Tunisia has recently witnessed youth uprisings led primarily by the unemployed. The uprisings took off in the same regions that witnessed the events that led to the fall of the regime on January 14, 2011. The same banners demanding employment and the right to development were raised. Conditions in these regions remain unchanged since 2010, even though five years have passed since the revolution of the right to “work, freedom, and national dignity”. Some of the regions even stress that their situations have deteriorated. The recent events that the country has experienced prompt us to ponder their relationship with the path of transitional justice, as well as the extent to which this path can recognize these conditions, and the solutions that it can provide.

 

1.     Recognizing “The Victim Region”

Law No. 53 of 2013 on Establishing and Organizing Transitional Justice (hereafter, the “transitional justice law”), issued on December 24, 2013 contained a broad definition of a victim. Article 10 stipulated that, “In this law, a victim shall mean any individual, group or legal entity having suffered harm as a result of a violation…This definition shall include every region which was marginalized or which suffered systematic exclusion”. This definition, which included regions as victims, requires us to define the concept of a region itself, as well as the concept of a violation that makes a certain region a “victim region”.

1.1   The Region: A New Concept

The transitional justice law used the term “the victim region” [al–mintiqa al–dhahiyya], and this usage was deliberate as it is concordant with the constituents of transitional justice. Tunisian law does not use this term [region], for it divides the national territory firstly into governorates [wilayat], then into delegations [mu’tamadiyyat], and then into sectors [imadat]. Development plans use the term “area” [jiha], which is broader than the terms used for administrative division. Additionally, the term “municipalities” [baladiyyat] is used for the local division of cities, which are considered urban areas, while “provincial councils” [majalis qurawiyya] may exist in rural areas.

Therefore, the region, in the transitional justice law, is any social–geographical space irrespective of the extent to which it is related to an administrative unit.
 

In this regard, we do not share the position articulated in the dossier on Kasserine submitted by the Tunisian Forum for Economic and Social Rights, which designates Kasserine as a victim region. Such a categorization identifies the concept of region in the transitional justice law with the concept of governorate. This interpretation cited several facts: that the adopted regional [jihawiy] development policy is also based on the concept of governorates; that the Ministry of Development, Investment and International Cooperation relied on governorate–based administrative division of territory; and, that the internal regulations of the Truth and Dignity Commission (TDC) stressed the placement of a regional [jihawiy] office in every governorate.[1]

This argument is unconvincing as there are governorates that have not been affected by marginalization in their entirety; rather, the marginalization has been limited to specific regions (delegations or sectors) inside them. Hence, the concept of region may correspond to a governorate in its entirety, as is the case with Kasserine which submitted its dossier to the TDC as a whole governorate in June 2015 –or to a delegation– and, as is the case with Ain Draham, which is a part of the Jendouba Governorate and submitted its dossier as a delegation in February 2016.[2] However, there is nothing to stop a sector, neighborhood, or section of a neighborhood in a particular city from submitting a dossier. This concept of region recognizes a living reality evident in the recent protests, which are spread over delegations in their entirety, over municipalities, and over residential neighborhoods. This definition is also concordant with the requirements of transitional justice as in some cases the violations affect some of these regions and not others.[3]

1.2   Systematic Marginalization and Exclusion: Difficult to Prove

The transitional justice law only considered systematic marginalization and exclusion. This raises the question: what are the components of this marginalization and exclusion, and how can its systematic nature be proven?

The law of transitional justice provided no precise definition of the concepts of marginalization and exclusion. Hence, we must refer to the humanities and social sciences to define these concepts. In these fields, marginalization is a form of unjust and perpetual discrimination or deprivation that constricts a group of people’s opportunities for growth and prosperity in life, and that stems from social, economic, and/or political choices or courses.[4] Exclusion, on the other hand, relates to courses that distance or exclude people from access to rights and services, including suitable work, appropriate pay, education and training, participation in public life, and decision making. Exclusion and marginalization may affect any civil, political, economic, social, cultural, or environmental rights. This is confirmed by the transitional justice law, which does not distinguish between [different] human rights, but rather refers to them as a single conglomeration (see, for example, Articles 1, 8, and 10).

In this regard, the link between transitional justice and economic and social rights is an important element that has been gradually incorporated into the transitional justice approach. In 2006, United Nations High Commissioner for Human Rights Louise Arbour stressed that these rights are important and must not be eclipsed by the legal–penal approach, which is by itself not enough to achieve justice.[5] The Secretary General of the United Nations underscored the same point in 2010 when he urged the mechanisms of transitional justice to pay the utmost consideration to structural causes, particularly economic ones, when developing approaches to reform and safeguards against repetition [of past violations].

