’s support and an international complicity.
And this occurred at the same time where there is a populist’s rise that has a radical nationalist tendency as they are achieving successes in elections and rising to rule in the most important countries of the world, ending in a foreign policy that ignores principles and values upon which the international relations was established. The rise of such currents came after when their people become fed up with the previous political administrations’ unstudied wrong interventions that led to the failed managing of The Arab spring issue as happened in Libya, Yemen, Syria, and certainly Egypt.
Despite the changes and political instability Tunisia remained the only blooming flower that is steadfast in the heart of the spring adhering to some of the Jasmine Revolution’s most important principles, civil rights and freedoms but despite this fact, they did not achieve clear successes in the economic, social and cultural rights front, and hey also didn’t carry out reform policies reform and restructuring of the most important state sectors that clearly needed that such as security and justice.
And because it is the only remaining blooming flower, therefore it is the only country in the Arab Spring that approved and constitutionalized a clear path of transitional justice that –was and will be- a leading experience in the Arab world that everyone would have been guided by had it not been for the mistakes made by the Truth and Dignity Commission and some politicians and their political parties who allowed the disruption of this track through a set of laws that their constitutionality or non-constitutionality have not been resolved due to the absence of the Constitutional Court and the Administrative Court’s inability to address the by the Truth and Dignity Commission’s, politicians’ and their political parties’ overwhelming wishes and desires.
In late 2011, trials related to killings committed during the revolution began before military courts; these courts normally have the power to consider crimes committed by military and security forces, later three primary military courts started their investigation, and have compiled issues geographically.
The transitional justice’s path began with strong political will, and it was supported by the Higher Authority for Realization of the Objectives of the Revolution, Political Reform, and Democratic Transition as in 18 February 2011 Decrees No. 7 and 8 were issued were related to creating two committees, the first is the National Commission on Investigation into Corruption and Embezzlement which work period extends from November 7, 1987, to 14 January 2011 and the second one is the National Commission on Investigation into the abuses recorded during the period from 17 December 2010 until the achievement of its subject.
On the second day, the first interim government led by Mohamed Ghannouchi issued Decree-law n° 2011-1 dated 19 February 2011, relating to the amnesty through which political prisoners were released, it is worth to be noted that it was inspired by Ben Ali’s law of 1988 for Releasing political prisoners which released many of them especially Islamists who were imprisoned during Bourguiba’s era, in reality, most of those who benefit from such decrees are members of Islamic movements.
In late 2011, trials related to killings committed during the revolution began before military courts; these courts normally have the power to consider crimes committed by military and security forces, later three primary military courts started their investigation, and have compiled issues geographically. And later Mass trials and El Kef’s Court trials started too where one of the defendants was The Former President Ben Ali, former head of the presidential guard, former interior minister, and five government’s general directors and several security leaders of top and middle rankings. El Kef’s Court of First Instance issued its rulings on 13 June 2012 and the Court of Tunisia did so on 19 July 2012.
In 11 April / May 2014, the Military Court of Appeal upheld the judgment issued by courts of the first instance in El Kef and Tunis in which Ben Ali was sentenced life prison judgment in absentia on charges of participating in murder, but it commuted the sentences issued against other high-ranking officials after re-characterizing the legal act from intentional murder to Severe violence that caused death, which made their sentences do not exceed 3 years of imprisonment according to the Criminal Code, these sentences resulted in the immediate release of the defendants as they had already spent the sentence From the period during the trials proceedings the day the revolution started till the day the judgment was issued.
These developments had led “the Association of Defending the Revolution’s Martyrs and Wounded” and “the National Coordination for Transitional Justice,” which was considered the democratic body during the national dialogue on the transitional justice law to try to mobilize to demand retrials for the released defendants through specified circuits to decide on the revolution’s martyrs and wounded issues– and this unlike what some international experts and observers of the Tunisian Transitional justice path claim that if the transitional justice path fails, the failure should be borne by Democracy support groups- is a point a view that way far from the Tunisian’s path reality. And that here is despite the fact that the democratic wings senses that victims of the Islamic movement are more favored upon their victims and despite their state of distress and frustration that was caused by the way of adopting and ratifying the Transitional Justice law and some of its amendments that are related to accountability and Truth and Dignity Commission structure procedures which was all a good critics that were proved to be correct later. As on 16 December 2011 the Organic law no. 6 of 2011 relating to the temporary organization of public authorities was issued which served as a temporary constitution for Tunisia and stated in Chapter 24 that the Assembly is committed to a legislate an Organic law for transitional justice, and later the Ministry of Human Rights and Transitional Justice was created, the same Ministry which decided on 14 April 2012 to launch a national consultative process on transitional justice in order to reach a common vision, and a the Law’s first bill was drafted and submitted to the Minister of Human Rights and Transitional Justice in late October 2012, Which was amended by the government and handed over to the Constituent Assembly for discussion on 22 January 2013, and remained trapped in the Assembly’s hands and because of the political problems in the country until it was included in the General Legislation Commission’s discussion in which they listened to the technical committee that supervised the national dialogue, representatives of civil society, and international experts, and they completed its report on 23 August 2013. And then it was trapped again in the Constituent Assembly President’s office in order to determine a date for the discussion’s session due to the severe political crisis that was taking place in the country back then, and the entry of politicians into a national dialogue to solve it, and the Tunisian National Dialogue Quartet was criticized for not prioritizing discussing the transitional justice law and putting it on the dialogue’s schedule despite being a fundamental law that the Constituent Assembly was bound to legislate according to the law regulating public authorities
After the Black Book was issued and after mobilizations made by civil society organizations affiliated to Islamists (the Tunisian Network for Transitional Justice) Mustapha Ben Jaafar passed the law to be discussed I a plenary session within 3 days and in 24 December 2013 it was published in the Official Gazette (Arra’id Arrasmi) by the title of the Organic Law on establishing and organizing transitional justice, which was adopted and approved by the Constituent Assembly in the early hours of Sunday’s morning of 15 December 2013 in the presence of only 126 members, including 76 Who belonged to Ennahda Movement and 15 members belonged to the Troika’s alliance (Democratic Forum for Labour and Liberties and the Congress for the Republic) and the presence of only six members of the Democratic wing, who all voted yes, with only one reservation made by one member of Ennahda movement
Under this law, the Commission was established which consists of 15 members who serve for a term of four years, with the possibility of extension for one year. The Commission is entrusted with the task of determining the responsibilities of the State’s organs or any other party in violations that occurred between 1 July 1955 and 24 December 2014, the date of its inclusion in the Official Gazette
This law is considered a result of the technical committee’s work which was established by the Ministry of Human Rights and Transitional Justice and most of its members’ representatives were related to civil society organizations. The approved law was amended twice: once by the Troika’s government and the second was by the Constituent Assembly by a majority of the Troika and under Ennahda’s leadership.
Under this law, the Truth and Dignity Commission was established which consists of 15 members who serve for a term of four years, with the possibility of extension for one year. The Commission is entrusted with the task of determining the responsibilities of the State’s organs or any other party in violations that occurred between 1 July 1955 and 24 December 2014, the date of its inclusion in the Official Gazette.
The Commission enjoyed various authorities and powers, and the Coordination Center for Transitional Justice which is considered a civil society organization objected on that, so did the Justice Association which demanded rehabilitation for some of the Commission’s members who are part of the Islamic movement too, there was also an objection on the inadmissibility of appeal against the results announced by the screening committee, which they tried to face through litigation using their right to legal recourse at the Administrative Court where they submitted a petition to delay and stop the implementation of the administrative decision issued on May 2014 on referring the chosen candidates for the Truth and Dignity Commission membership to the Constituent Assembly plenary meeting.
The Court rejected both of the two demands and illustrated that the legislator’s will was clear and explicit toward immunizing the Special Committee’s decision’s which are related to screening the files of Truth and Dignity Commission membership candidates from any objections done through appeal in courts in any possible way even by filing an “abuse of power” claim.
anyone who criticizes the Commission in any of its working phases receives a barrage of trumped-up charges as a counter-revolution agent from the President of the Truth Commission and dignity and she even went further and accused them of contributing to passing of the administrative reconciliation law ignoring the positions of these associations, their contribution, strong rejection to that law and participation in all coalitions and movements that were for the purpose of stopping the voting on this law in the Legislative Council.
In 17 June 2014, all of the 15 members of the Commission met and Sihem Bensedrine was as Head of the Committee, which had been intercepted by the National Coordination for Transitional Justice, and on the same day a member of the Committee Khamis Chamari who was a candidate for the same position resigned, after facing an objection to his candidacy by Justice and Rehabilitation Association.
Various different contradictory reactions came from different parties as a result for Bensedrine’s heading for the Commission, Islamists saw it as a victory, while it was considered by a large part of associations affiliates to the democratic civil current as a blow to the transitional justice path in Tunisia and they decided to boycott the committee considering that Bensedrine supported the protecting Revolution committees affiliated to Ennahda Movement earlier, and found that the final form composition of the committee as a result of relying on relative representation in selecting members of the screening candidates committee for the Truth and Dignity Commission membership which was stated in Chapter 23 of the law, and that allowed members of the Truth and Dignity Commission to be elected on basis of quotas and being pro-government, not on the basis of competence, independence, impartiality, and integrity and that the final composition of the Commission was an evidence of the track’s weakness.
