Following the Jasmine Revolution, the concept of transitional justice rose to prominence in Tunisia, which led to the establishment of the Truth and Dignity Commission (TDC) and the concept’s enshrinement in the new Constitution (2014). However, “memory” as a philosophical and sociological concept and the problematics surrounding it remained marginal. Why do we remember? In order to mete out justice for the victims or hold those who escaped punishment accountable? To strengthen public awareness of the horror of human rights violations? Or to instill an inclusive national memory that will prevent the crimes of the past from being repeated and become the foundation of a more equitable future? In other words, what memory do we hope the TDC’s work will instill in the Tunisian conscience?
This question has become more pressing now that the transitional justice process has become confined to the specialized chambers established to examine the cases the TDC refers to them. Thus the trials became the effort through which Tunisians’ memory of their pre-2011 past is expected to take shape. For each one of us, memory is a large cave wherein the events and our guided or naturally limited understanding of them accumulate. We each then, as a result of our experiences, knowledge, sensibility, or subconscious interactions, give prominence to some of these events while suppressing others. Hence, the “process of remembering” constitutes a revisitation of these caves engraved within each of our consciences, whereby some of the facts amassed (be they prominent or suppressed) return to the fore to be reinvestigated and rethought before being put forward in their new guise. As such, the remembrance process appears to not necessarily be the restoration of a lost or suppressed memory but, first and foremost, the provocation of an interactive disturbance of conscience concerning it as a prelude to reshaping events already stuck in Tunisians’ minds to one degree or another and rearranging them with respect to their presence. Perhaps the most important aspect of the remembrance process is that the cases lose their purely personal character as we develop an understanding of the background of human and social factors and their dimensions, both those concerning the victims’ pain and suffering, and those concerning the greed of the perpetrators (or torturers) and their tyranny.
Remembering applies not only to the generations that lived the events but also to subsequent generations, who consequently form perceptions of Tunisia’s past. Naturally, this remembrance process is based on certain choices as no society can conduct a comprehensive review of all the accumulated events in its past. This is clearly evident in the TDC’s work. Although the number of complaints reached 62,713 and the secret hearings addressed 49,654 complainant victims, the public hearings were restricted to a small number of them. Hence, the cases referred to the specialized chambers by the end of July 2018 numbered just 19 (the number subsequently rose slightly). In most cases, the TDC merely interviewed the victims. Research and investigation, on the other hand, was restricted to a very small number.
What cases did the TDC decide to refer to the specialized chambers? With the restriction of the remembrance process to the cases brought before the specialized chambers, this question connects to other, no less important questions concerning the goal of remembrance and the criteria the TDC employed when selecting these cases in order to achieve it. What is that goal? What are these criteria, and how suitable are they for achieving this goal? A review of the TDC’s stated and unstated criteria and the nature of the cases referred indicates that the criteria were not rights-based (e.g. the concept of the gravest crimes); rather, they were based primarily on certain balances between the different affiliations, geographical regions, historical periods, and violations. Although the nature of the cases referred reveals a breach of these balances, the TDC appeared to base its choices primarily on modeling and representivity – i.e. the construction of a representative sample of cases in accordance with the rates at which they occurred. This modeling was accompanied by the prioritization of cases containing evidence, which reduces the chance that the investigation into them would lead to a dead end or disappointment.
While the modeling can be justified by a desire to involve the largest number of regions and [political] currents in this action, the danger of employing it lies in locking the victims into their party-based or regional identities, which prevents the emergence of an identity for the victim in and of themselves. Subsequently, the case of a victim belonging to a certain faction becomes a means of doing justice for that faction (and perhaps strengthening its legitimacy). This could contribute more to the reproduction of a factional, multifarious identity than to strengthening awareness of the inclusive humanitarian and national considerations related to these violations and, ultimately, an inclusive national memory. Such an approach could lead to several problems, the most significant being:
That victims whose cases did not go to trial feel that they have been discriminated against and, subsequently, that the transitional justice process has turned into a new opportunity to violate their rights. Modeling (building a representative sample) may be beneficial pedagogically or scientifically, but it could clash with the foundations of rights work, where any difference in status should be justified with public interest considerations, rather than cases of discrimination based on people’s inherent characteristics. This is not mitigated by the TDC’s claim that it excluded cases that do not contain enough evidence: besides the fact that in any serious remembrance process, the victim obviously should not be charged with any burden to provide proof, there are pressing questions concerning the seriousness of the means of inquiry that the TDC provided in investigating the cases submitted to it. Does the lack of any evidence not, in many cases, constitute additional evidence of the extent to which the violation of the victim’s right was erased and, subsequently, its gravity? The best evidence of this is that associations representing the victims of the authoritarian era participated in the organization of the “What Happened with my Case?” campaign, which aimed to shed light on the shortcoming in the TDC’s handling of victims’ cases.
