Innovation in transitional justice: Experiences from the Arab region

 It has been a decade since several Arab states were confronted with mass anti-government uprisings calling for justice, freedom, and the fall of oppressive regimes. The region has since undergone transitions marked by renewed authoritarianism, armed conflict, constitutional reform, leadership changes, more uprisings, and shifts in geopolitical alliances. Throughout, the pursuit of justice in all its forms has remained prevalent, even as governments continue to crack down violently on those seeking accountability. Given the extraordinary political context within which these justice-seeking efforts have unfolded, the experiences of the Arab region have contributed a wealth of material for the research, policy, and practice of transitional justice.

In March 2020, the Brookings Doha Center convened a two-day workshop to delve into experiences from the Arab region that have generated innovation in transitional justice praxis. Thirty lawyers, practitioners, civil society professionals, artists, and academics exchanged experiences that were at once difficult and hopeful. Many of the workshop participants are also survivors of horrific human rights abuses in their home countries and have continued their justice-seeking efforts from abroad. They discussed questions concerning the expansion of the parameters of “traditional” transitional justice: How to pursue what has predominantly been a state-led process when the state continues to be the perpetrator? How to conceptualize “transition” when it does not neatly fit within the liberal paradigm of democratic transitions?

Indeed, transitional justice in the Arab region has often taken the form of competing battles for (in)justice, whereby political regimes use the tools of transitional justice to reckon with the temporary period of the mass uprisings, rather than with a much longer history of atrocities. As Frank Haldemann notes, we must loosen the “very conceptual straight-jacket that has for too long stifled serious thinking about the real politics of transitional justice” by asking the difficult questions regarding the “role of power and untidy political transactions in shaping transitions.” The workshop discussions did just that, while also highlighting existing innovations in the pursuit of accountability and other transitional justice-related objectives, particularly within the ongoing conflict and authoritarian contexts in the Arab region.

While its definition continues to be debated, transitional justice is essentially the practice of addressing a painful past in order to better address the present and the future. Workshop participants from Algeria, Egypt, Lebanon, Libya, Tunisia, Yemen, South Africa, Sudan, and Syria exchanged insights about their work concerning collective memory and collective amnesia; the role of art, truth commissions, and documentation in advancing social justice; and the pursuit of criminal accountability through universal jurisdiction. Academics from the global north engaged in the workshop through frank discussions and working groups that addressed the increasingly fluid sites of “experience” in the global south and of “expertise” in the global north. Simple and powerful questions were posed: Why don’t we interview the perpetrators? Is it realistic to pursue transitional justice without the state? What use is the term “transition” in transitional justice, especially as political upheaval continues to mark several parts of the Arab region?

New ways of thinking about the pursuit of transitional justice require an expansion of the term’s parameters—academically, in practice, and in policy. While recent experiences across the Arab region do not all conform to the paradigmatic transition from violent, authoritarian rule to liberal, democratic rule, they still constitute an exceptional, extraordinary moment. As Cheng-Yi Huang points out, “It is impossible to pretend nothing happened.” Pushing the boundaries of what has predominantly been understood as a “transition” is also important in the context of the United States, for instance, which has seen a resurgence of calls for transitional justice to reckon with the country’s history of racism, inequality, and social injustice. Little discussed, however, is how so-called established democracies can learn from the experiences of countries such as Tunisia and South Africa, no matter how fraught those experiences were. This is part of a broader problem where knowledge production in the field of transitional justice is far from representative. It excludes, for example, the intellectual and practical insights of Arab scholars, activists, and policy specialists whose experiences are grounded in the complexities of the politics of the region. It is important to change this.

This series, Innovation in transitional justice: Experiences from the Arab region, is an effort to complicate the distinction between “sites of expertise” in the global north and “sites of experience” in a part of the global south—the Arab region. Put simply, the global south is not just a site of experience, but is also one of expertise, as the authors of this series powerfully demonstrate.  The series also presents the pressing questions we need to ask to better address political transitions in the Arab region by showcasing the experiences of those directly involved in such processes, but whose voices are often excluded from mainstream policy and scholarship circles: How can transitional justice expertise in the Arab region play a more prominent role in shaping transitional justice policies and scholarship? What is the impact of transitional justice policies on the everyday lives of people in the affected societies? What is the role of transitional justice actors in the Arab diaspora in the pursuit of justice and accountability? What is the trajectory of the pursuit of universal jurisdiction cases in Europe to hold alleged perpetrators in several Arab countries accountable? What is the impact of collective amnesia and selective reckoning with the past on peacebuilding and reconciliation? What possibilities for transnational solidarity exist within and beyond the Arab region for the pursuit of transitional justice? And how do these issues impact transitional justice policy formulation?

