This essay is part of the Middle East-Asia Project (MAP) series on “Pathways to Transitional Justice in the Arab World — Reflections on the Asia Pacific Experience.” The series explores the pursuit of transitional justice in the post-Arab Spring Middle East, and how such efforts could be informed by past and ongoing justice processes in Asia-Pacific countries. See Resources …
In the wake of the revolutionary fervor that has swept the Middle East and North Africa since the beginning of 2011, retributive justice has taken precedence over restorative justice approaches as countries seek to address human rights violations.
The three regimes in Tunisia, Libya, and Egypt that were overthrown were clearly brutal and repressive. As such, it is appropriate to hold the leaders of these regimes accountable for their behavior. However, the ways in which retributive justice has been pursued have largely failed to produce justice in the broader sense. Rather, retributive measures have been politicized and have become tools to settle old scores and/or to cement the new regime in power. This is also true in Bahrain, where measures to address human rights issues have been implemented in the absence of a genuine political transition. There, it is anti-government protestors and the medical personnel who assisted the injured who have been the targets of the monarchy’s retribution. While these measures may satisfy regimes’ need to shore up their position in the immediate term, this type of justice seems destined to perpetuate injustice and generate new grievances.
By contrast, except in Tunisia, restorative justice measures have been notable for their absence. Shortly after the transition, Tunisia’s interim government established commissions to investigate corruption during Zine el-Abidine Ben Ali’s reign and human rights violations that occurred during the uprising. Legislation for a more comprehensive transitional justice program, including a truth commission to cover all of Tunisia’s history as an independent state, was finally approved in late 2013 after it was stalled for nearly a year amidst the political paralysis that gripped the country as a result of the assassinations of Chokri Belaid and Mohamed Brahmi. In Bahrain, the government created the Bahrain Independent Commission of Inquiry (BICI) in an attempt to deflect criticism of its response to early 2011 demonstrations. Restorative justice has not factored into how Egyptian and Libyan authorities have thus far sought to deal with the past. Other restorative measures, such as reparations, have not been widely used thus far either.
In this essay, I will provide a brief overview of the retributive measures employed by Egypt, Libya, and Tunisia, none of which are likely to promote the healing and reconciliation that would be conducive to a democratic transition. I then consider the potential of restorative justice to address the needs of these transitional societies. Although they are attractive, broad truth commission investigations that consider decades of abuse are not the answer at present, except perhaps in Tunisia. More generally, any transitional justice process is likely to be unsatisfying until physical and economic security improves.
Post-Arab Spring Retributive Justice
Where political transitions have occurred in the region, retribution has been the transitional justice method of choice. In mid-2011, Ben Ali and more than 20 top deputies were tried and convicted on corruption charges. The ousted president and several other defendants were tried in absentia after he fled the country for Saudi Arabia. A year later, separate regional military tribunals found Ben Ali and several other officials guilty for deaths that resulted from the repression of anti-government protests in late 2010 and early 2011. The trials were criticized for their speed and disorganization, for being conducted without the defendants present to defend themselves, and for being conducted in military courts. Beyond these, trials in Tunisia have not been widespread. The Tunisian judicial system remains corrupt, which delegitimizes attempts to carry out transitional justice through the courts. Some action has been taken to reform the courts and some corrupt judges have been expelled from their positions, but more will have to be done before the courts can be considered trustworthy. The limited scope of trials arguably aided the transition; Ben Ali and a handful of others were made examples, while most former regime supporters were given a stake in the new political order.
The breadth and pace of the trials have not satisfied victims of the old regime, however. In March 2012, for example, Tunisians protested outside the Ministry of Human Rights and Transitional Justice, calling for speedier prosecutions and medical coverage for those injured during the revolution. Protesters accused the government of exploiting those injured in the revolution to advance their own political interests and of having no intention of actually helping the victims. Another big question in the post-Ben Ali era is the fate of other former and current government officials affiliated with the former regime. No one has been prosecuted for the years of human rights abuses before Mohamed Bouazizi’s self-immolation. Though the government established the High Commission to exclude individuals from public life who held ministerial office under Ben Ali or senior positions within the ruling party, or who publicly called for Ben Ali to seek an additional term in August 2010, the process has been criticized for failing to inform individuals whose names appeared on the list and for not establishing a process through which individuals could challenge their exclusion. Despite these criticisms, retributive transitional justice in Tunisia does not appear to have contributed significantly to instability.
