In the wake of The Jasmine Revolution in Tunisia, the concept of transitional justice has risen to notable prominence. This led to the establishment of a Truth and Dignity Commission (TDC), enshrined in the new Constitution of 2014. And yet “memory” has remained a philosophical and sociological notion, and the problematics that surround it are still peripheral.[1] Why do we remember? Is it because of the need to treat victims justly, or in order to hold accountable those who have avoided punishment? Is it to bolster public awareness surrounding the atrocity of human rights violations? Or to consolidate national collective memory as an inoculation against repeating the crimes of the past, and a starting point for building a more just future? In other words, what is the “memory” we hope that the TDC’s work will instill in the Tunisian conscience?

This question has become more urgent now that the course of transitional justice has become confined to a number of specialized judicial chambers, which are hearing cases referred to them by the TDC. These trials have become the “labor pangs” expected to produce Tunisians’ memory of their pre-2011 past. For each of us, memory is a vast cave in which events accumulate; with our limited understanding of its nature or its guiding force, each of us highlights some aspects and blocks others as a result of experiences, knowledge, sensitivities and interactions of which we are unaware.

“Memory work” entails revisiting the depth of these caves within each of our consciences, bringing some of what is stored there (whether accessible or repressed) to the surface, reinvestigating and reconsidering these memories in order to present them in a new way. In this sense, memory work emerges not out of the need to restore suppressed or lost memories, but rather primarily to provoke an agitation of conscience – paving the way to recreate past events that have been lingering in the minds of Tunisians, and in some form or fashion rearrange them according to their collective emergence. Perhaps the most important aspect of memory work is to extrapolate individual cases from their purely personal character towards an understanding of the backgrounds of their human and social factors and dimensions, whether in terms of the suffering and pain of victims or the greed and tyranny of the perpetrators (or torturers).

Memory work is not merely relevant to the generations who have lived through the events in question; it also applies to the generations that follow. These younger generations have their own perceptions of Tunisia’s past, based on the process of memory work. Naturally, this work is built upon specific choices, and it is impossible for any society to undertake a comprehensive review of all the cumulative events in its past. This is clearly evident in the work of the TDC. The TDC heard 62,713 grievances, and conducted closed hearings with 49,654 victims of these complaints.[2] The TDC restricted public hearings to a limited number of these. Through the end of July 2018, a mere 19 cases had been transferred to specialized judicial chambers (later, the number rose slightly). In most instances, the TDC only heard from victims, limiting additional research and investigations to a very limited number of cases.

Which cases did the TDC decide to refer to specialized judicial chambers? This question, as well as the issue of limiting memory work to these cases, are inseparable from a number of other questions, no less important. These questions revolve around the aim of memory work, and the criteria that were adopted in selecting these cases in order to achieve that aim. What is the aim? What were these criteria? To what extent are they compatible with achieving the hoped-for aim of memory work?

Reviewing the criteria of the TDC as they were publicized, as well as the nature of the cases selected for transferral, we have observed that they were not based upon legal standards (for example, the concept of aggravated offenses).[3] Instead, these choices were based on achieving a specific balance between different political affiliations, geographical regions, time periods, and types of violations. And even so, scrutiny of the nature of the cases that were transferred reveals an infringement of these balances: above all else, the TDC appeared to have based its choices on modeling and representation (that is, building a representative sample of cases based on the proportions of the cases they received). This modeling also gave priority to case files that included substantiation and evidence, and hence entailed less of a possibility that investigating these cases would result in a dead-end or in disappointment.

While this kind of sampling might be justified out of a desire to involve a greater number of regions and political currents in this work, there is also a danger in adopting it. That danger lies in confining a victim to their partisan or regional identity, which in turn becomes an obstacle to establishing an identity of “the victim” as such. Moreover, a case that involves a victim from a particular faction becomes a means to secure justice for that faction (and perhaps strengthen its legitimacy). This could lead to a reproduction of factionalized and multiple memories, rather than to strenghthening awareness around collective national and humanistic considerations of these violations in a way that results in a collective national memory. The approach entails a number of pitfalls, most notably the following:

 

1. The victims whose files were not referred may feel that they were discriminated against, and that the course of transitional justice has become, as a result, another occasion for the violation of their rights. An approach based on a representative sampling may have pedagogical or academic benefits, but it may also clash with the foundations of rights-based work, where any difference in status should be justified through considerations of public interest, and not on instances of discrimination on the basis of individuals’ inherent traits.