Economic and social rights were also incorporated into the course of transitional justice in numerous earlier experiences, such as that of East Timor, Sierra Leone, and Peru.

However, the problem of defining systematic exclusion and marginalization still stands. Is describing the state of the area (i.e., its poverty, unemployment rate, poor infrastructure, and school dropout rate) enough to prove the presence of systematic marginalization and exclusion? Or is it necessary to prove the existence of a will and intent to exclude and marginalize, especially as contexts of autocratic and dictatorial regimes are very important when it comes to determining causes of human rights violations? That a right is not being fulfilled is not enough to prove an “intention” to exclude and marginalize, as it could be attributable to circumstantial social, economic, climatic, and global causes. Such causes would conflict with the “systematic” characterization and are the arguments that regimes usually invoke to justify their failure to work towards developing specific regions.

Systematic exclusion and marginalization is related to fundamental concepts such as non–discrimination on any basis, and the right of citizens to access rights and services. Hence, the regions that consider themselves victims must demonstrate, on one hand, that they cannot access their rights and services and, on the other hand, that the government has not worked to alter these circumstances at all despite the passage of decades. This task is easy if there are development indicators, on the one hand, and budgetary documents and development plans, on the other. The elapse of decades of deterioration on the level of rights and services reflects responsibility on the part of the government because it failed to take the necessary action throughout that period.[6] It is no coincidence that in every revolt, the same regions that rank the lowest in the Human Development Index (HDI) in Tunisia are involved. The HDI for these regions, which include Kasserine, Sidi Bouzid, and Jendouba, falls below 0.1 while the national average is approximately 3.0. They all ranked on the bottom 10 rungs of this ladder of 264 delegations. It is also no coincidence that their unemployment rates –28% in Ain Draham and 26.2% in Kasserine– is nearly double the national average of 15%. The situation is exacerbated by the sense of deprivation and injustice felt by the residents of these regions, particularly when they see their natural resources (such as wood, pumice, water, esparto, and minerals) being extracted from them and transferred to faraway places. This status quo remains largely unchanged since the 1960s, and its continuation can only produce the same results: protests and uprisings. How can contexts of transitional justice deal with such circumstances?

 

2.     Means of Addressing the Victim Region

Returning to the law governing transitional justice, we find that it covers neither how the victim regions can be represented, nor the TDC’s role in relation to these regions and collective reparations.

 

2.1   Mechanisms for Representing the Victim Region

The law governing transitional justice did not specify any procedure for submitting claims (their form or content). It merely set a one–year timeframe for submissions and allowed the TDC to extend this timeframe by 6 months. The TDC did extend the submission period, particularly because by the end of the first year, only one dossier –that of the Kasserine governorate– had been submitted to it. By the end of the extension period (June 14, 2016), no more than 10 region dossiers are expected to be submitted. Even though neither the law nor the TDC stipulated stringent requirements for submission (only a copy of the applicant’s ID card and a completed form lodged with, or sent digitally to the TDC), just one dossier –that of Ain Draham– has so far been submitted during the extension period.

The decision not to impose many conditions on submission is motivating individuals to submit their claims, but has not had the same impact on collective and regional claims. Such dossiers require the formation of a work group and the adoption of a methodology of researching and writing reports that is unfamiliar to civil society organizations, especially in the regions that have suffered marginalization and exclusion.

In our assessment, the region dossiers serve multiple purposes. The first purpose is for the work to be conducted by the residents of the region itself. This will create a collective work dynamic and draw residents of various affiliations, projects, and ages together around a unifying project that relates to their past, present, and future. The second purpose is for the residents of the region to realize the reality of the situation their region is experiencing, and to prepare their region’s dossier themselves. By doing so, the residents can ensure that the report is free from the generalities and truisms about their region and themselves, that usually overshadow them.

The dossier’s preparation is an opportunity to precisely diagnose the region, its problems, and its deficiencies without succumbing to generalities, on one hand, and simplification, on the other. The third purpose is for the residents of the region to present, by themselves and for themselves, their own conception of their future and the future of their region within a framework of equitable, comprehensive, balanced, and sustainable development. To do so, residents must think deeply about sustainable solutions and how to achieve them, and break the pattern of waiting for aid, support, and [external] decisions. This work methodology gives substance to the collaborative work and to the act of setting goals, developing programs, and thinking about budget administration. However, it requires will, training, and an appropriate framework.