In Egypt, retributive measures have proven more controversial. Less than three months after being deposed, Hosni Mubarak and a few other former government officials were charged with corruption and using excessive force in responding to the 2011 protests. Beginning in August 2011, the regular judiciary conducted Mubarak’s trial in accordance with normal laws, something unprecedented in the Arab world at the time. As the trial dragged on, many Egyptians became unsatisfied, and victims’ families marched outside the courthouse. Critics argued that the trial was not conducted as competently as many had hoped. Moreover, like in Tunisia, many Egyptians wanted the trials to address abuses over the entirety of Mubarak’s reign. For the foreseeable future, this is highly unlikely. Many figures from Mubarak’s government remain in positions of power, particularly after the July 2013 ouster of Mohamed Morsi. The shifting fates of Mubarak and Morsi have been a source of tension in Egypt, and Mubarak was recently transferred to house arrest pending the appeal of his conviction. The symbolism of Mubarak’s release shortly before Morsi’s own trial began was not lost on Muslim Brotherhood supporters, who protested outside the court. In both Egypt and Tunisia, trials have only targeted a few individuals and have dealt with human rights violations that have occurred since demonstrations began in late 2010. However, with alleged perpetrators still in positions of power, retributive justice has proven more volatile in Egypt.
Retributive justice has also contributed to tensions in Libya, but for slightly different reasons. At the request of the UN Security Council, in March 2011 the ICC began investigating alleged crimes against humanity committed against anti-government protestors. It eventually indicted Muammar Qaddafi, his son Seif al-Islam, and other officials of the former government. Since the revolution, anxious to demonstrate its capacity to rule, the Libyan government has steadfastly refused to turn over indictees to the ICC, claiming that it has the capacity to conduct free and fair trials. Recognizing its inability to change the situation, the ICC endorsed domestic trials in mid-2013 and has tried to help ensure the quality of the proceedings. Yet some of the indictees remain in the hands of militias rather than the government, even as the trials are beginning.
Qaddafi-era victims and militias, some of whom committed atrocities in the name of the revolution, do not trust Libya’s judicial system or the nascent security sector and have engaged in vigilante justice against presumed Qaddafi loyalists. Frustrated with the slow pace of change,
armed brigades create investigation and arrest units; draft lists of wanted individuals; set up checkpoints or force their way into people’s homes to capture presumed outlaws or people suspected of aiding the former regime; and, in some cases, run their own detention facilities in their own headquarters, isolated farms or commandeered former state buildings.
Such vigilantism has undermined the development of more credible institutions and has generated new grievances.
Unlike in Egypt and Tunisia, Libya has engaged in a broader purge of supporters of the former regime. The 2013 Political Isolation Law has also been used for political ends. Approved by parliament under pressure from armed groups outside the chamber, the law threatens to alienate segments of the population by banning from government for ten years individuals who held senior positions under Qaddafi. Critics point out that the law contains no provision for judicial review or for individuals who left the government and joined the opposition, sometimes decades ago. For example, the Libyan National Congress President, Mohammed Magarief, resigned after the law’s passage. He had been Libya’s ambassador to India before opposing Qaddafi’s government and going into exile in the 1980s. The law seems intended to curb the influence of successful politicians, many of whom were part of Qaddafi’s regime at some point. The mechanism to replace banned parliamentarians benefits Islamist groups, whose representatives were runners-up in many districts. Thus far, retributive justice in Libya has been about settling old scores and has undermined the development of credible political institutions.
The Potential and Limitations of Restorative Justice
Nowhere in the region has transitional justice of any form been pursued for pre-Arab Spring human rights abuses. Given decades of abuse, restorative justice is attractive for principled and practical reasons. Restorative justice holds the promise of healing: repairing the harm done to individuals, reconciling victim and perpetrator, and restoring trust among competing groups in society. In the transitional justice lexicon, truth commissions, reparations, and memorialization have been the primary ways of pursuing restorative justice. A truth commission is an investigative body that
(1) is focused on past, rather than ongoing, events; (2) investigates a pattern of events that took place over a period of time; (3) engages directly and broadly with the affected population, gathering information on their experiences; (4) is a temporary body, with the aim of concluding with a final report; and (5) is officially authorized or empowered by the state under review.
Many believe that truth commissions promote individual and societal healing by acknowledging victims’ suffering and producing authoritative narratives of past conflict. Memorializing past suffering through such things as monuments, national holidays, or museums serves a similar purpose. Reparations, whether material or symbolic, are intended to help victims return to their condition prior to the violation. Given the history of repression in the region, there is clearly significant need for restorative justice.
Although retributive measures have rightly garnered the most attention in the post-Arab Spring Middle East, restorative justice measures have not been entirely absent, especially in Tunisia. In early 2011, the interim government established investigative commissions to examine corruption and human rights violations that occurred during the uprising. The interim government also released political prisoners to be reinstated in their jobs and eligible for compensation for their unjust imprisonment. The investigative commission on corruption gathered reparations requests from individuals who had their property seized by Ben Ali and his cronies. Finally, in some communities, streets have been renamed for individuals who died during the revolution. Tunisia also appears poised to examine its broader history of abuse. In December 2013, the National Constituent Assembly approved a comprehensive transitional justice program that included a proposal for a truth commission that would examine human rights violations from independence to the 2011 revolution.
