Why does MENA transitional justice fail?

Mariam Salehi's Transitional Justice in Process

Photo: International Center for Transitional Justice

Utter impunity for state violence is at the heart of the stagnation, corruption, repression and governance failures of MENA politics (and all other politics, manifestly including the United States). Arab regimes, whether monarchies or republics or bizarre amalgams, systematically abuse civil and human rights through widespread surveillance, arrest, torture, sexual violence and other forms of pressure. In the extreme, regimes like Syria’s (in the 1980s and in the 2010s) or Egypt’s (2013) carried out mass killings. Israel steadily annexes the West Bank while relentlessly repressing and controlling Palestinians without any meaningful sanction. International human rights organizations do what they can to publicize and shame all of this, but it’s difficult to shame the shameless.

For a brief moment in 2011, it looked like this might finally change. Egyptians and Tunisians called for transitional justice following the fall of their Presidents-for-life, demanding accountability for decades of repression and abuse. Egypt’s calls for transitional justice soon got lost in the turmoil of its turbulent transition and were shelved for good by the July 2013 military coup. Bahrain took a suprising step towards accountability after its brutal repression of its own 2011 uprising by authorizing the Bahrain Independent Commission of Inquiry chaired by veteran Arab jurist Cherif Bassiouni, but after the report’s release it systematically ignored the findings and the recommendations. NATO intervened in Libya under the avowed goal of preventing the Qaddafi regime from carrying out mass atrocities, which for a brief moment seemed to put muscle behind norms of humanitarian intervention and a responsibility to protect; those idealistic hopes soon faded as Libya’s transition degenerated into civil war and state failure.

In Tunisia, as Mariam Salehi chronicles in her compelling new book Transitional Justice in Progress, transitional justice took a much more central role: written into the Constitution, institutionalized into a Truth and Dignity Commission, holding public hearings and considering some 60,000 files, and ultimately releasing a densely document report detailing human rights abuses over the years. For all of that, the IVD failed to produce the kind of cathartic change which had been envisioned. It got derailed by political polarization, sidelined by elites threatened by its potential findings, and ultimately ending its work with a fizzle. Why did this pathbreaking effort for transitional justice fail? Or did it really fail at all? What, ultimately, can we expect of formal transitional justice initiatives?

Salehi has written what I believe to be the first full book length treatment of the Tunisian transitional justice project. She wrote and researched the book as events were in process, a method which allowed her to experience its highs and lows in real time along with the Tunisian actors whose work she documents. Her account offers unique and profound insights into how and why transitional justice disappointed expectations. (Listen to me talk with Salehi about her book on the Middle East Political Science Podcast here.)

I remember my own amazed shock while watching the first public hearings of Tunisia’s Truth and Dignity Commission in November 2016. The public airing of raw narratives of suffering at the hands of Ben Ali’s regime were galvanizing, accounts by women who had lost family to repression and by victims of torture describing their ordeals. traveled multiple times to Tunisia to research the IVD (the widely used French acronym for the Truth and Dignity Commission), what at the time I called “a rare and extraordinary exception to the nearly universal culture of impunity across the Arab world.” It was almost impossible to imagine Syrians holding such hearings in Damascus, Egyptians in Cairo, Bahrainis in Manama. Tunisia’s IVD seemed to offer the kind of unprecedented publicity and transparency that might actually hold MENA human rights abusers accountable for their crimes. You could almost imagine the abusers being punished. Such transparency and accountability for the powerful are, in my view, the heart of democracy: elections are important, in part because they offer a way to hold elites accountable. As we’ve seen all too often in the MENA — look at Lebanon, Iran, Iraq or Tunisia — elections all too easily simply reproduce the power of an entrenched, corrupt and unaccountable elite.

But for all of that enthusiam, for all the international support, all the hard work of the IVD, it failed to transform Tunisian political life. In March 2018, a Parliament led by Nedaa Tounis, a party dominated by figures from the old regime elite and motivated by anti-Islamism, voted to deny the IVD an extension of its mandate. The youth movement Manech M’Samah angrily protested the Nedaa-led government’s move to adopt instead an “economic reconciliation” under the transitional justice label which was widely seen as smoothing the return of the corrupt business elite of Ben Ali’s days into public life - the opposite, in their view, of transitional justice or accountability. A few short years later, President Kais Saied summarily dissolved the Parliament and suspended the Constitution, leaving Tunisia in today’s ever more autocratic limbo. The International Center for Transitional Justice pointedly noted that his campaign against corruption made no reference to the transitional justice provisions of the suspended constitution, as he dismissed the head of the Dignity and Rehabilitation Fund for the Victims of Totalitarianism while arresting none of those mentioned in the final report of the National Committee to Investigate Cases of Corruption and Embezzlement.

Salehi offers a more complex judgement than simply success or failure when evaluating the path of Tunisian transitional justice. Its ambitions may have been ground down by the force of partisan polarization and institutional politics, but it did release a final report informed by its research and hearings. She highlights the role of international organizations in intervening early to shape and guide Tunisian transitional justice. The “transitional justice industry,” as she demonstrates, brought in a well-developed set of best practices developed in other countries. While the academic literature has been critical of these “off the shelf” international training packages, Salehi offers a nuanced reading. The Tunisians who took up these international trainings and practices adapted them to the local context. They didn’t, as the literature sometimes assumes, just mechanically follow international guidance. They quickly absorbed the language and lessons of transitional justice and then adapted them. And she singles out some of the international actors, such as the International Center for Transitional Justice, for playing positive roles in both supporting the IVD and, when necessary, advocating for it.

The real problem for the transitional justice project was politics. The revolutionary unity and spirit of 2011 broke down quickly in Tunisia - not as decisively or violently as in Egypt, but much more virulent than many casual observers of a ‘successful democratic transition’ recognized. Transitional justice got caught up in the political backlash against the electoral success of the Islamist Ennahda Party and the return in force of the old elite. The IVD found a very large number of cases of Ennahda members being abused, primarily because Ennahda had been a primary target of Ben Ali’s repression. But in Tunisia’s fevered transitional atmosphere, that translated into the IVD being seen as an instrument of Ennahda. Salehi describes the impact of popular myths and fears of Ennahda’s hidden agendas, fueled by a partisan media and by longstanding conspiracy theories and collective myths. The collective empathy necessary to the success of transitional justice, she suggests, degenerated in the face of this polarization and dehumanization to the point where Ennahda members’ memories of torture and suffering under Ben Ali no longer elicited sympathy.

Does Tunisia’s experience mean that transitional justice is impossible, that we should stop putting our hopes in formal truth and reconciliation processes? Salehi offers no easy answers. Transitional justice can be professionalized, best practices can be followed, and meaningful progress can be made towards publicizing past abuses. But her account of the “frictions” which disrupted the IVD, shifting popular perceptions of its meaning and functions, shows that the process can never be insulated from politics. Nor should it be. Accountability, transparency, justice - these are inherently political. For the old elites to face meaningful accountability, there must be fundamental political change; for there to be fundamental political change, old elites must face meaningful accountability. Salehi’s book offers a first account of one of the most important efforts at transitional justice and accountability in the MENA region, one which will reward readers interested in these critically important questions.