The Truth and Dignity Commission handed over its final report to the Prime Minister and published its final report on its website, which was amended many times after its publication and submission, during the end period of the Commission’s work, in fact, the Truth and Dignity Commission was the weakest link in the transitional justice course in Tunisia because of its Chairperson conflicts and her collision with various parties, including the members of the Commission itself which has led many of them to resign and that put the Commission in trouble and risked meeting the possibility of lack of quorum most of the time. The resignations came after unfortunate events within the Commission, and it escalated quickly into a clash with state agencies ranging from the presidential palace to the National Archives and even happened with local and international civil society, and anyone who criticizes the Commission in any of its working phases receives a barrage of trumped-up charges as a counter-revolution agent from the President of the Truth Commission and dignity and she even went further and accused them of contributing to passing of the administrative reconciliation law ignoring the positions of these associations, their contribution, strong rejection to that law and participation in all coalitions and movements that were for the purpose of stopping the voting on this law in the Legislative Council.
and thus, there were clashes with the victims of violations, which was the foundation for the whole track from the beginning to regain their rights, dignity and compensate them for what happened to them during those long years, but unfortunately, they are at risk of being victims again. This confirms the view of the secular democratic current, that the Commission’s final composition was the best proof of the track’s weakness.
The rest of the Arab Spring countries remained trying to resolve its revolutions which have not yet achieve the required results, and some of them entered in a new era of unprecedented tyranny like Egypt while the rest of them are fighting among themselves with external support like Libya and Syria, or direct military and security intervention as Kingdom of Saudi Arabia did in Bahrain and Yemen.
In the end, the Arab Spring people’s slogans and shouts will not come true without formulating and consolidating strong paths of transitional justice that emphasize the brining down and reforming regimes and restoring eras of tyranny victims’ rights and dignity that ensure a comprehensive national reconciliation that would guarantee the non-repetition of such violations.
Just days after massive nationwide protests that began in the impoverished interior towns of Tunisia forced its dictator Ben Ali into exile, massive protests broke out in Egypt, leading to the fall of Hosni Mubarak.
Ten months later, Libya’s leader of 42 years and the one who had ruled the longest among the authoritarian leaders that fell in that period, was ignominiously killed. The term ‘Arab Spring’ signifies a season of growth and renewal. Instead, the season began with anti-dictatorship revolutions that promised political change and social transformation. But ended, with one exception, in renewed repression or a descent into armed conflict. There are several important factors and differences in context that can explain why transitional justice (TJ, for brevity) processes advanced in Tunisia but stalled elsewhere in the region including in Libya. This discussion is limited and will focus only on some of the overlaps and differences in the two processes, including what drove them forward and what might interrupt them.
Driven by grievances over unemployment, marginalization, corruption and political repression, the overthrow of dictatorships in Tunisia, Egypt, Yemen, and Libya created expectations that those long-standing grievances would finally be addressed, if not resolved, by post-authoritarian governments.
This did not happen, With the exception of Tunisia, the countries that emerged from Arab Spring revolutions, even those in which long-entrenched authoritarian rulers were ousted, instead descended into violent, deadly and continuing repression in the case of Egypt and still ongoing war in the cases of Yemen, Syria, and Libya. Moreover, the resulting instability, continuing conflict, the spread of military weaponry and lack of credible governance in Libya has led to instability beyond the country and affected neighboring countries in the region, including Mali and Niger. One point that has been made about transitional justice that bears borrowing is this:
“Transitional justice policies in the Arab world, in both their definitions and their forms, are likely to take a trajectory distinct from their predecessors in Latin America, Eastern Europe, and Africa. Every context is unique and thus requires a distinct set of mechanisms to address existing needs (and) while most traditional transitional justice literature conceives of a context in which transitional justice is thought of as a remedy for the period after repression and conflict…the time to discuss, consider, and conceive of transitional justice can occur even during ongoing repression and conflict.”
War and humanitarian needs before the pursuit of transitional justice
One consequence for countries like Syria and Yemen in which war has replaced protest is that conflict-related crime being committed in these wars to have overshadowed demands for accountability involving earlier human rights violations as well as large-scale corruption and marginalization from the pre-war dictatorship period. In Syria, for example, this has meant a focus on documenting conflict-related crimes and violations of human rights involving the Assad government, regional States, non-State armed groups, and powerful non-regional States such as Russia, Turkey, and even the United States. This has correspondingly meant little to no documentation or effort to find the truth around human rights abuses under Assad’s father or prior to the war – grievances that drove the revolution that should not be forgotten whatever might be the outcome of the ongoing conflict.
A second consequence for transitional justice as a result of revolutions turning into prolonged conflict is the need to prioritize responses to humanitarian needs, given their scale and the vulnerability of many victims, such as children and refugees. The situation in Yemen is an obvious example, where Saudi Arabian missile strikes using US and UK-supplied weapons have killed tens of thousands of civilians and denied millions of Yemenis access to food and health care. Setting the stage for investigating and prosecuting these war crimes and crimes against humanity is important, but this should not be done at the expense of ignoring the expectations of victims and citizens who have the right to truth and to reparation for the violence and denial of basic economic and social rights they are now suffering. In ICTJ’s experience elsewhere, documenting the wartime conduct of armed groups and their criminal responsibility will not be what victims and citizens consider of utmost importance; rather, they might prioritize truth and reparations. When those rights begin to be fulfilled, they will seek justice for the harms and losses they suffered.
A third implication is that justice and accountability initiatives for victims of individual human rights violations and for groups targeted for collective punishment by former (and in the case of Syria, current) authoritarian regimes have been sidelined by the focus on prosecuting individuals for conflict-related crimes. This makes it less likely that human rights violations that were the subject of Arab Spring grievances would be examined and acknowledged through truth-seeking and reparations measures. This is not suggesting that victims of more recent conflict-related crimes in Syria, Yemen or Libya do not deserve justice and accountability; but this means that an examination of both the root causes of sectarian division, the record of authoritarian rule and the impact of foreign military intervention in these countries will likely be put off if not altogether set aside in favor of documenting crimes committed during the conflict. Moreover, the focus on documenting crimes as such will — given the nature of what is being documented — privilege prosecutions of perpetrators as a transitional justice mechanism in terms of funding, international community attention and Western media coverage.
A transitional justice agenda for Syria, Yemen and Libya should therefore consciously make clear that these countries are both post-authoritarian and, perhaps eventually, post-conflict. What does this mean for Libya? It means that there should be an effort to broaden both the understanding of what parts of a country’s multiple experiences with authoritarianism, conflict and political upheavals TJ can address. This also means that there should also be an effort to ensure that technical assistance, funding and the design of documentation, the focus of assessments of ongoing and possible TJ initiatives, and technical assistance for TJ, in general, should ensure that the right to truth, the right to reparation and, where timely, institutional reforms, are not put off or given lesser priority than prosecutions.
In Libya particularly, this should also mean linking the root causes of continuing conflict and violence to the sectarian and identity-based tensions that were suppressed by the Libyan State under Gaddafi, exploited by foreign State and non-State interventions and now used by different armed groups to justify their existence and conduct. While waiting for the fragile peace in Libya to be consolidated and for a settlement of the violent disputes over political power, it may also be possible to explore transitional justice processes that can support the consolidation of peace, political settlement and ultimately, co-existence within its fractured society.
Tunisia’s transitional justice process, on the other hand, moved forward despite challenges and interruptions posed by distrust between secular and Islamist groups, and attempts by the former dictator and his allies to achieve impunity. What Libya can learn from Tunisia is the ways by which civil society engagement, the involvement of victims groups and locally-driven initiatives can help overcome challenges and consolidate steps already taken.
Mustapha abd jalil
The overlaps and differences in the Tunisian and Libyan transitions
It is important to emphasize that despite the characterization of the Arab Spring as a regional event, there are inherent, significant differences between the Tunisian and Libyan contexts [as there are among the countries that underwent transitions in that period] that help account for why transitional justice has advanced in Tunisia but not in Libya – or elsewhere in the region. Tunisia, in the words of ICTJ’s former Tunisia country program director, “remains the only flower of the Arab Spring.” The demography, history and even geography of Tunisia, as well as social movements that confronted dictatorship even prior to the Arab Spring, were built around organized workers and marginalized communities in its poorest governorates and neighborhoods. The large percentage of young, unemployed, but educated and social-media savvy citizens was arguably the most decisive factor in winning a revolution that had been in the making since 2008.