The first part of the series outlines some of the achievements of diaspora communities in pursuing criminal accountability and raising awareness about the plight of the disappeared in Syria, as well as in the long-term effort to lay the foundation for transitional justice in Egypt. Ahmed Mefreh explains that the Egyptian diasporic community is increasingly seeking accountability from abroad for crimes committed in Egypt, especially given the shrinking civic space inside the country. This is predominantly done through documentation of violations and crimes—information that, he says, “could one day serve as the foundation for a movement toward accountability in Egypt.” Anwar El Bunni emphasizes that the prosecutions targeting the Syrian regime in Germany and other European countries “would not have been possible had it not been for the Syrian diaspora and its efforts.” He adds that, while states previously determined the “paths, outcomes, and bounds of transitional justice,” the achievements of the Syrian diaspora and their allies in Syria “surpassed any state limits or restrictions,” made possible through the use of universal jurisdiction. Fadel Abdul Ghany outlines the role that art has played in truth-seeking and memorialization for Syria’s victims who have been forcibly disappeared. He observes the role of art as “reinforcer of other justice mechanisms,” rather than as a decisive factor in the pursuit of transitional justice in Syria.

In the second part of the series, the Tunisian, Sudanese, and Algerian experiences showcase the diversity of transitions, as well as similarities in the strategies undertaken to draw attention to victimized regions and not just individuals. Messaoud Romdhani discusses the innovative Kasserine file in Tunisia’s Truth and Dignity Commission, which demonstrates the importance of transitional justice as a venue for “class action” rather than solely as a mechanism that addresses the grievances of individuals. He argues that the overall concept of justice “must go beyond the concept of victims as individuals in order to address the plight of an entire national group that has suffered from social injustice for decades.” Albaqir Mukhtar makes similar observations in the context of Sudan: “Not only should justice tools take into account the scope and impact of the crimes committed against individuals in a particular region, but they should also address the victimization of entire communities.” Ismael Gherzoul discusses the difficult pursuit of transitional justice for the forcibly disappeared in Algeria, where a political transition continues to be in flux. He argues that despite the absence of a transition conducive to justice-seeking efforts, “Algerian civil society, lawyers, victims and their families are all well-versed in the value of truth-seeking, with or without the state.”

The third and final part of the series presents reflections from the transitional justice policy and research worlds. Sufiya Bray speaks from the position of someone who was heavily involved in the African Union Transitional Justice Policy (AUTJP) process. She emphasizes that a policy process can open up opportunities to establish a foundation for transitional justice, regardless of whether conflicts have ended or not. While there may not be a “right time” to start policy development, she says, there is never a wrong time. Catherine Turner engages in a frank reflection about her position in the workshop. She explains: “I found myself reflecting on why I was there—confronted more starkly than ever before by my position within this problematic hierarchy between the ‘researcher’ in the Global North and the ‘researched’ in the global South. It was an uncomfortable place to be.” She also underscores the “real physical risk” that transitional justice advocacy in the Arab region carries with it, and that “for those of us who take physical security for granted, this is an aspect of transitional justice advocacy which we must pay attention to and learn about.” Finally, Nadim Houry raises several questions about the scope of transitional justice in the context of the Arab region and calls for a new research agenda that integrates past, as well as ongoing, atrocities. He suggests that transitional justice practitioners may need to engage more with initiatives led by “new diasporas and non-state entities,” while ensuring a “critical examination of existing approaches to transitional justice” in the Arab region.

The authors of this series come from diverse professional and national backgrounds. While transitional justice practitioners value the role of research in informing policy, the actual experiences of practitioners, activists, survivors, lawyers, and artists on the ground rarely figure into such policymaking processes. It is those experiences that raise the difficult questions that must be addressed, while also providing insight into innovative strategies to pursue justice, accountability, reconciliation, and truth-seeking in volatile contexts. This series will be of particular interest to those who value the role of such experiences rooted in the painful past, the precarious present, and the uncertain future for states across the Arab region.

* I would like to thank the peer reviewers, the communications team, and Jihane Benamar, Emma Katherine Smith, Dialla Jandali, and Theodosia Rossi at the Brookings Doha Center for their excellent editing of the articles in this series. I am also deeply thankful for the practitioners, lawyers, civil society activists, artists, survivors, policy specialists, and academics who participated in the workshop and who have made generous and valuable contributions to this series.