March 31, 2011

Amid the upheavals in the Middle East and North Africa, USIP’s Scott Worden discusses transitional justice in Egypt and Tunisia.

• In both Egypt and Tunisia, transitional justice is emerging as a key issue. Can you summarize why transitional justice looms so large, and why it is so controversial?
• Both Egypt and Tunisia are Muslim societies, with complex legal systems. What issues are associated with how transitional justice might play out in such contexts?
• Transitional justice frameworks have rarely been used in the Middle East. How can they be integrated into ongoing transitions to reinforce prospects for peace and stability in post-authoritarian settings?

In both Egypt and Tunisia, transitional justice is emerging as a key issue. Can you summarize why transitional justice looms so large, and why it is so controversial?

Transitional justice refers to a full range of mechanisms to address past atrocities and mass human rights abuse after a transition to a more open or democratic regime, including truth commissions, war crimes trials, memorials, and reparations.

In both Egypt and Tunisia, an authoritarian regime ruled for several decades, during which the state allegedly sponsored crimes against political opponents and minority groups. The recent ouster of President Hosni Mubarak in Egypt and President Ben Ali in Tunisia present the first real opportunity for victims to seek justice for the disappearance of their family members by security services, torture while in police custody, or imprisonment for political beliefs. These are deep rooted grievances that fueled the protests leading to political change and protesters therefore expect that their demands for justice will be met by the new administrations.

The difficulty going forward is that legitimate justice demands inevitably coincide with political fault lines within each country. Those who were victims of past abuse were out of power. Now that they have a voice, their pursuit of justice may be seen by groups who prospered under the old regime as an attempt at victor's justice.

There will be fears that collective blame for past atrocities committed by former leaders will be used as a pretext for broad exclusion from political or economic power in the future. Therefore, transitional justice processes must be transparent, inclusive, and incremental -- not sacrificing legitimate justice demands for promises of stability, but also acknowledging that past abuses created victims in many groups. It should be clear that while perpetrators must be held accountable, that accountability will not sentence their passive supporters to be future victims.

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Both Egypt and Tunisia are Muslim societies, with complex legal systems. What issues are associated with how transitional justice might play out in such contexts?

Transitional justice mechanisms have emerged as a fundamental building block of durable peace settlements in Latin America, Africa and Asia. They are relatively rare, however, in Muslim countries recovering from conflict—despite the fact that social and criminal justice is a fundamental principle of Islamic law. Broadly speaking, the principles of Islamic law align with international legal norms of truth, accountability and compensation for victims of mass crimes and human rights abuse. [See recent USIP Peace Brief titled: “Analyzing Post-Conflict Justice and Islamic Law“] But international courts and criminal sanctions have been painted by targets as illegitimate “Western” constructs that are somehow against Islam. In fact, given the essential compatibility of Islamic law and post-conflict justice norms, the explanation for why victims of atrocities in Muslim-majority countries seldom see justice after conflicts owes more to problems of poor governance, and a general absence of the rule of law.

The uprisings in Egypt and Tunisia present an opportunity to set the record straight. Both are secular states with plural religious traditions. But they are also deeply Muslim societies with strong Islamic legal traditions as well. The fact that the revolutions that overthrew the old regimes were accomplished without significant foreign support means that their approaches to transitional justice should not be tainted by accusations of any anti-Islamic bias, as was the case in Iraq and Sudan. Therefore, the transitions in Egypt and Tunisia present an opportunity for a new and important conversation to begin among Islamic legal scholars and justice advocates with implications throughout the Muslim world: what rights to Muslim victims have when they suffer atrocities from other Muslims? And what responsibilities do nations and the communities have to ensure that principles of Islamic justice are achieved?

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Transitional justice frameworks have rarely been used in the Middle East. How can they be integrated into ongoing transitions to reinforce prospects for peace and stability in post-authoritarian settings?

The details of politics and past crimes are different in every country, and there is no one-size-fits-all transitional justice solution for any country. However, there are some common ingredients for success. First, the approach must have a credible champion who is respected by all groups involved in the conflict and can be seen as a neutral arbiter. In South Africa, this was Nelson Mandela. In countries like Peru, it has been a balanced committee with representatives from multiple political factions or ethnic groups. Egypt and Tunisia will have to arrive at their own solution. But the more inclusive the process is, involving leaders who have credibility with members of the old regime and the new, the more likely a transitional process can be at promoting reconciliation rather than creating new conflicts.

A second key factor is to employ multiple mechanisms to address different types of crimes and different impacts on victims. Prosecutions may satisfy particular justice obligations, but will not provide compensation for victims, or identify the locations of the disappeared. Truth commissions can help to establish a common historical record, but may not address a need for specific reforms like disbanding a secret police force. If true, then no single approach will prove adequate for addressing decades-long injustices in complex societies.

Therefore, countries like Egypt and Tunisia should commit to a process that acknowledges multiple demands and addresses multiple needs over time, and not attempt to place an undue political burden on fragile institutions that may not be able to satisfy intensely felt demands.

Explore Further

• Eye on the Middle East and North Africa
  News Feature | March 29, 2011
• Egypt, Tunisia, and the Constitutional Movement
  On the Issues by Scott Worden | February 28, 2011
• Countries and Regions: Egypt