Abdelsalam: Transitional Justice is a Tool for Compromise not Political Conflicts

2019-06-04    |   

Abdelsalam: Transitional Justice is a Tool for Compromise not Political Conflicts

Editor’s note: The Tunisian Law on Transitional Justice mandated the establishment of a Truth and Dignity Commission (TDC). This institution was to play the driving role in furthering the course of transitional justice. The law also determined that the TDC’s working period would be four years, starting from the date its members were named (which took place in May 2014) and with the possibility of a one-year extension. In light of its serious differences with the Tunisian government, the TDC decided to extend its mandate through the end of 2018. That year hundreds of judicial cases were transferred to designated authorities for the purpose of transitional justice in accordance with the same law. These authorities were directed to consider these cases according to customary criminal justice principles.

Given the importance of the Tunisian experience, The Legal Agenda wished to assess the TDC’s work by conducting a series of interviews on the subject, including the one published here. Below is an interview with Karim Abdelsalam, the president of Tunisia’s Dignity and Rehabilitation Coalition.

The Legal Agenda: It is said that you were among the first to promote transitional justice as a key part of a democratic transition. Where do you stand today on transitional justice?

Abdelsalam: After giving it much thought and my relatively long experience [in this field], I have come to believe that justice is an absolute value that cannot be subject to additions or limitations. Any restriction infringes on justice as a right, and any addition to justice serves to restrict it. After consideration, I find it difficult to view the qualifying of justice as “transitional” as something that is done with the aim of achieving justice. Consequently I do not consider transitional justice to be justice; rather I consider it to be fundamentally a project of compromise between ruling forces that are ascendant and others that are waning.

The way the institution [of transitional justice] imagines itself in technical and conceptual terms and the absolute value of justice are mutually incompatible. Realizing this leads one to reject all of the claims that are made alleging that this kind of justice is equitable and sound, with norms that are well-defined and agreed upon. Possibly in its origins and in terms of the need for it, [transitional justice] was a political issue, an administrative tool, or a means to place a ceiling on entitlements – whether that be the truth, accountability, or a particular relationship with history.

The request I would raise here is not to call for abandoning this path, but rather to caution of the necessity of considering the relative merits of ideas and positions. It is also a call for a pragmatic suggestion to pursue what some see as absolute values, which cannot be relinquished, of transitional justice. If we consider the numerous experiences with this type of justice that societies have gone through over the past two decades, two things become clear: the importance of assessing the relative merits of ideas, and the importance of awareness, rather than justice in its most basic sense, as the true goal of transitional justice.

I firmly believe that original impetus for the notion of transitional justice was as a tool for codifying change, regulating it, controlling the pace of its flow, and limiting its truths. As such, transitional justice is a political process with legal mechanisms. So it is not possible to discuss it in terms of either exemplary success or total failure. Transitional justice is a justice of compromise, and we must understand it as such. We also need to be aware of this in any discussion that aims to be objective when it comes to these various experiences, including the Tunisian experience.

The Legal Agenda: Are the theoretical vision and the legislative framework for transitional justice in Tunisia consistent with the vision you propose?

Abdelsalam: I believe that with the Tunisian vision we attempted to establish a new phase of transitional justice. And I think that we achieved success in theoretical and legislative terms, on more than one level. Most importantly:

Compared to the 49 previous experiences in this field, Tunisia’s law on transitional justice was the only one to enshrine, on an equal basis, all of what are referred to as the principles of this kind of justice: uncovering the truth, accountability, reparations, rehabilitation, and preventing repetition.

In order to identify which parties were victims, a precise legal definition of a victim was given. This definition encompasses not only the direct victims – that is, those to whom the violation was perpetrated – but also the indirect victims such as those in their family environment.

Even with this success, and here I am speaking always in theoretical terms, we also put a number of pitfalls in place on the level of the legal text itself. It should have been clear to those following the situation that from the beginning these pitfalls would impede efforts to carry out the stated principles. The most significant of these pitfalls were:

The unjustified extension of the period of the past that was investigated in the search for violations and the truth. In an effort that was supposed to be focused on searching for violations perpetrated by the state against its citizens, the Tunisian legislature decided to go back to before the state was established, that is, to the colonial period. This choice points to what amounts to a political instrumentalization of the process, carried out by political entities looking to settle [political] scores with symbols of the [Bourguiba] era of independence. Considering this question likewise points to the impossibility of arriving at an objective answer.

Expanding the scope of what is considered “criminal” by mandating judicial accountability for gross human rights violations. This has led to specifying certain acts as criminal even where local Tunisian law does not criminalize those acts – for example, forcing a person into exile and election fraud. Requiring a local judge to issue a criminal ruling on such cases obliterates the values of criminal justice and bogs down the courts in considering cases that are not criminal. Improvised political positions as well as a lack of awareness about the relative nature of this kind of justice played a role in this approach.

From the start, we have pushed transitional justice towards political conflict, when it is in fact a tool for resolving it. As a result, we produced outcomes that we had not anticipated.

The Legal Agenda: Taking the components of transitional justice one by one, how do you assess what was done in terms of uncovering the truth?

Abdelsalam: In order to discuss evaluating the process of uncovering the truth we must first ask about truth itself – that is, what was the truth that was being sought? In my opinion truth takes two fundamental forms, each with its own mechanisms:

Historical truth: the goal of uncovering this truth is to present a new reading of history that goes beyond a single narrative voice and invokes viewpoints that are absent. Here, the truth must be a scholarly truth: that is, not simply the result of a new narrative that is also one-dimensional.