The country’s first post-dictatorship president has one of the clearest explanations for why the transition in Tunisia did not degenerate into armed conflict as it did in Libya and elsewhere in the region. “Tunisians, “ according to former president Moncef Marzouki, “are neither smarter nor more peaceful or tolerant than other Arabs or any human beings.” He says:
“Fortunately the population of Tunisia is much more homogeneous than that of the neighboring countries. Made of 99% of Arab Moslem Sunnis. The middle class represents a large proportion of the society. Our military is professional, has no history of being involved in economic activity or in politics. Civil society is strong, vigilant and yet responsible, inflexible and yet peaceful. Most importantly, secular and Islamist opponents to the dictatorship have learned to go beyond their disagreement and work together at least since the late 1990s. It’s easy to understand that reaching a political consensus is much less probable in countries where you have an extremely heterogeneous population like Syria; or in countries where you have a military institution deeply involved in politics and economy like in Egypt; or in societies without a strong civil society like in Yemen or Libya.”
Libya and Tunisia were ruled by authoritarian regimes for most of their post-independence history. Those authoritarian regimes relied on what has been described as the “mutually-reinforcing” abuses of repression and corruption to maintain power. Both Ben Ali and Gaddafi cast themselves as rulers protecting their countries from radical Islamists. But their versions of secularism manifested in different (and initially, even opposing) ways. Ben Ali presented himself as a pro-Western successor to the equally authoritarian Habib Bourguiba, firmly on the side of Western countries that ignored his regime’s corruption as long as he pursued a common counter-terrorism agenda. Gaddafi, on the other hand, portrayed himself as a believer in Nasserite-style socialism and as a supporter [and funder] of national liberation movements that were hostile to Western governments. As one comparison of Ben Ali and Gaddafi put it:
“Tunisia watchers could see that Ben Ali was the darling of the western embassies. Well known to the French and American militaries, he was someone the diplomats believed could be trusted to maintain Tunisia’s secular, pro-western policies and keep the country out of the orbit of its dangerous, larger neighbor, Gaddafi’s Libya.”
That Gaddafi, like Ben Ali, eventually worked with Western counter-terrorism efforts against Al Qaeda, and openly courted Western leaders such as Tony Blair, Nicholas Sarkozy, and Silvio Berlusconi showed that self-interest and his regime’s continuity in power through his son was more important than his supposed ideological preferences. Unlike Gaddafi’s single-party rule, Ben Ali’s regime held elections in which other political parties could, in theory, participate [even if Ben Ali would always win]. These elections gave Tunisian opposition activists, labor organizers and Islamist opponents of the regime the experience of challenging dictatorship and the opportunity to openly organize even under repressive conditions, experiences and opportunity that Libyans did not have under Gaddafi’s rule.
The presence and role of civil society in articulating grievances
The impact of Ben Ali’s State-capture-based corruption, the inequality and rural marginalization caused by World Bank-supported economic policies and his violent suppression of both the Islamist movement and leftist labor agitation within the national labor union UGTT eventually combined into a common set of grievances that primed the revolution. These grievances have been largely reflected in the design of transitional justice mechanisms in Tunisia. On the other hand, because Gaddafi initially and generously shared oil wealth with the population, it was often said that Libya “enjoy(ed) a relatively high standard of living by African standards.”But this did not last and like other rulers in the region’s oil-rich kingdoms, the trade-off to the relative fulfillment of economic and social rights was the surrender of political and civil rights.
Moreover, as Juan Cole points out, Gaddafi “became vindictive against tribes in the east and in the southwest that had crossed him politically, depriving them of their fair share in the country’s resources.” Cole says that in the decade before Gaddafi’s ouster, “Extreme corruption and the rise of post-Soviet-style oligarchs, including Qaddafi and his sons discouraged investment and blighted the economy. Workers were strictly controlled and unable to collectively bargain for improvements in their conditions. There was much more poverty and poor infrastructure in Libya than there should have been in an oil state.”
Hence, while working-class and poor communities among the two countries’ populations had in common grievances involving corruption, political repression and increasing marginalization, the presence of a relatively experienced, organized and working-class-led civil society in Tunisia made a difference, both during the events leading to the transition and in the process of determining what transitional justice would look like in the country. The revolution in Tunisia was made possible by working-class and youth-led movements honed in the ways of challenging a dictatorship. The grievances they shared – corruption, unemployment, and the repression of both Islamists and left-wing activists – made it possible to design a transitional justice agenda that would address those larger society-wide grievances as well as different individual and collective experiences of pain, loss and injustice. These movements and the post-dictatorship political parties that they are linked to were the foundations for civil society engagement once transitional justice policy-making was underway in Tunisia.
The process and outcomes of transitional justice policymaking
By comparison, as the scholar Gilbert Achar points out, “in countries like Syria or Libya, due to extremely dictatorial governments, there were no preexisting autonomous organized groups, whether political or even social.” Whether or not the transition in Libya would have turned out differently had there been no months of sustained airstrikes by Western forces will always be a matter of speculation. But the combination of Gaddafi’s militarized response and the foreign military backing for the armed movements against his regime changed the revolution. It transformed different tribal groups that were coalescing into a broad but peaceful movement into one in which the same people were characterized as thuwars – rebel fighters in a war.
Tunisia’s process was marked by meaningful civil society engagement. The earliest TJ measures were ad hoc and short-term responses to immediate needs of victims and ways to quell rising expectations. A Ministry of Human Rights and Transitional Justice was created. Urgent reparations measures were offered. In 2011, one of three ad hoc commissions created was a ‘National Fact-Finding Commission to look at violations committed during the revolution. This commission reported 338 dead and 2147 injured.
Of all the countries that went through transitions in the Arab Spring, only Tunisia succeeded in creating a functioning truth commission, the Instance Verité et Dignité or IVD. The 2013 organic law that created the IVD or the Truth and Dignity Commission was a product of wide-ranging, public debates over what a Tunisian transitional justice approach should be. The law governing transitional justice was passed by an elected parliament, but not until after an official national dialogue was carried out across the country. The dialogue process was a deliberate, democratic and, novel exercise for a country that had just emerged from years of dictatorship. The commission itself was constituted through a flawed but nonetheless significantly consultative process. Even with the internal disputes and external challenges it went through, the IVD gathered over 60,000 statements and conducted several public hearings. As of this writing, the IVD is set to release its final report.
In contrast, Libya’s earliest attempts at transitional justice policymaking under the un-elected National Transitional Council (NTC), were characterized by “the lack of transparency, the question of legitimacy (and) fears that the laws served the interests of specific groups (such as protecting members of the NTC from future prosecution and appeasing militia groups)” According to former ICTJ expert Marieke Wierda, “unlike in Tunisia, there was no broad public consultation on the law (Law 17), despite the importance of the social issues at stake.” Subsequent changes to the law in 2013 (Law 28) by the elected General National Council (GNC) led to improvements, such as a Fact-Finding and Reconciliation Committee that more closely resembled a truth commission. Despite these changes, the FFRC has remained non-functional and “there was no known activity by the commission during the year (2018).”
Aside from the IVD, Tunisia’s TJ law creates several institutions that are envisioned to carry on the transitional justice process after the IVD submits its report. The law creates specialized criminal chambers to hear and try criminal cases referred by the IVD. In Libya, criminal prosecutions are focused on cases now pending at the International Criminal Court (ICC) involving crimes committed during the conflict. The Tunisia and Libya transitional justice laws vest the IVD and FFRC respectively with power to calculate the amount of compensation for victims, alongside other forms of reparation. The two laws also create a fund from which the compensation payments will be made. The focus on compensation and the apparent preference for a judicial approach to compensation suggests that the attitude toward reparation in both countries (and perhaps across the region) is still tied to the payment of money – which can create problems in the long-term in countries where competition over victimization exists.
While the revolutions in both countries were driven by corruption as a grievance, the Libyan law only contains a brief provision “encouraging the returning of illicitly-gained public funds” which, if returned “voluntarily” will extinguish criminal proceedings. While the Tunisia version creates a more complex arbitration process, the idea is the same: a negotiated outcome in which the return of stolen assets can extinguish liability. In Tunisia, and as it should in Libya, this raises questions around the transparency of the arbitration process. Already, a so-called “administrative reconciliation law” was passed in Tunisia granting amnesties to government officials who were complicit in corruption under Ben Ali but who claim to not have profited from it. ICTJ has criticized that law, along with the civil society and youth groups that once carried the revolution. The Libyan equivalent has not yet run into the same problems simply because it hasn’t been implemented. But because these blanket amnesties can interrupt (or even end) transitional justice, it will be important for Tunisians to step across ideological and sectarian boundaries and oppose impunity.
Both Tunisian and Libyan efforts at transitional justice policymaking have recognized distinct grievances that were emblematic of each country’s transition. For Tunisia, the marginalization of regions that were excluded by Ben Ali’s economic and social policies and targeted for repression because they were bastions of Islamist or left-wing opposition is articulated as a distinct grievance. In Libya, the displacement of civilians is regarded as a specific violation requiring transitional justice policymaking. The treatment of displacement as a subject of transitional justice is important; if it is taken seriously in Libya, it may help offset the implications of the UN-sponsored Misrata-Tawergha agreement in which the people Misrata – seen as anti-Gaddafi — are to be given compensation before the displaced people of Tawergha, seen as pro-Gaddafi, can leave internal displacement camps and return to their original communities. Because this effectively makes a trade-off between the right to reparations and the right of displaced persons to return, it is problematic.