The TDC’s claim that it ruled out files that did not contain sufficient indications or evidence does not mitigate this problem. Not only should it go without saying that a victim ought not to bear any of the burden of providing proof in any memory work, but there are also pressing questions about the seriousness of the methods of inquiry that the TDC provided in investigating the grievances it was presented with.[4] Doesn’t a lack of evidence in a given file often constitute further evidence of the magnitude of the cover-up, which protracted the violation against the victim and consequently its gravity? The clearest evidence of this is that numerous associations representing victims of the authoritarian period have worked to organize a campaign titled “What happened to my file?” The aim of the campaign is to shed light on the shortcomings of the TDC in dealing with victims’ case files.

 

2. Perceptions surrounding memory work may increase the risk of this work becoming factionalized. This can happen should a situation arise – intentionally or not, through the actions of the TDC or external factors – in which the TDC or the specialized judicial chambers highlights a victim’s factional identity at the expense of their identity as a “victim.” In this case, a sampling approach could lead to partition and division within memory work. As a result each faction takes interest only in the cases that concern it, and in the suffering of its own followers, without devoting attention to other cases.

It is not inconceivable that some political factions could resort to making their own victims into martyr icons, and place them at the heart of their political project. Adding to apprehensions on this front is the fact that as of the end of July, nearly two-thirds of the cases referred by the TDC have been about Islamists. This in turn raises the fear that within public sentiment, memory work and transitional justice have become an occasion for raising Islamists’ profile and enhancing their legitimacy.

 

3. Perhaps most dangerous, however, is that a path might be cleared for lawyers appearing before the special transitional justice chambers to pursue a legal discourse about selective prosecution of their clients. Why are these cases in particular being prosecuted? Is it right to limit accountability for crimes committed by the regime by prosecuting only a small number of them? Doesn’t this violate the principle of equality before the law and the judiciary? Such an argument could acquire serious political force if such lawyers managed to characterize this selectiveness as an example of bias in favor of one faction over another (for example, if they identified a bias against modernists in the selection of cases).

Adding to the likelihood of this occurring is the fact that the majority of cases involved concern crimes that have already been tried. The TDC has not presented new evidence in these cases, but instead has disputed the proportionality of the penalty to the gravity of the offense. Hence, the TDC has avoided addressing those who escaped from punishment altogether on the pretext that there is no evidence, instead persisting in retrying those who have already been convicted and demanding harsher sentences in their cases.

Naturally we do not mean to imply that memory work ought to be comprehensive; indeed, it would be impossible to recall all the violations that transpired over the decades. Nor do we claim that memory work can always overcome the threat of factionalization, especially given the intensity of social fragmentation. However, we would say that to increase memory work’s chances of success, the highest cautionary measures must be taken to justify the way that files are chosen. This is essential in order to dispel any serious doubts that these choices are based upon factional or political considerations.

Perhaps a basic starting point would be to adopt clear legal standards focused on the seriousness of violations and criminal liability, with seriousness increasing based on the significance of the values that were violated. This approach can be seen in the Rome Statute of the International Criminal Court, whose jurisdiction covers only the most serious crimes (war crimes, crimes against humanity). This is based on the premise that given the costs, it is impossible for the international court to deal with anything beyond a limited number of crimes, hence it should address the most serious crimes from an international point of view. This is also the case in the jurisdiction of a number of ad hoc international tribunals (Cambodia, the former Yugoslavia, etc.).

In addition to transferring certain cases, the TDC was also expected to produce a detailed report explaining its choices, beyond the sampling of cases. Such a report would bolster the chances of success for transitional justice, confirming why the TDC focused on these crimes and not others as well as the serious values that these crimes violated. In other words, such a report would explain why the violation of specific values was considered criminal and should not be forgiven, even if they took place years or even decades ago. The TDC was also expected to work to establish an identity of the victim beyond political affiliation, regional origin, or social class. This would have protected memory work from attempts to toss it in the maze of politics and special interests.

Certainly the TDC can be criticized for not taking clear and sufficient measures to ensure the success of memory work. But the risk that this form of justice will fail and be distorted has increased lately as a result of factors external to the TDC as well. This is the result of another discourse that has emerged concerning a vision of reform for the future. Tunisian president Beji Caid Essebsi’s promotion of this vision coincides with the TDC’s referral of cases to specialized judicial chambers. Whereas the TDC has not based its selection of files on “criteria of seriousness,” Essebsi has highlighted work around individual freedoms and liberal values as a priority of “modernizers.” He intended this as a crowning achievement of his presidency, but without explaining the reasoning or social context behind this position.