Truth about violations: this is the truth of criminal justice and must adhere to the norms and impartiality of criminal evidence.

There was hope that we could successfully arrive at both truths in ways that satisfied the conditions of each – had we committed from the beginning, as I said before, to not burying the process of transitional justice in an extended timeframe. If we had limited ourselves to the period of Ben Ali’s rule and the violations that took place then, and the historical movement connected to it, then our efforts would have been more favorable and the possibility of success would have been more likely. But we went in the direction of an unjustified extension of the scope of truth-seeking, and sentenced ourselves from the beginning to a journey of discovery that was superficial.

This superficiality manifested in the outcomes of the investigations in the following ways:

On the level of historical truth, we simply reproduced a new narrative, this time created by the victims. The work of the institutions of transitional justice did not include any kind of filtering or weighing the relative aspects of the overall narrative. And more importantly and critically, the narrative did not conform to the historical contexts of the concepts and values and became a trial of history – projecting perceptions from the present in an inaccurate way.

On the level of the truth about violations: in this context, we did not succeed in transcending the initial sphere of the phenomenon, that is to say, the torturer himself, to reach a broader conceptualization. This means we did not succeed in dismantling the system and in reaching all of its actors, especially those who are hidden. This does not bode well for preventing the repetition of these violations.

The Legal Agenda: What is your assessment when it comes to the trajectory of reparations?

Abdelsalam: Unfortunately, those who were carrying out transitional justice in Tunisia used the issue of reparations as enticement to attract victims and sustain their dependency. There was a promise of remuneration presented to an audience of victims, with the goal of exploiting their marginal economic status and their legitimate need for redress. This was done to provide cover for [the TDC’s] failures; the victims put a positive, human face on the TDC’s antagonistic choices.

Today the outcomes of the work of the TDC make clear that although reparations were a goal of transitional justice, in this case they are a major deviation from the absolute values of justice. Rather than being considered as a goal of justice, reparations here must be viewed as a tool of social change that aims to eliminate feelings of injury and injustice, which are one of the sources of social tension. In any case they are a necessary tool for forestalling conflict, but they are not a goal in and of themselves.

On a second and no less important level, we can observe from the work of the TDC that it adopted a quantitative approach to identifying victims, as mentioned previously, for political ends. The most significant sign of this was its inflation of the number of victims in order to seek a wider base of support. This approach might serve the TDC in its own side battles. But it has poisoned the path of transitional justice by transforming reparations into what is essentially an opportunity for gain for victims that are not legitimate. This will prevent reparations from actually being made.

It is acknowledged that stages of political transition are also stages of economic difficulties. This can be readily observed today by anyone following the Tunisian situation. It was therefore expected that some awareness of this fact would be exercised in dealing with reparations benefits – in order to ensure the provision of true opportunities for implementing decisions about reparations.

When it comes to violations that took place a long time ago, and where wounds had healed with time, it was often possible to adopt a symbolic standard of “reparations” through a greater focus on rehabilitation and recognition. Care had to be taken to ensure that financial compensation only applied to those groups whose livelihoods were still suffering due to the effects of the violations they had faced. I think that the TDC dealt with this issue in a way contrary to the aims of the matter, and this was one of its most notable failures. This will be affirmed in the days to come.

The Legal Agenda: And what about the issue of accountability?

In the Tunisian experience, we chose the local judiciary as the arena for judicial accountability for those accused of gross human rights violations. Fundamentally this requires us to examine the extent to which this judiciary respects the principles of a fair trial in its work on these cases. If there is respect for these principles, that means that we are establishing a true democratic transition. But if these norms are not observed, it means that we have deviated from this goal. In this light, we observed a number of significant violations:

We asked relevant judges to issue criminal rulings for incidents that are not considered criminal according to Tunisian law nor according to international laws in force within Tunisian territory or outside of it. Here I am referring to the crimes of enforced disappearance, election fraud, and forcing a person into exile. How can we ask judges to assume the position of lawmakers and rule in accordance with their inclinations, which violates the principles of a fair trial?

We granted the TDCthe authority to conduct judicial investigations but without subjecting it to any form of judicial oversight or obligations to respect the procedures of legal proceedings. In many cases this led in practical terms to tampering with investigations. Each day more episodes of this phenomenon come to light.

We violated the principle of litigation on two levels, which is a fundamental and essential principle of a fair trial. As is clear from what has been stated previously, in carrying out their legal vision the judicial bodies specified to carry out transitional justice did not respect the principle of a fair trial. This renders them exceptional tribunals that have carried out vigilante actions under cover of law. Compounding this crisis of legal foundations are the practices of the TDC, which stripped the legal proceedings of all transparency. One of these practices was the referral of cases to trial without investigations.

I firmly believe that the judicial authorities designated as courts have again thrown the judiciary into a political role. This must be condemned by everyone, starting with those who struggled for a democratic society and rejected authoritarianism. Judges must also be alert to this and resist it, and they must rise above the intimidation they have faced on the matter in order to affirm to everyone that they are independent judges. This is the only way to fulfill the aspirations of the activists – or, as they are now referred to customarily within transitional justice – the victims.

Keywords: Tunisia, Transitional Justice, Truth and Dignity Commission, Karim Abdelsalam

This interview is an edited translation from Arabic.

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