What can interrupt transitional justice?
While both the Tunisian and Libyan laws mention reconciliation, the Tunisian process highlights dignity more than reconciliation while the Libyan law not only states “(its) objective is to reach national reconciliation” but also refers to “community reconciliation.” These different emphases reflect the contexts of the two countries and how their transitions unfolded. Unlike Libya, Tunisia’s divisions are not tribal but more religious and ideological. Nonetheless, those divisions led to an early distrust of the transitional justice process among secular activists, who saw it as one that would favor the many Islamists, who were victims of human rights violations. These divisions have interrupted transitional justice in Tunisia a number of times, creating tension and even instances of political violence. If there are issues that could interrupt the pursuit of transitional justice in Tunisia, it would be any of two possibilities: the possibility of sectarian and secular groups escalating these tensions and, equally problematic, the possibility of an amnesty for corruption and human rights violations that could seriously undermine the process itself.
On the other hand, the features of the UN-sponsored Misrata-Tawergha reparations-for-return agreement underline the problematic way reconciliation is framed in Libya. The agreement is supposed to “achieve and consolidate reconciliation, peace and social harmony between Misrata and Tawergha.” In the process, however, it may legitimize the extraction of vengeance in what should be a transitional justice process that avoids it. As discussed at the beginning of this paper, the shift from protest to war led to the de-prioritization of transitional justice measures dealing with the 42 years of Gaddafi’s rule and an emphasis on war crimes, crimes against humanity and human rights violations committed during the 9 months of armed conflict. This kind of paradigm shift during a transition has been a subject of reflection within ICTJ: “in delicate transitional moments, political forces can easily sideline or quash victims’ demands for justice, while formulaic approaches, sometimes championed by the international community, can overwhelm weak institutions and lead to very limited results.”
Ms. Yamina Zoghlami, a Member of the People’s Assembly for Ennahda Movement, criticized what she described as the failures of the transitional justice path in many aspects, but she did not hide her aspirations that the experience would continue even after the end of the Truth and Dignity Commission’s term until the wounds of the past heal and the page of injustice, arbitrariness, and repression gets turned.
By the proposal provided by Ennahda movement, specifically, the one submitted by Mr. Samir Dilou, transitional justice was added to the Ministry of Human Rights. After these years, do you see that this choice was right or not?
The choice was correct, but there were errors in the course, Mr. Samir Dilou was the one who proposed adding the issue of transitional justice to the Ministry of Human Rights, and this position was adopted by Ennahda Movement, perhaps because of Mr. Samir Dilou’s character as a human rights activist. But when the Ministry started to work on drafting the law, it was not formulating it alone but the civil society was also involved.
The Transitional Justice Law in Tunisia was not concerned not only with gross violations of human rights but also financial corruption, this is a unique experience in the world. This law was the product of national consultation and took around a year and a half to prepare the law, and there was support from several international partners. The path of transitional justice is not confined to the Commission but it was an integrated one that has begun before the Commission and must continue after its submission of its final report. Support was also provided by several international organizations for such national consultation on drafting the law.
If Mr. Samir Dilou was given the option to choose between the government and civil society to supervise the transitional justice experience, I think he will choose civil society now, after 8 years of experience of transitional justice, which I considered an integrated comprehensive path that is not limited to the Truth and Dignity Commission to carry out, even after the end of the Commission’s term, it is a must be the State’s responsibility, I believe it is better to be supervised by civil society, and it would also be more useful for the body that is politically committed to this issue to be independent of all the attraction and tensions.
A large part of the civil movement abstained from participating in the dialogue, and there were accusations that Ennahda Movement controlled this dialogue, and international organizations like UNDP and the International Center for Transitional Justice were accused of adopting Ennahda movement’s vision on transitional justice, and the transitional justice law was voted on at night and there were objections on it by several associations and parties. Do you see that there was a slow pace of political movement inside the parliament, which forced some parties, including Ennahda, to pass this law quickly before getting out of the ruling position?
A large group of human rights activists in Tunisia considers that the human rights field is their own and they did not accept the existence of new people who would share with them the human rights field, and therefore they abstained from participating in the dialogue on transitional justice. The law’s slow passage in Parliament was the result of a political choice. The political choice, which is convinced of choosing the Revolution Immunization Act and choosing laws similar to Iraq’s uprooting Act, but in a slightly lighter version, one that prevent those who joined the old regime from participating in political life and this prevention was supposed to be more than 10 years.
We did a peaceful revolution and we supported the Constituent National Assembly, which should have removed these characters from political life such approaches existed, and they had their arguments and had those who believed in it with a firm belief and I was among them, I was one of those who proposed the Revolution Immunization Act, it was originally the Congress for the Republic political party’s proposal but we developed it. We have added chapters that deal more with accountability and prevention.
Among other trends and politicians, they are those who believe that this field is a field of transitional justice after a closer look at comparative experiences in transitional justice through the Ministry of Human Rights and Transitional Justice’s work, in which I participated, I have changed my conviction that Tunisia should adopt the transitional justice system as an integrated comprehensive system.
While voting on it, a number of amendments were made, such as the point related to election fraud, what’s your opinion on that?
The Tunisian Transitional Justice Law had an advantage, which the fact that it was not only related to human rights violations but also to financial corruption, and at this point, Ennahda movement added two issues, forced migration and electoral fraud in the amendments that were added to the law. Serious violations cannot be resolved through reconciliation but they go directly to specialized circuits, while financial corruption issues have the possibility to be resolved through reconciliation.
There was disagreement about the way of choosing and electing members of the Truth and Dignity Commission, was there a certain quota for parties? There was a mix of party choices tied to relative coexistence and not parties’ references.
We in Ennahda Movement bloc sometimes chose competent people with no relation to us but only out of respect for the needed coexistence and members of the Truth and Dignity Commission were elected in accordance with other parliamentary blocs.
In all democratic experiments, bodies will not be fully centralized from the outset, and so we are now centralizing and balancing some other bodies such as The Constitutional Court, which should now be centralized. The members of the Truth and Dignity Commission were chosen in full conformity and consensus.
The issue of extending the Commission’s term. Is Parliament responsible for the conflict that happened over the Commission’s duration which started since the announcement of who will head them and caused splits and divisions?
This is an independent body whose members were elected by consensus the first conflict signs appeared first between Al-Chamari and Sihem Bensedrine, and after submitting the files and when the organization started its work, there were several resignations in the organization, and some members were also exempted, but since it is an independent body the parliament did not interfere in their internal disagreements.
The debate was opened every time within parliament when the budget of the body was voted on, and if the budget of the body was not included within the state’s budget, there would be no crisis and it would not had been voted on at the first place, as some MPs were forced to vote on the budget, each time the Prime Minister says that the vote should take place because it is apart from the general budget and if the Commission’s budget was not voted on, there would be no voting on the State’s budget as a whole.
The Parliament also intervened to fill the vacancy after a major work by a small committee within the Parliament and this request was filed for to a plenary session, but the absence of one member in the voting session caused the failure of the whole process and settled the issue of filling the vacancy, and the Parliament, with all its bloc and its trends, bears full responsibility in this matter. So far, there is the problem of the Commission’s quorum and everyone bears responsibility for this.
What do you think about the position of the Ennahda movement regarding the reconciliation law and what are the reasons behind the support of some of the movement’s members for it?
The Administrative Reconciliation Law is a law proposed by the President of the Republic, who has the right to submit legal proposals and it should be noted that it was the first attempt to reconcile with the old regime in 2012, it was presented as a rescuer of the country within the framework of the Save Tunisia Group’s experience. This was the first meeting between the old regime and the democratic group, but we, Ennahda movement, we have developed our deep understanding of the Tunisian political reality. The reconciliation law has been passed within the framework of the consensus. The reconciliation law has been transformed into an administrative amnesty law in eight chapters.
There is a very difficult equation that was put before us, it is to maintain the agreement with Beji Essebsi to preserve the country’s democratic experience and maintain the transitional justice system, but the reconciliation law was amended and several chapters that were subject to the great controversy were canceled.
Do you consider the experience of the Truth and Dignity Commission and the experience of transitional justice as a whole in Tunisia to be a success?
The many hearings contributed only to reducing the victims’ burden, although the sessions were intensive and did not match the Commission’s material possibilities.
The transitional justice system must end up with a comprehensive national reconciliation and turning the past pages of human rights violations in all their forms and recognize the truth. This system must also include offenders as well, because transitional justice is not only about the victim, as in some very successful transitional justice systems the executioner became an active actor and part of the system. It is certain that the system in Tunisia will be successful in some tracks and failing in others.
Introduction:
It is difficult to talk about transitional justice and its tracks in a country like Libya, a country that has been through several armed conflicts at different times and where governments, legislative authorities, and armed groups are numerous.
