The Brookings Doha Center (BDC) hosted a panel discussion on October 4, 2017, which discussed the possibilities and challenges of pursuing transitional justice in the Arab world. The panel included Noha Aboueldahab, visiting fellow at the Brookings Doha Center; Frej Fenniche, former director of the U.N. Office of the High Commissioner for Human Rights’ Asia, Pacific, Middle East, and North Africa Branch; Abdulsalam Mohammed, chairman of the Abaad Studies and Research Center; and Marieke Wierda, a former transitional justice advisor to the U.N. Support Mission in Libya. Folly Bah Thibault, a principal presenter with Al Jazeera English, moderated the event, which was attended by members of Doha’s diplomatic, academic, and media communities.
Thibault introduced the panelists and the discussion, describing the momentous events of the 2011 Arab Spring and the current situations in Tunisia, Egypt, Yemen, and Libya. She posed the question of how applicable transitional justice really is in post-Arab Spring contexts, specifically in the absence of democratic institutions, before inviting Fenniche to explain why Tunisia is seen as a model.
Fenniche began by calling Tunisia’s experiment with transitional justice something of a success. He said that initially, the transitional government elected in 2011, under pressure from the street, hastily enacted measures such as compensation for those wounded during the revolution and amnesty for political prisoners. There was political will among the parties, which formed committees tasked with protecting the aims of the revolution. The involvement of prominent human rights activists lent credibility to the committees.
More importantly, Fenniche continued, civil society organizations played a fundamental role, pushing for independent mechanisms to investigate crimes, hold perpetrators accountable, end the culture of impunity, and compensate victims. This led to the formation of a Truth and Dignity Commission and a law on transitional justice, alongside Tunisia’s new constitution. Fenniche asserted that the Commission’s success resulted from parliament giving it strong powers, including immunity and the power to punish those who withheld information.
Fenniche then noted some peculiarities of Tunisia’s experience. The Commission dealt with major crimes like torture and rape, but due to its politicization, it also declared that all of Tunisia’s post-independence elections were rigged, and dealt with corruption, a rare role for such a commission. Closing with obstacles, Fenniche argued that four years was not enough time for the Commission to complete its work, and that it was losing popular and governmental support.
Aboueldahab spoke next, rejecting the widely held notion that “you can’t have transitional justice without a transition.” Pointing to the prosecutions of both of Egypt’s recent former presidents, Mubarak and Morsi, she argued that “transitional justice can be, and indeed has been, pursued in non-democratic transitions,” sometimes to entrench authoritarian rule, and sometimes to resist the resurgence of authoritarianism.
In Egypt, Aboueldahab explained, there has been a reckoning with the transition itself, as opposed to the decades of violations that preceded the uprising. This focus protected former regime elements in three ways. First, it allowed interim authorities to avoid being held accountable for their roles in pre-transition crimes. Second, highly symbolic prosecutions of top officials functioned to “sacrifice a part of the regime to save the regime.” Third, portraying the 18 days of revolution as an exceptional period implied that the violations of the previous years did not exist.
More broadly, Aboueldahab observed that unlike in other transitional contexts, most of the Arab world did not have any democratic or transparent institutions. Therefore, these countries have the major challenge of attempting to use deep state institutions to account for past crimes, and managing the justice expectations of victims accordingly.
On a more positive note, Aboueldahab highlighted the heroic efforts made by individuals and organizations in Syria to document the human rights violations occurring there since 2011. Beyond providing a historical record, this is “golden material” for future and ongoing prosecutions. In closing, Aboueldahab urged patience with the transitional justice process, noting that Argentina and Brazil are still grappling with crimes from 30 years ago. She concluded that it is better to wait than to rush forward in an unjust system.
Mohammed then addressed Yemen, asserting that transitional justice cannot be achieved while it lacks a proper state. He explained that the peaceful protests of 2011 gave way to a conflict between the state and society, and that when Yemenis accepted the Gulf Cooperation Council initiative for a peaceful transition of power, it circumvented transitional justice. Former President Ali Abdullah Saleh and all that worked for him receiving immunity was a “double-edged sword,” and encouraged the state “to go on shedding blood.” The end result was the state collapsing, militias taking power, and war breaking out.
Any talk of transitional justice, Mohammed argued, is a luxury Yemenis cannot afford at the moment. All effort should be put toward ending the war, and then a state must be installed. Mohammed also noted that Yemen’s politicians had failed both to turn the tribal system into an organized, civil system, and to build a state strong enough to function in the absence of the tribal system. He contended that once the international community helped bring about peace and the restoration of the state, Yemen’s tribes and norms could help with reconciliation and transitional justice, or international law could be applied.
The discussion then turned to Libya, with Wierda recalling the initial optimism stemming from comprehensive regime change. Libya went through a lot of the motions of transitional justice, including prosecuting officials, compensating political prisoners, establishing a ministry for missing persons, and enacting institutional reforms. Wierda maintained, however, that because transitional justice is more about the “how” than the “what,” these efforts failed to renew the social contract between citizen and state, and Libyans’ trust in public institutions.
Wierda explained that after 42 years of Gadhafi dismantling institutions and subsuming the state, citizens who had suffered could not trust it, and therefore sided more with local groups and identities instead of with a Libyan one. This allowed militias to thrive. Wierda admitted that she and the United Nations had miscalculated in assuming that the militias would eventually submit to the state, which did not happen.
Wierda also argued that “Libya suffered from a revolutionary euphoria.” This enabled a climate of revenge, manifested by mass detentions and the political isolation law. Militias became increasingly powerful as they exercised vengeance, people were left unprotected, and local actors could not patch things together. Wierda criticized the United Nations and
International Criminal Court for aligning with the euphoria and failing to emphasize even-handed justice.
Looking forward, Wierda said Libya needs to go back to the notion of a social contract, and a political formula that works for its society. She called for a roadmap to national reconciliation that includes an increased focus on victims, amnesty for thousands of prisoners, accountability for crimes, and a national narrative that confronts Gadhafi’s legacy, but also relegates it to history.