Without detracting from the significance of some of the issues connected to individual freedoms that concern the dignity of thousands of citizens (for example, voiding the criminalization of homosexuality), the urgency of some others is still a matter of serious debate. It is politically unwise to grant them the same impetus necessary for truly pressing matters, or to place them in the same category.

Compounding the seriousness of the situation is the fact that Essebsi limited his initiative initially to the issue of gender equality in inheritance. For many, it is clear that this issue is merely an attempt on Essebsi’s part to re-distinguish himself as a modernizing force, after Ennahda had nearly eliminated that distinction through their efforts to develop rights-based rhetoric. It was inevitable that Essebsi would unmask their deep-rooted Islamism by placing a dilemma before them: a choice between commitment to a Quranic text or commitment to the principle of gender equality. This resonated strongly in a speech on 13 August 2018, wherein Essebsi ignored all of the points related to individual rights that Ennahda had agreed to (some of which are very important and constitute a real gain for Tunisia) in order to emphasize a single point that would cause the most embarrassment for Ennahda: forcing a clash over a Quranic text.

Aside from the president’s intentions, or what lawyers from Tunisia or the Arab region may make of the report of the Individual Freedoms and Equality Committee (which the president formed), Essebsi’s approach to setting priorities for the future appeared to any reasonable observer to be a political tactic in both its premise and its objectives. In this light, considerations of rights appeared to be merely an instrument or tool. It is as though the intention is not to achieve human rights reform, but rather to galvanize modernists to consolidate their political representatives’ authority against the Islamists, led by Ennahda –– and to label them in the same way as during the period of authoritarian rule: as though they are the greatest obstacle preventing Tunisia from catching up with modernity. Unlike former president Habib Bourguiba’s efforts to formulate proposals concerning the Personal Status Code in a way that was in alignment with Islam in order to achieve national consensus, Essebsi has taken the exact opposite approach. He has highlighted the singularity of his own proposals out of a determination to embarrass Ennahda and make it more difficult to reach a consensus.

Apart from any question of intention or purposes, the choices made within both memory work as well as reform face the pitfalls of turning into a factional affair. They have concerned themselves with certain categories of society at the expense of others, and with strengthening factional identities rather than a unifying collective awareness. It is as if the priorities of memory work revolve around repressing Islamists in the name of modernity, and the priorities of reform revolve around modernists’ aspirations to counter Islamist ideologies.

Finally, instead of the goals of memory work becoming an essential part of the process of building the future, matters are turning in the exact opposite direction. That is to say, they are creating incompatibilities between remembrance of the past and aspirations for the future. A sharp social divide around aspirations for the future could bring dangers of Islamist ideologies to the fore, and sharpen social divides over the past. Society appears divided and distorted not only in its approach to its past, but in its approach to its future as well. A blurred memory emerges, and the possibilities for reform dwindle.

 

This article is an edited translation from Arabic.

 

Keywords: Truth and Dignity Commission, Tunisia, Memory Work

 

[1] The first article of Basic Law 53 of 2013, concerning transitional justice, stipulates that “preserving and documenting collective memory” is one of the aims of the transitional justice process. Article 5 of that law stipulates that “preservation of national memory is a right for Tunisia’s future generations, and it is a duty of the state and all of its institutions and those it oversees to carry out in order to learn from its lessons and commemorate its victims.” According to its rules of procedure, the TDC was tasked with assigning one of its committees the mission of “preserving national memory.” Yet it is worth noting that the efforts of that committee and indeed the TDC itself remain limited, and lack a clear approach with institutional dimensions.

[2] When grievances and victims were counted, both indirect and direct criteria were used. Thus, in a case of a suspicious death under torture, family members were recorded as indirect victims, and their complaints counted independently in the total number of complaints.

[3] See Afaf al-Nihali’s article, “Files of Judicial Accountability: Reading from Abroad,” in the journal Tunis No. 13, August 2013.

[4] In an effort to evade pressure from the victims, the TDC issued a statement on 6 August 2018. The statement called upon those who had files that did not include supporting evidence to present evidence or corroboration no later than 14 August 2018, as they would not refer such files after that date.