Given the decades of violations common in many Middle Eastern countries, and given their focus on broad patterns of abuse over time, truth commissions are an attractive solution. Nonetheless, truth commission investigations are difficult in circumstances of continued instability. Evidence may be destroyed, as in Tunisia where, although the transitional government ordered government agencies to safeguard their files, in the early days after Ben Ali fled, “witnesses spotted people carting boxes loaded with files from the ruling party headquarters as soldiers looked on.” Moreover, until security improves such that truth commission investigators are able to collect evidence anywhere they wish and witnesses are comfortable speaking with investigators, the information they produce will be far from complete. It remains to be seen whether Tunisia’s security crisis of 2013 is a thing of the past.
Resources are yet another concern. Although the Tunisian commissions were composed of respected individuals, they encountered difficulties because they were underfunded, lacked proper technology, and were understaffed. The continued economic crisis competes with reparations and commissions for government funds and attention. In addition, the unsettled political situation arguably makes it easier to manipulate transitional justice for political ends. In Egypt, for example, an investigative committee, hand-picked by Morsi in 2012, implicated the military in crimes against protestors in 2011, when over a thousand people are estimated to have disappeared. The report, which was not publicly released, added to the tensions between Morsi and the military and ultimately helped lead to his overthrow. Finally, investigators and reparations administrators need to overcome popular attitudes toward the state. Observers noted a high degree of mistrust toward the interim government’s commissions in Tunisia, perhaps reflecting the fact that they were created by former Prime Minister Ghannouchi, who was closely tied to Ben Ali’s regime. Such a general distrust of government may be the logical consequence of decades of authoritarian rule, but it hampers restorative justice measures.
It may be that the time is not right for transitional justice at this stage. Given prevailing insecurity and government fragility, there is a genuine risk that transitional justice would prove ineffectual or too easily manipulated for political ends. Nonetheless, demands for justice will not disappear. In fact, new injustices will likely continue to multiply.
 Hemi Mistry, “Transitional Justice and the Arab Spring,” paper presented at an event held at Chatham House, 1 February 2012, http://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/010212summary.pdf; “Charges Against Tunisia’s Ben Ali Baseless, Says His Lawyer,” Al Arabiya, 20 February 2012.
 Hanen Keskes, “Transitional Justice Process in Post-Revolutionary Tunisia,” Tunisia Live, 30 January 2012, http://www.tunisia-live.net/2012/01/30/transitional-justice-process-in-post-revolutionary-tunisia/.
 Mischa Benoit-Lavelle, “Tunisia: Wounded and Families of Martyrs Stage Sit In at Transitional Justice Office,” Tunisia Live, 26 March 2012, http://www.tunisia-live.net/2012/03/26/tunisias-wounded-and-families-of-martyrs-stage-sit-in-at-transitional-justice-office/.
 Christopher K. Lamont and Héla Boujneh, “Transitional Justice in Tunisia: Negotiating Justice during Transition,” Politička Misao 49, 5 (2012): 32-49.
 Nathan J. Brown, “The Trial of the Century,” Foreign Policy, 3 August 2011.
 “Hosni Mubarak: Trial of the Century,” Arabian Business, 4 March 2012.
 Bel Trew, “This Is Not a Court, This Is a Coup!” Foreign Policy, 4 November 2013.
 International Crisis Group, Trial by Error: Justice in Post-Qadhafi Libya, Middle East/North Africa Report 140, 17 April 2013.
 Esam Mohamed and Aya Batrawy, “Libya Bans Gadhafi-Era Officials from State Posts,” Associated Press, 6 May 2013, http://news.yahoo.com/libya-bans-gadhafi-era-officials-state-posts-221333426.html.
 Ghaith Shennib and Marie-Louise Gumuchian, “Libya's Congress Chief Steps Down after Political Ban,” Reuters, 28 May 2013, http://www.reuters.com/article/2013/05/28/us-libya-resignation-idUSBRE94R0ME20130528.
 Priscilla Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (New York: Routledge, 2010), 11-12.
 National Lawyers Guild, “Promises and Challenges: Tunisian Revolution of 2010-2011,” 2011, http://nlginternational.org/report/Tunisia-Report-2011.pdf.
 Asma Ghribi, “Abdelfattah Amor Dies,” Tunisia Live, 2 January 2012, http://www.tunisia-live.net/2012/01/02/abdelfattah-amor-dies/.
 “Fulfilling the Right to Reparations,” International Conference on Addressing the Past, Building the Future, 15 April 2011, http://tjtunis.blogspot.com/2011/04/fulfilling-right-to-reparations.html.
 Borzou Daragahi “Tunisia, Where Record Keeping Is Good, Some Seek to Preserve Documents of Tyranny,” Los Angeles Times, 16 April 2011.
 Mathieu von Rohr, “Tunisia’s Steep Path to Democracy,” Der Spiegel, 8 March 2011.
 Evan Hill and Muhammad Mansour, “Egypt's Army Took Part in Torture and Killings during Revolution, Report Shows,” The Guardian, 10 April 2013.
 Von Rohr, “Tunisia’s Steep Path to Democracy.”