That there is a greater risk that the remembrance process will eventually turn into a factional act. This could occur if the work of the TDC or the specialized chambers leads, intentionally or unintentionally and due to factors internal or external to them, to the accentuation of the victim’s factional identity at the expense of their identity as a victim. In this case, modeling could ultimately divide and fragment the remembrance process such that each faction becomes interested exclusively in the cases pertaining to it and in the suffering of its adherents. Some political factions may also resort to turning their victims into martyrs that they promote within their political projects. These concerns are exacerbated by the fact that, as of the end of July, approximately two thirds of the cases referred pertain to Islamists. It is feared that this will lead to a general feeling that the process of remembrance and transitional justice has become primarily an opportunity to raise Islamists’ profile and enhance their legitimacy.
That, perhaps most gravely, the way is paved for a rights discourse conducted by lawyers before the transitional justice chambers about the selectivity of their clients’ prosecution. Why these cases in particular? Is it right to reduce accountability for the regime’s crimes to the prosecution of a small number of them? Does that not encroach on the principle of equality before the law and justice? Of course, this argument could carry extraordinary political power if certain lawyers succeed in painting the selectivity as a bias toward one faction against another (e.g. they argue that there is a bias towards Islamists and against modernists in the selection of cases). This possibility is strengthened by the fact that most of the cases pertained to crimes for which trials were previously conducted and the TDC did not present any new evidence concerning them, instead merely disputing the sentence’s proportionality to the gravity of the crime. In other words, the TDC put aside people who entirely escaped punishment, arguing that there is insufficient evidence, while it insisted on retrying those convicted to increase their sentences.
Of course, we in no way mean that the remembrance process must be comprehensive, for it is impossible to recall all the violations that occurred over decades. Nor do we mean that transitional justice can always overcome the threat of transforming into a factional action, especially given the severity of social divisions. However, what we do mean is that increasing the chances of the remembrance process’ success requires taking the most prudent measures to justify the means whereby the cases were selected and dispel any serious suspicion that they were based on factional or political considerations. The primary measure in this regard may be to adopt clear, rights-based criteria based on the gravity of the violation and criminal liability, with the gravity increasing in proportion to the importance of the values violated. This we see, for example, in the Rome Statute of the International Criminal Court, whose jurisdiction exclusively encompasses the gravest crimes (war crimes and crimes against humanity) on the basis that international courts, because of their expense, can only address the few crimes considered most grave from an international perspective. The same is also evident in the jurisdictions of a number of special international courts, such as those pertaining to Cambodia and the former Yugoslavia.
It was hoped that the TDC would, to increase the transitional justice process’ chance of success, accompany its referral of the cases with an in-depth report clearly explaining its choices on bases far removed from any modeling, a report that would demonstrate why the TDC distinguished these crimes from the others and explain the important values they violated (i.e. the values whose infringement constitutes a crime unforgivable despite the passage of years or possibly decades). Likewise, it is hoped that the TDC will work diligently to construct the identity of the victim independently of any political, regional, or class affiliation in order to protect the remembrance process from any effort to hurl it into the maze of politics and interests.