Although Libya has not known internal armed conflicts or the civil wars in its recent history since its independence in 1951 and despite the armed nature that accompanied the change and revolution in Libya in 2011 and beyond, this did not prevent at first any promising democratic transition, in 2012 the first democratic elections were held in Libya, which established a legislative and executive authority and pushed Libya toward stability. However, the democratic path stumbled in favor of the military track, which resulted in a constitutional crisis in the country and the duplication of legislative and executive authority there.
Naturally, any stage of democratic transformation or change in the political system necessarily requires a legislative, societal and political path to transitional justice. This will help to support democratic transformation by revealing the truth, reparation, accountability, and institutional reform in order to achieve genuine national reconciliation that will help to address social fragmentation and push the country toward stability and development.
But in Libya, successive authorities have failed to adopt a real project of transitional justice based on solid foundations, although some timid fail attempts to put the wheel on the track have emerged, but it was chaotic and represented the lack of political will among the most notable characteristics of the Libyan transitional justice process.
The Interim Council legislation “a stumbling start”
The beginning of the track was with the interim National Transitional Council (NTC) which was the first political consensus authority after the revolution, although it was not elected, but it had already taken the initiative at a very early stage to issue the first transitional justice legislation on 2/26/2011, Law No. 17 of 2012, on the establishment of national reconciliation basis and transitional justice, which came in 18 articles, and it was a proposal from the Ministry of Justice through an expert committee, but it was not discussed by civil society organizations or victims, and in fact, was an incompetent law that was unable to confront the heavy legacy of abuses inherited by the former regime and was unable to address the recent violations that have marked the revolution and change in addition to overlooking the issue of institutional reform which was never stipulated in the law.
What was important in this law was its establishing of the Truth and Reconciliation Commission, but its composition came totally in a judicial form, in which women, young people, minorities and victims were not represented, which made the Commission powerless, uncertain and unable to deal with complicated realities.
The law has not really had a real impact and has not contributed to pushing toward a state of stability, consolidation of democratic transformation and treatment of the community’s crack since it was not a comprehensive, integrated law; it was just an urgently issued act and was not subject to community consultations or open debates.
The same legislative authority issued later subsequent legislation, ones that even included dealing with specific incidents, which the Act was unable to address, inter alia, by amnesty from some crimes and release of indiscriminately arrested prisoners during and after the armed conflict in 2011, which required a special legislative treatment so the law No. 35 of 2011 concerning amnesty was issued.
In conjunction with it, the NTC passed another legislation No. 38 of 2012 on some transitional procedures that reinforces the concept of impunity, and gives the opportunity to those who have committed violations to escape accountability as article IV of the Act provided that: “There is no punishment for the military, security or civilian operations that the February 17 revolution required in order to make the revolution succeed and in order to protect it.” Such a provision opens the door to impunity and gives legal cover to a specific group of society that is allowed to commit violations without any accountability, especially as the criteria for applying the legal text are flexible, broad and subject to different interpretations, which can easily be exploited.
Dr. Wahid al-Farshishi has considered that the recognition of the revolutionaries’ legitimacy in criminal tracing operations represents a threat to the path of transitional justice that may deviate toward retaliatory justice.
And a continuation of the legislative disinformation policy and the absence of a specific strategy that shows the legislator’s purpose, the Transitional Council issued another law, which emptied the Transitional Justice Law from its content and established a new concept, namely, discrimination between victims, as political prisoners were referred to their own legislation, although the Transitional Justice Law includes them, and thus the Law No. 50 of 2012 on prisoners was issued, The law specifically is concerned with those who deprived of their freedom in prisons and private detention camps because of their opposition to the former regime, whether military or civilian, from 1.9.1969 to 15.2.2011, this law established a concept, that it is acceptable to issue legislation for specific cases of violation.
General National Congress legislation “continuing chaos”
Even when the legislative power was changed and the National Congress was elected in 7.7.2012, the same legislative policy remained in place; the beginning was with Act No. 29 of 2013 on Transitional Justice and National Reconciliation.
This text has established that the concept of transitional justice includes some of the effects of the February 17th revolution, namely (attitudes and actions that led to the collapse of social fabric and actions that were necessary to fortify the revolution and were included some behaviors which are in accordance to its principles). This text has broadened the definition of the concept of transitional justice in the Libyan case, including crimes and violations committed by revolutionaries or combatants under the flag of the Transitional National Council or other authorities. Thus, the law did not limit itself to dealing with violations of the former regime, but anyway its consequences remained relatively non-existent.
The results of the investigations have not been published despite the fact-finding Commission’s formation, on one hand, and the legislative authority has disavowed its content by issuing parallel legislation that is supposed to be at the core of the transitional justice work, whether before it was issued and after it has been issued it led to its failure and after it was issued it emptied it of its content.
For example, the Law No. 13 of 2013 on political and administrative isolation, which severely excluded those who worked under the Qaddafi’s regime and held political positions, The Act had created a deep division of society and was supposed to leave this issue to institutional reform, a fundamental pillar of transitional justice through which through it corrupt people and who did harm to public money are removed, it also came in a selective and non-objective criteria, failed to establish a mechanism for its application and violated civil and political individuals rights and promoted discrimination between citizens through a broad criteria.
The General National Congress did not violate the former legislative authority traditions of discrimination between victims and the issuance of legislation for specific cases of violation, as it passed Decree No. 59 of 2013 concerning the Abu Salim massacre and distinguished it from other crimes and considered it a crime by decree, not by law. The Commission was given the competence to investigate and to give it the entitlement of genocide and the resolution focused on compensation and financial benefits.
The National Congress did not only distinguish this crime by its decision but also reinforced this by Law No. 31 of 2013 concerning the report of some provisions concerning the Abu Salim massacre, where it canceled the previous decision, considering it a crime against humanity and focused on benefits and compensations.
House of Representatives legislation “Legislation issued during a political division”
Even the House of Representatives which was elected in 25.6.2014 was not different from its predecessors in its absence of legislative policy and vision, which was embodied in the promulgation of Act No. 6 of 2015 on amnesty, which provided for conditional amnesty for all Libyans who committed certain crimes from 15 February 2011 until the promulgation of the law declaring that criminal proceedings have been terminated, sentences their consequences have been dropped.
One of the most prominent conditions established by law for amnesty is the written pledge of repentance, the restitution of the proceeds of crime, reconciliation with the victim, the delivery of weapons and instruments used in the Commission of the crime, and the return of the situation to its origin in offenses of attacking property and movable property.
The law also does not apply to all crimes. The amnesty excluded its applicability to terrorist crimes, crimes of drug-trafficking, crimes of arrest and indecency, murders for identity, kidnapping, torture, border crimes and corruption (article III).
What made this law more critical is that it came at a time of political division and military conflict and that it was necessary for such a period to seek to redrafting and activate the entire transitional justice project, not to issue an amnesty law that was widely debated on its effectiveness and timing.
Transitional Justice in the Constitution bill
The Constituent Assembly has tried to formulate a constitution bill dealing with the issue of transitional justice and national reconciliation in the transitional measures chapter from articles 197 to 200, and it is clear from these texts that these measures are not linked to a specific time era, and they responded in general to include all violations of human rights compensation, and organized a mechanism for restitution of real estate and movable property but did not oblige the legislature to pass a law for Transitional Justice
Transitional Justice in the Libyan political agreement
Even the political agreement which was signed in 17 December 2015 in Skhirat was not perceptive in dealing with the transitional justice issue and deal with it improperly, as it is noted generally that it reduced the essence of “transitional justice” which is “reparation” in favor of the idea of “settlement at any cost,” which was amplified in the agreement although normally there is no reconciliation without justice.
That included the absence of compensation and the absence of hearings to find out the facts, as the agreement was limited to demanding the activation of the Transitional Justice Law No. 29 for the year 2013 and did not discuss f drafting of a new bill to amend the law defects, and due to change in circumstances and the development of the accompanying events.
And the agreement also introduced bodies without a precise definition of its functions as a body to reveal the truth, a Commission for Human Rights, and a body to monitor violations, and this with no doubt would cause confusion in the performance of these bodies, uncontrolled overlapping, and lack of coordination.
This political agreement also lacked to determine the activation of a mechanism transitional justice, reconciliation, fact-finding, and documentation. , and neglected to identify the basic steps and mechanisms in vital issues, and one of the most prominent issues of those are issues of detainees, prisoners, missing and displaced persons
The future of transitional justice in Libya
As proved by monitoring the transitional justice course in Libya and following-up its details, it is clearly evident that it is not enough that the authorities are elected to ensure the transitional justice law’s success, as holding extensive consultations with civil society and victims representatives to create a societal will should occur, and that neglecting the participatory nature of the transitional justice leads ultimately to the failure or at least stumbling of its course.
The path of the transitional justice will not succeed in light of the legislative authorities’ exploitation of the situation and circumstances in order to adopt legislation that would serve political trends and tendencies in particular, as this would result in its deviation from their true objectives and would necessarily lead to the transformation of this legal mechanism from justice to revenge and settling scores
In addition, all aforementioned above, the basic factor which is the weakness of state institutions and their vulnerability and r inability to work regularly, and the deterioration of services, instability and economic and security chaos and repeated military clashes that happen from time to time contributes to blocking the course and lead to the political will’s failure or its inability at least.