Returning to the dossiers that have been submitted –the Kasserine dossier and the Ain Draham dossier– we find that the former was prepared by two organizations, one national (the Tunisian Forum for Economic and Social Rights) and the second international (Lawyers Without Borders). The dossier was submitted in the name of the former organization, represented by its president, and not the organizations or inhabitants of Kasserine. This report was an opportunity to discuss and debate the work methodology as well as the report’s content. The second report, on the other hand, was prepared and submitted by organizations from Ain Draham with support from a national organization (the Al–Kawakibi Democracy Transition Center). These organizations attempted to take advantage of the Kasserine report and present a different [kind of] report, based more on qualitative analysis and less on the qualitative statistical aspect that characterized the Kasserine report. In preparing the report, they tried to create a dynamic between the various constituents of civil society in Ain Draham, particularly youth groups.
 

This preliminary work conducted by civil society organizations can provide citizens with a model work document encouraging the submission of region claims, both before the current authorities and during the preparation of programs and establishment of the decentralization stressed in the Constitution. It may also provide the TDC with a database of important information for preparing its reports.

 

2.2   The Role of the TDC

According to the law that established it, the TDC’s role is to receive complaints and petitions relating to violations (Article 40), and to develop a comprehensive program to redress the individual and collective harm suffered by the victims of the violations (Article 39). It therefore must accept all dossiers and claims by the end of the legal timeframes and prepare this program or these programs. Doing these things may take a long time (2 to 3 years), during which we may face immediate and urgent claims. In this regard, the law of transitional justice plainly stipulates for the TDC the capacity to “take immediate victim protection and compensation measures” (Article 39, clause 4). While this text may ostensibly be restricted to individual victims, the term “victims” was used without qualification and can therefore be interpreted in light of Article 10 of the same law, which incorporates “areas that have suffered systematic marginalization or exclusion” into the victim concept. Pursuant to this interpretation, the TDC may take immediate protection and compensation measures for victim regions. But what action can the TDC take upon initially accepting the dossiers submitted to it in this respect? That the TDC has received very few victim area dossiers does not prevent it from studying those dossiers to pinpoint the urgent needs of those regions. The TDC can then present these needs to the decision–making authorities so that these authorities can take them into consideration when developing its programs and budget.

In this regard, the TDC obtained the Kasserine dossier in June 2015, six months before the 2016 state budget was sealed. Subsequently, the TDC had enough time to study the dossier and prepare an urgent report about the region’s immediate needs and submit it to the government, so that it could then be introduced into parliament, albeit on the occasion of the discussion about the TDC’s budget. This approach makes the TDC a partner in developing programs and planning for the future of these areas, which, if they continue to be marginalized and deprived of justice, they will revolt again.

 

Conclusion: Reparation and Development

The “victim region” is one of the concepts that raises a question about the right to development and the extent to which this right is connected to the reparations that could be determined for these regions.

The Constitution gave constitutional force to the right of individuals, groups, and regions to development by stipulating that “The state shall seek to achieve social justice, sustainable development and balance between regions based on development indicators and the principle of positive discrimination” (Article 12). This right should not be confused with the right to just and fair reparation for victims as stipulated in Article 11 of the transitional justice law. This Article states that such reparation “constitutes a right guaranteed by law and the State shall take sufficient and efficient reparations measures in line with the seriousness of the violation and the situation of every victim. The State’s available capacities should be taken into consideration when implementing reparations”. Reparations, although shouldered by the state and its capacities, should precede and coincide with the development programs to which every area and region is entitled. Hence, the development programs should not become mechanisms for redressing the harm caused by marginalization and exclusion. Reparation programs are developed to address the past experience of those regions and reduce the gap between them and other, more developed regions; then the development programs based on the future goals of each area can occur. The principle of positive discrimination stressed in the Constitution is one of the most important keys to the compensatory–developmental approach.

This article is an edited translation from Arabic.

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[1] See the victim region dossier for the Kasserine governorate, Tunisian Forum for Economic and Social Rights.

[2] See the dossier on the Ain Draham delegation as a victim region.

[3] In this regard, see Habib al-Ayib, A Field Study on Issues of Marginalization in Tunisia: The Sayyida Manubiyya and Zuriq Neighborhoods as an Example, Tunis, the Arab Institute for Human Rights, 2012, p. 60.

[4] Muhsin Awd, Issues of Marginalization and Access to Economic and Social Rights: Towards New Approaches to Combating Marginalization in the Arab World, Cairo, the Arab Institute of Human Rights, 2014, p. 212.

[5] Malcolm Langford, (2008). “The Justiciability of Social Rights: From Practice to Theory”, Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, M. Langford, ed., Cambridge: Cambridge University Press.
[6] Azzam Mahjub, The Right to Suitable Work and Regional Development, Tunis, the Arab Institute for Human Rights, 2014, p. 114.