Hence, while the TDC can be criticized for refraining from taking clear, sufficient measures to protect its accomplishment in remembering the past, the risk of this justice failing and being distorted has increased recently because of factors external to it. Namely, another discourse concerning reformist visions for the future emerged, propelled by President Beji Caid Essebsi, at the same time that the cases were referred to the specialized chambers. Just as the TDC did not base its choice of cases on gravity-based criteria, Essebsi made working on individual freedoms and liberal values a “modernist” priority with which to crown his presidency without explaining the reasons or social circumstances that led him to consider it thus. While we do not wish to minimize some of the topics of individual freedoms that concern the dignity of thousands of citizens (such as abolishing the criminalization of homosexuality), the urgency of some of the other topics is seriously debatable and in any case, to give them the same impetus that must be given to urgent topics or even to put them in the same basket is politically unwise.
Making matters worse, Essebsi limited his initiative at launch to the issue of guaranteeing gender equality in inheritance. To many, putting this issue at the forefront seemed to be merely an effort by Essebsi to re-distinguish himself [from Islamists] as a modernist force after Ennahda had almost abolished this distinction in the course of reforming its rights discourse. To Essebsi, Ennahda’s deep-rooted Islamism had to be unmasked by forcing it to face the predicament of choosing between its commitment to a Quranic text and its commitment to the principle of gender equality.
This was echoed in Essebsi’s speech on 13 August 2018. He ignored all the points on which Ennahda had agreed concerning guaranteeing individual rights (some of which are very important and constitute a real gain for Tunisia) to re-accentuate a single issue, the one most awkward for Ennahda because it clashes with a Quranic text.
From this angle, irrespective of the truth of the president’s intentions and what human rights activists in Tunisia or the Arab region might make of the decision, Essebsi’s approach to setting the priorities of the future seemed to be a political tactic in its premise and goals. Rights considerations, on the other hand, seemed to be merely a tool in the use of this tactic. The intent was apparently not to achieve real reform but to rally the modernists in order to consolidate their representatives’ political standing in the face of the Islamists, especially Ennahda. The latter are once again being portrayed as they were during the authoritarian period, namely as the biggest obstacle preventing Tunisia from catching up with modernity. In stark contrast to late president Habib Bourguiba’s effort to formulate his proposals concerning the Personal Status Code in a manner compatible with Islam to achieve a national consensus on it, Essebsi strived to show the distinctiveness of his proposals in order to embarrass Ennahda, thereby making any consensus on it difficult to achieve.
Irrespective of intentions and aims, the choices regarding remembrance as well as reform seem at risk of becoming factional, meaning that they concern some factions in society and not others and strengthen factional identities more than they strengthen an inclusive, unifying consciousness. The priorities for remembrance seem to revolve around the repression of Islamists in the name of modernity, while the priorities for reform revolve around the aspirations of modernists in confronting Islamist ideologies. Hence, rather than the goal of the remembrance being an integral part of the process of building the future, things are heading – because of all the above – in the complete opposite direction, i.e. toward a contradiction between remembering the past and aspirations for the future. The sharp social division over the latter could return the dangers of Islamist ideology to the forefront and, subsequently, increase the social division over the past. Society appears divided and confused in its approach to its past as well as its future, with memory emerging muddled as the prospects for reform dwindle.
This article is an edited translation from Arabic.
Keywords: Memory Work, Tunisia, Truth and Dignity Commission, TDC, Transitional Justice
 Article 1 of Organic Law no. 53 of 2013 on Transitional Justice identifies “preserving and documenting the collective memory” as one of the goals of the transitional justice processes. Article 5 stipulates that the national memory must be preserved as that is “a right of all the successive generations of Tunisian men and women and a duty borne by the state and all the institutions subordinate to it or under its supervision in order to derive lessons and commemorate the victims”. Also, the TDC, under its internal statute, must devote one of its committees to the task of “preserving the national memory”, but the efforts of that committee and the entire TDC in this area remain limited and in want of a clear approach with institutional dimensions.
 When counting the complaints and victims, the TDC adopted the criterion of direct and indirect victims. Hence, in the case of a suspected death from torture, a number of family members were recorded as indirect victims and their complaints counted as separate complaints contributing to the overall total.
 See Afef Nahali, “The Judicial Dimension of Transitional Justice in Tunisia: A Critical Analysis”, published in this issue.
 On 6 August 2018, in an attempt to escape the pressure of the victims, the TDC issued a statement calling for those whom it labeled persons with unsupported cases to submit their corroborating evidence by 14 August 2018 so that it would not be forced to dismiss those cases.