Finally, despite the multiplicity of authorities and variety of political backgrounds and successive governments, they are all similar in their absence of political will to adopt an integrated project for transitional justice, legislative policies are random and confused and based on a political reactions, and all transitional authorities do not have a real and decisive political will to embrace the project in the light of the absence of freedom of opinion and community’s and victims’ will, and absence of their participation in public consultations and open community dialogue that shall create a real strong community is willing to contribute to building an integrated, balanced and applicable transitional justice project.
Activist Emad Raqiaa, head of media committee for the return of Tawergha people, has been struggling to end what he called “racist and unfair terms” imposed on the return of Tawergha’s sons. In the next interview, our guest dives deeply into the people of Tawergha’s sufferings and explains their current situation.
The humanitarian crisis of Tawergha branched out between the people’s determination to return, and its transformation into a political inducements case mad it a real new challenge for the Government of National Accord. Can we exactly know what happened in this crisis briefly?
Since the beginning of the crisis in 2011, the people of Tawergha have not taken any violent approach in order to achieve a safe return, whether on the people’s level, Tawerghan tribes or the local Council at that time.
After the split that happened in the country as a result to “Libya’s dawn operation”, Al-Thani’s government that operated in the east worked on handling the issue of Tawergha politically, where it tried to interfere in some matters and agreed on establishing a municipality in eastern Libya to achieve victory after the Accord government entered Tripoli. As for the Government of National Accord, it tried in all ways to make a change in the situation by making the Tawergha’s people return happen under the Government of National Accord to achieve a political gain that would be in their favor in case any international discussions on the situation in Libya occurred.
The implementation of the Government of National Accord Presidential Council’s declaration in early February 2018 that aimed to the returning of displaced persons to their cities has been hampered by the objections of Misrata’s city components to certain provisions of the agreement, particularly those relating to reparation and compensation for those who were affected by the people of Misrata. Do you think that the Government of National Accord bears full responsibility for the grave violations that occurred for the displaced
Of course, it is the authority’s responsibility towards its people, as well as Misrata’s instigators and actually, they are numerous, primarily some members of the Municipal council, as many actors in Misrata’s crisis scene did not recognize the Government of National Accord bears in the first place. As for reparations, its results were disastrous, as the return was achieved in return for money, but in reality, a real return did not happen at all, as the city still suffers from the non-existence of the most basic elements such as water and electricity. The terms of the agreement were extremely unfair and represent a violation of human rights, and the Elders and Shura Council presented a document, in which reasons for refusing the agreement were stated, it included insult, racism, egoism, and domination of powerful groups over other vulnerable citizens groups.
The two Libyan cities of Tawergha and Misrata signed a reconciliation charter between them ending a seven-year dispute that states the return of the displaced people of Tawerrgha to their city from which they left in 2011. Yet the return has not been completed. In your opinion, what are the reasons that prompted the displaced to not return to their city?
The reasons are numerous, that include the refusal of Misrata’s local authorities to give the city its administrative independence, preventing the people of Tawergha from participating in the municipal elections, the dominance of the central military zone, which is mostly composed of Misrata’s citizens which control the city’s inside and outside gates, and the throwing tons of garbage in the city despite a lot of warnings issued against the seriousness of this issue. The residents also felt unsafe because of the large number of militias that were waning the coastal road that passed through central Tawergha and sometimes assault the residents, and even the police station that had just opened up was not able to perform its duties professionally because of armed groups harassments.
Have all the terms of this agreement been implemented? Did Tawergha get the agreed compensations?
Not exactly. But the sums were divided into parts and not all the people got their share because of the lack of liquidity and the presidential Council’s procrastination in handling financial matters, not to mention the confusion that Tawergha’s local Council suffers because of its officials unilateral acts and opinions, unstudied decisions, and the deliberate and random decision-making for issues related to people’s fate and which resulted in spreading confusion in the social fabric of society after signing the agreement, which the people of Tawergha consider disgraceful and an insult to all that patience they had through all these tough years.
What is the role of the Presidential Council in re-providing basic services in the city of Tawergha in order to facilitate the return of the population to their own city and to enjoy normal conditions basic services?
There is no real role for Misrata’s local authorities because of their domination over the city by force of arms and threats and anything actually may happen to displace the people. The presidential Council decided the matter once they signed and they did not know what to do afterward, they considered the signing itself a political victory and did not care to consider what would happen after that. Despite what we see, I mean the Head of the Presidential Council and the Head of Tawergha’s local Council sham meetings, unfortunately, there is no real implementation for decisions in reality.
Impunity has spread widely, and successive governments have not taken steps to investigate, prosecute, and punish officials who have committed abuses, whether in the security forces or elsewhere in the government, and militias and other armed barely have affected court proceedings that have been operating. How can victims be identified, get compensation for their damages and get sure that this grave violation will not be repeated
Reparations and justice towards victims are crucial, but the control of armed groups over the judicial and police stations and victims’ lack of confidence in reaching justice locally will provide a long way for victims at this stage and what we can only do is to document crimes, make files and prepare for another stages, especially when the criminal starts to play all angles in order to be influential and seek to clean up his image before the public opinion, unfortunately, victims are waiting for the construction of the State and there is no use under the present circumstances to seek to achieve what you have mentioned.
17 December 2018 represents an important date for Tunisia’s transitional justice process, it is the date where the Truth and dignity Commission processing stage ended, the stage which lasted for more than four years, it was one of the longest time periods for a transitional justice system in nearly 40 experiences in the world. The Truth and Dignity Commission in Tunisia began its work in June 2014 after a preparatory course for transitional justice that began immediately after the revolution (weeks after 14 January 2011) and it had a profound impact on forming the Tunisian transitional justice experiment. The preparatory path has given rise to a common perception of victim and violation definitions and provided a broader than all previous experiences, a relatively long time-frame (over 58 years) and a composition for the Commission that was based clearly on the partisan bias.
It is well noted to everybody that the Truth and Dignity Commission faced many difficulties and challenges, internal and external, political and civil, legal and procedural. However, it managed to complete its pledge, achieve some successes and present its final report. The Commission’s successes is relative, as each success faced a challenge that reduced its success rate, as the special transitional justice circuits were threatened with the reconciliation bill, and reparation decisions faced the economic crisis, the Commission’s Archive was threatened to be suspended within the National Archive, and the final report was not published in the Commission’s Official Gazette and the Commission’s Board faced the executive and legislative authorities failure to adopt and implement them. Despite all these new difficulties and challenges, a new stage of transitional justice is being set in the post-commission or implementing the recommendations phase, i.e. the most important stages that are being established to build an emerging democracy.
The importance of this new stage (implementing the recommendations) in the transitional justice path is derived from the importance of applying the reform process in the democratic transition in Tunisia. Tunisia is no different from other countries that have experienced transitional justice and the Tunisian elite is no different from those in other countries that have chosen to defend transitional justice as they believed that it is important to establish a deep and integrated reform path resulting from deep analysis and dismantling of outdated human rights systems. This comprehensive and integrated approach to institutional reform would provide the most viable chances for establishing democracy in Tunisia compared to the limited initiatives in some countries that have experienced democratic transition and have not been promoted to be democratic states, as these reforms have sometimes been superficial and often difficult to implement. These countries democratic transition ended in a setback.
In addition to all the profound reforms that have been achieved in Tunisia (a new constitution, revision of some laws, ratification of international treaties, the establishment of independent structures and bodies, new procedures…) Much remains to be done to dismantle the authoritarian system, combat corruption and build new systems that respect human rights, democratic principles and good governance, based on new proofs, statistics, testimonies, cases and narratives that were compiled during the Truth and Dignity Commission years of work. Based on these integrated data that produced the Commission’s recommendations for reform, it is a deep reform course that can be established for years and includes authoritarian, human rights-violating systems (security system, prison system, judiciary.) and systems that are tolerant to financial corruption (Tax and Customs Formalities, licensing system, public transaction system, financial and administrative control structures..). It goes beyond formal and conditional reforms. The most notable experience in this context is South Africa’s experience, in which implementing the Truth and Reconciliation Commission’s recommendations continues to this day, i.e. more than 20 years after the Truth and Reconciliation Commission’s work ended and the delivery of its report.
These institutional reforms, which are derived from the transitional justice’s path and specifically from the Truth and Dignity Commission, would if implemented, be a guarantee against the recurrence of violations, abuses and corruption that the revolution has risen against. These recommendations are supposed to be based on previous reform initiatives (mentioned in paragraph 3) and based on previous recommendations and reports (previous committee reports, independent bodies reports and recommendations, oversight structures reports, reports of international organizations.) and built on a participatory consultative track (consultation of reform structures, consultation of civil society, consultation of victims groups.) It is based on the new facts that were reached during the Commission’s work (investigation, the testimony of victims, the testimony of violators, and access to archives.)In order for these recommendations to be accurate reform process that is thorough and comprehensive in its content, clear in its approach, and effective in describing its implementation.
In a critical reading of the Truth and Dignity Commission’s report that was submitted on 26 March 2019 particularly the recommendations section, followers and defenders of the transitional justice path find that the form and content of recommendations were not as hoped. These recommendations are in brief, inaccurate in describing the necessary steps for their implementation, far in reality from the system that was dismantled, and unstructured, and they were often mentioned in a rhetorical form that is difficult to be developed and translated into a real stage or facilitates describing how it would be implemented, they lacked quantitative and qualitative indicators that may help in monitoring implementation. they also give an impression that has not been come up with something new or unknown, they look as if they were a number of earlier reports and recommendations that have been reformulated from less important structures and organizations and that do not know the real situation from an important body such as the Truth and Dignity Commission.
The recommendations’ lack of real concrete content added more difficulty to the expected difficulty in implementing the recommendations, a historical and a political difficulty for transitional justice. On the first one, experts agree that most of the transitional justice experiences in the world -even the most successful ones- have not succeeded in implementing the recommendations emanating from their reports. Some unofficial statistics state that implementation rates did not exceed 20% for a number of reasons, the most important of which is that the bodies responsible end their reports so that the recommendations find their way to the shelves of an executive authority that does not care about reform, and without the existence of any official structure that will ensure following up the reports and the implementation of these recommendations.
Recommendations for reparations and sometimes memory preservation may be the most likely recommendations to be implemented, as many associations, families and victim groups adopt these recommendations and continue to pressure official actors to implement them. The recommendations on reform and guarantees of non-repetition are defended by only a limited number of human rights associations that defend democratic values.
A number of defenders of transitional justice and experts have bemoaned this reality, which calls into question the usefulness of transitional justice as a whole. This shared reality of transitional justice is added to the Tunisian reality weakened the Truth and Dignity Commission’s credibility during its term of office, which faced a furious opposition to their work especially from official state organs, perhaps more ferocious than in any other experiments.
I is well known that the Truth and Dignity Commission faced opposition from the executive authority and political parties which -with the media’s assistance as well as statements made by members and former workers, statements by close persons to the Commission and reports by monitoring bodies -contributed to developing a hostile public opinion. All these habits and disinformation (none of the three presidencies, Republic, government, parliament, participated in the most important work phases of the Commission from the hearings or the final seminar to submitting the report of the Commission) and hostile public opinion, makes the report and its conclusions unacceptable only because it is issued from a body which failed to gain popular trust. Thus, the executive branch planned carefully for the Commission’s work and its report to be ignored, especially reform recommendations. And perhaps, the fact that the Head of the Commission was admitted reluctantly by the three presidencies away from the supposed official procession on unannounced dates after ignoring the Commission’s demands for weeks may confirm this ignored sham scheme that the executive had begun to implement.
It should also be noted that the Transitional Justice Act, Organic Law No. 53 of 2013, provides in its last chapter no. 70 the following:
“Within a deadline of one year, as from the publishing date of the comprehensive report of the commission, the Government shall draw up a plan and work program in order to fulfill the recommendations and suggestions provided by the commission. The aforesaid plans and programs are submitted to the deliberation of the assembly charged of legislation. The assembly shall supervise the performance of the commission in achieving the working program and plan through a parliamentary committee which shall be established for this purpose and which shall collaborate with the concerned associations to make effective the recommendations and suggestions. The present law shall be published in the Official Gazette of the Republic of Tunisia and implemented as law of the State…”
This chapter was an attempt to ensure that the final report was more noticeable and that it was given due attention and get its recommendations adopted by the executive branch while supervised by the legislative authority by holding them fully responsible for reform after the end of the Commission of Truth and dignity’s term, as one of the two most important authorities in the State (The judiciary is responsible for another part of the transitional justice path, the judicial and transitional justice services.) It should be also noted that during the drafting of the Transitional Justice Law by the Technical Committee for the National Dialogue on Transitional Justice, international experts who support the Tunisian experience noted the importance of implementing the recommendations, especially the ones related to applying reform, and stressed that the law should include procedures for implementing the suggested recommendations. This was stated in the aforementioned chapter of law which can be considered as a real development in transitional justice laws.
Despite these preemptive recommendations, despite foreseeing the danger of ignoring the recommendations, Tunisia is witnessing today uncomfortable signs that indicate that the executive authority ignores the Commission’s report and violates the law by not preparing a plan for the parliament to implement in shadow of the parliament’s current weakness in carrying out its oversight role, and in shadow of the parliament’s renewal elections during the current year 2019 right after holding the legislative elections.
The political parties’ position on transitional justice is also a second indicator of this concern, as positions range from hostility and rejection especially parties related to the former regime, such as Nidaa Tounes, Machrouu Tounes and Tahya Tounes; Political maneuvering and swinging in positions for the Renaissance Party and some left-wing parties; And weak support for some parties that present themselves as the guardians of the revolution, such as the Democratic Alliance. These positions were reflected clearly in drafting the legal text (in the process of consultation between the executive authority and some parliamentary blocs) that would destroy and blow up the transitional justice path by abolishing circuits related to transitional justice and establishing executive committees that would push towards more disregard by the executive authority for the Commission’s report and its reform recommendations.
Despite all this failure in the path of transitional justice, the difficulties in ending the work of the Truth and Dignity Commission and submitting its report, and despite all the negative indications about the executive and legislative authority interaction with the issue, The hope of continuing the transitional justice path, especially the recommendations, remains a strong desire for civil society, which, despite its sharp criticism of the Commission, has remained supportive for the path of transitional justice.
While the three presidencies refused to give due attention to the final report when it was submitted, civil society, international organizations, and partners embraced the report and recognized its importance. Some civil society components have also begun to undertake to follow up on the report’s findings and to develop recommendations-based strategies to induce official actors to implement the Transitional Justice Act. But these initiatives should discuss establishing a new contract with other actors in the field and in the public arena, especially the media that was hostile to the Truth and Dignity Commission, political parties with positions that can be developed toward supporting the subject, and the different components of civil society that will benefit from reforms that will be cut off from previous systems. And with the independent bodies that the report covers some of their work fields.
This new alliance which is on the Commission’s report and recommendations, which the Commission did not succeed in establishing during its years of work- the fact which contributed to increasing its adversaries-, can contribute to establishing a new dynamic path of transitional justice that will continue for years. It can contribute to organizing a general debate building a supportive public opinion, which in turn pressurizes the government and the parliament to apply the law and to embark on a reform course that will lead Tunisia to be among democratic countries that respect human rights and law.
Introduction
The instability that affects societies which are witnessing exceptional political and social circumstances represents one of the most important challenges that threats social security; this state of instability may be due to a political or military conflict which usually produces two main teams that represent the main players and focus of the conflict where each team cling to the legitimacy of their existence and their right to manage of state institutions.
This conflict might end in the victory over one of the parties, where the victorious party extends its power and holds tight to ruling by power, and might continue as a result of equal power and equal national and international political opportunities.
In both cases, transitional justice represents a toll that enables exiting that extraordinary situation resulted by conflicts, and here a question arises about the nature of the transitional justice system that can achieve its objectives in view of the nature and degree of the stage reached by the conflict; and that’s why I am wondering about should the transitional justice system remain the same in both cases where one of the parties to the conflict won and if the conflict continue without a party winning it?
The Libyan situation does not seem far from this perception, both in terms of the type of conflict nor in terms of the need for a system of transitional justice through which the Libyans can cross into a stage of stability.
In order to study the Libyan situation, we need to ask a series of questions that we consider answer them important in order to determine the transitional justice system’s characteristics that suits the situation in Libya
What degree stage the conflict in Libya has reached? And for which stage we need to apply transitional justice? What are the essential elements of the transitional justice system that should be adopted in Libya, according to the justice goals needed to be achieved in the Libyan situation? What are the legislative changes needed for our legal system to achieve the objectives of the proposed transitional justice?
And we answer these questions as follows:
1. The nature and degree of the conflict in Libya is an important element in determining the transitional justice system’s characteristics.
Since February 2011 the conflict in Libya continues to this day, and despite the fact that its degree, type, and parties vary from time to time but the instability still exists through all that as the conflict is not resolved at the political system, and the former regime’s fall only meant that this regime’s stage ended but didn’t mean the end of this regime’s supporters to the new era that emerged after February’s war, and the conflict normally, did not stop at this point as the revolution supporters themselves fell into their own conflicts and they became one of the instability elements in Libya, and perhaps this is the most dangerous conflict of them all as this conflict led to a political split among the newly emerged legislative and executive bodies that exercise their functions and every one of them claim their own legitimacy and charge other parties with committing violations that they should be tried for.
We cannot apply the traditional standards of justice on this volatile situation which Libya is witnessing that the continuing conflict reflects, those standards that are based primarily upon the idea of disclosure showing hidden truths about the past and applying the needed punishment, as for such a justice system must be applied in a society that one of the parties to the conflict have already won, submitted the other weak parties to his will and resolved the conflict in order for it to meet its objectives, as it is usually looked to the losing party as an offending party to this adopted justice system, therefore, applying transitional justice in Libya, with its international standards would only end and failure and deepen the state of division because such a system cannot be acceptable to parties of the conflict as applying a transitional justice system that is based on disclosure, showing hidden truths about the past and establishing the principle of non-impunity require the existence of a capable strong authority and this can only be achieved in the current circumstances through two methods:
A. Either through imposed power from one party to the conflict that would try other parties, and this imposed power or authority would normally be rejected from other parties as it would be a rival to them, not a fair judge, so, the idea of applying transitional justice through imposed power by one of the parties can never represent a real solution to the conflict through which a transitional justice system that is based on accountability and disclosure can be applied, in addition to that, no party to the conflict in Libya would accept disclosing hidden truths about the past supervised by other parties; and all that in fact seems reasonable and realistic and should be taken into consideration when we adopt a transitional justice system in Libya, as the objective from applying a transitional justice system in Libya is to pass from a crisis phase to a strong founded stability phase in which this stability is backed up by the parties conviction of the circumstances given that led to the accepted results, and that shall not be achieved by power as long as all parties are strong and well supported.
B. the second hypothesis that could be presented is to apply the transitional justice system in its traditional concept in Libya with the supervision of a foreign authority that undertakes the mission of revealing the truth of the past and applying punishment. There has already been a trend in Libya to call for the application of transitional justice supervised by a foreign party, whether through the application of the mixed court system or even the international courts, but this is a proposition that we do not doubt its refusal by Libyans due to the privacy of the situation in Libya. This will be a foreign intervention, a return to the era of guardianship and submission that Libyans reject and have reservations on with high sensitivity.
In fact, what we are addressing here is the specificity of the conflict in Libya and its effect on the definition of transitional justice system there, this is not just personal impressions, as the recent experience of applying transitional justice in Libya showed the specificity of the Libyan case, as these experiences represented models of justice that serve the interests of one party at the expense of another.
Transitional justice’s manifestations in the post-February era clearly embodied the unhidden exclusion and persecution of former regime supporters, and using this exclusionary logic, the political isolation law represented a clinical death to all those who worked in Gaddafi’s regime, and the Amnesty law also which was issued by the Transitional National Conference represented an exclusionary model as it excluded Al-Gaddafi’s family from the amnesty regime as Article 1 of the Law No. 35 of 2012 on the Amnesty of certain offenses stipulates that some persons shall be excluded from the application of the amnesty provisions, as this article in paragraph 1 states that: “The provisions of this Law shall not apply to the following cases: 1. Crimes committed by the wives of Mu’ammar Muhammad ‘Abd al-Salam Abu- Minyar Al-Qadhafi, his sons, his daughters whether non-adopted or adopted, and his sons in law and officials.” In return, the amnesty law issued by the Libyan parliament in 2015 includes exceptions to the amnesty system, aiming at excluding some groups that are considered to be the so-called revolutionaries during the February Revolution from the amnesty system. Article 3 of the Amnesty Act No. 6 of 2015 makes the same exclusionary sense, with the decision to exclude certain offenses from the amnesties. Article 4 of the Act stipulates that the amnesty law does not apply to “killings for identity, kidnapping, enforced disappearance and torture”. These are crimes mostly attributed to some of the revolutionaries committed during the February war period, which means that the exception at this stage targets one of the parties to the conflict in Libya, which undermines the most important main pillars of the justice system that must embrace reconciliation in order to achieve community harmony.
It seems clear that these laws have confiscated the objectives of transitional justice, namely, to bridge the gap and settle the differences between the parties. These excluded crimes are the core issues on which we need reconciliation and amnesty that will ensure reparation and ensure non-impunity and criminal accountability, in a manner appropriate to the current stage the Libyan State is witnessing.
The exclusion stated in these laws, is in the context of a exclusionary policy that has stripped the concept of transitional justice of its lofty goals and turned into a mere revengeful or selective justice, that did not aim to achieve a real reconciliation project, but has increased the political division and weakened the effectiveness of the adopted justice system. This is, in fact, due – as we understand it – to the fact that these laws were formulated with a specific philosophy based on the idea of impunity and depriving adversaries of benefiting from the advantages provided in the post-conflict phase, and in return establishing legal guarantees that shall ensure the impunity of a certain segment, which is those that match the conviction of the legislator.
Although Libya has enacted laws that express a tendency toward achieving transitional justice, such as Act No. 29 of 2013, these laws have not achieved their objectives, since they did not take into account the nature of the conflict in Libya and the current centers of its components. We cannot fail to point out that each of the parties to the conflict in Libya is a popular base that deserves to be considered for any project of transitional justice. Transitional justice is not a purely legal act aimed at punishment and justice in its abstract sense, it is a system of community harmony, and it is, therefore, a popular system according to the nature of its objectives and means of achieving it.
The exclusionary policy of transitional justice in the Libyan experience through applying amnesty laws did not provide a realistic alternative through which justice can be achieved for cases excluded from the Transitional Justice laws’ scope of jurisdiction, the fact that led to delaying the solution, prolonging the problem and opened the way for the crisis development; as punishment for killings, arbitrary displacement, and arbitrary detentions were excluded from amnesty under Act No. 6 of 2015, and even applying this requires a strong state that has power and can practice it throughout the country, which can be achieved only by transcending the circumstances of the stage, through a restorative project that will bring justice and restore security and peace.
Thus, although the exceptions contained in the aforementioned laws aimed to subject cases and defendants exempted from amnesty to a penitentiary system, they had the opposite effect that ended in impunity for defendants, where they benefited from that and strengthened their status and increased their hostility to the conflict group who were holding the legislative and law-making power. This exception reinforced the feeling of hostility and exclusion for those who were excluded, which contradicts with mere logic that should prevail for the sake of peace and community security.
All these negative consequences of Libya’s transitional justice system are due to the protracted long conflict in Libya and the failure to choose a system that suits the nature of this conflict. The transitional justice system that must be adopted in Libya should take into account that justice that should be achieved must include all pre -17th February revolution stages, as it is the period that witnessed a severe political and social division within the Libyan community fabric. Discrimination in treating those stages will promote division, injustice and inequality.
The most important elements of transitional justice in Libya:
The nature of the political and social conflict in Libya makes it imperative to adopt a special system of transitional justice that is based on the idea of reconciliation and bypassing the past as a basis for a justice system. This can be achieved only through adopting an integrated political, economic and legal system that promotes community harmony and establishes the spirit of citizenship, through ending the hotbeds of tension first by adopting a fair system of wealth distribution and a positive political quota through an equal opportunity system that distributes political jobs geographically on the basis of efficiency, as this will achieve overcoming one of the most important factors of the current division among Libyans. This will ensure ending one of the main reasons for prolonging the crisis in Libya which is the feeling of economic and political injustice.
Legally, adopting a “popular legal system” in which individuals play a major role in resolving and settling the conflict will be one of the most important solutions for achieving effective national reconciliation among Libyans. This is one of the most important steps toward a fair settlement that is acceptable to the perpetrator, who is often difficult to submit to a traditional judicial system because of his influence, and at the same time, this shall establish an effective system, as it will represent an acceptable solution for the victim, whose position is usually expressed through a popular base to which he/she belongs.
The traditional punitive system will, therefore, remain a reserve system that can be achieved only when restorative settlement fails, and therefore we will have a system defined as follows:
A restorative settlement system that ensures combating impunity, and not applying punishment. As restorative punishment is not necessarily a traditional punishment, as it may be applied through compensation, not traditional punishments, this is known as “Penal Compensation” in criminal jurisprudence, and the punishment, in this case, may just be an apology for the victim by the conditions the victim set for the purpose, or it may be amnesty in exchange for pleading guilty, provided that this is done in a consensual way between the offender and the victim. A restorative settlement would, therefore, include compensation, apology or pardon with the consent of the victim.
In order to implement a fair and restorative system, the experiences of some States, such as France, which adopt systems of reconciliation and mediation, but these systems shall be modified to suit the Libyan situation, whether in terms of the nature of crimes or social composition.
A traditional punishment system is applied to a small scale to a range of serious crimes that have not been resolved by restorative means.
Conclusion
Adopting restorative justice as a concept of transitional justice requires:
Going beyond the idea of revealing facts far from the reconciliation’s scope, it is not feasible for a society seeking community peace to detect crimes and violations and to dispense the past and bring it back to the present, as it is similar to those who import past problems to add to present crises, which is clearly contrary to the objectives of transitional justice as we understand it. It aims at healing the rift and restoring community harmony. The revelation of the past is only a condition of transitional justice to the extent that victims demand it within the framework of a system of reconciliation.
The need to amend the Code of Criminal Procedure by adopting a system that allows the termination of criminal litigation by restorative means, through the adoption of exceptions to the principle of judicial punishment, as well as explicitly providing alternatives to criminal proceedings, including mediation and conciliation.
Avoiding the State’s absolute amnesty regime away from the principle of reconciliation, as it provokes the victim’s feelings and promotes a sense of inequity, amnesty must be a result of the victim’s consent
