Learning the lessons of transitional justice in Tunisia – a paradigm for global conflict resolution?

La liberté politique dans un citoyen est cette tranquillité d’esprit qui provient de l’opinion que chacun a de sa sûreté; et pour qu’on ait cette liberté, il faut que le gouvernement soit tel qu’un citoyen ne puisse pas craindre un autre citoyen. Lorsque, dans la même personne ou dans le même corps de magistrature, la puissance législative est réunie à la puissance exécutrice, il n’y a point de liberté; parce qu’on peut craindre que le même monarque ou le même sénat ne fasse des lois tyran- niques pour les exécuter tyranniquement.

Il n’y a point encore de liberté si la puissance de juger n’est pas séparée de la puissance législative et de l’exécutrice. Si elle était jointe à la puissance législative, le pouvoir sur la vie et la liberté des citoyens serait arbitraire: car le juge serait législateur. Si elle était jointe à la puissance exécutrice, le juge pour-rait avoir la force d’un oppresseur. Tout serait perdu, si le même homme, ou le même corps des principaux, ou des nobles, ou du peuple, exerçaient ces trois pouvoirs: celui de faire des lois, celui d’exécuter les résolutions publiques, et celui de juger les crimes ou les différends des particuliers.

– Charles-Louis de Secondat, Baron de la Brède et de Montesquieu

Reconciliation is a process and not an event … the creation of a truth commission was a critical moment for victims who, for so many years, suffered without a voice and an opportunity for those who perpetrated violence and injustice to share some of the burdens of their past.

– Archbishop Desmond Tutu

Transitional justice is a fundamental issue for all countries in the immediate aftermath of revolution, where complaints of mistreatment by a prior government or regime have no other satisfactory outlet. It is a means of embracing calm in an otherwise potentially volatile situation of political upheaval, and that is why there has been so much study of transitional justice projects in recent years. In this field, Tunisia has undoubtedly been a brave leader in pioneering new experiments, supported implacably by the well-intentioned efforts of the international community.

Tunisia’s pre-eminent legislative initiative, the Organic Law on Establishing an Organising Transitional Justice, establishes a Truth and Dignity Commission. Its purpose is to create a forum for the recording of complaints of wrongdoing, and the making of orders for reparation and rehabilitation. Although its formal role is not strictly in the nature of an exercise in criminal adjudication, the Commission has the powers of a court. By Article 40 of the law, it has wide powers to compel collection of evidence. It also has a mandate to develop programmes for reparation of injured parties and their relatives from public funds. It serves as a public forum to create a historical record. Nevertheless in appropriate cases, the Commission may refer matters for prosecution.

In the context of the Commission, there is provision for creation of a Fund for the Dignity and Rehabilitation for the Victims of Tyranny.

Another institution established by law is the technical committee for arbitration and reconciliation. This serves a forum for those who participated in the wrongdoings of the prior regime, to come forward with the evidence of what they did and seek the forgiveness of their victims and those affected by the reign of terror. In every such case, the state is obliged to participate, because it is understood that those with the courage to come forward before a statutory arbitration committee were, in the wrongdoings to which they wish publicly to admit, almost invariably acting as an agent of the government under circumstances of state terror. The arbitration committee has a mandate to investigate wrongdoings of this ilk, and again its principal function is to create a historical record of this dark period of the nation’s history. One distinguishing feature of this arbitration regime is that no agent of the state who appears before the committee is bound by official secrecy. Absolute openness is a legal prescription.

The law prescribes that the institutions of transitional justice for contemporary Tunisia, together with the schemes of compensation mandated by statute, are to be funded by a combination of government revenues, international organisation contributions, and private sector voluntarism. Importantly, trust fund arrangements are precluded. Funds must be allocated without preconditions, in order to secure the independence of the work of the institutions created by law. In all cases, those who fail to cooperate with the transitional justice regime are subject to the full force of law. While the contemporary institutions of justice may be merciful in light of historical misdeeds, the prerogative of mercy does entail the power of compulsion so that an accurate and judicial account of those misdeeds may be secured.

Notwithstanding these laudable intentions, a number of issues have arisen in connection with the Commission’s operation. One is whether the locus of the Commission’s work has been upon one of the foregoing statutory limbs of its operation rather than the others, and indeed whether all limbs have been working equally effectively. It would be regrettable if that turned out not to be the case, and the international community would have to shoulder its share of responsibility had it been engaged in developing a structure that subsequently turned out to be lop-sided either in its institutional arrangements or in its funding. Moreover there is a question of for how long a supervening system of revolutionary justice ought to persist alongside the ordinary courts of a state, the preservation of the majesty of which is always an imperative in state-building so as to convey a culture of economic and institutional continuity even amongst abnormal political upheaval. In general, transitional justice mechanisms should be expressly time-limited. Perhaps the gravest danger is that a transitional justice mechanism with an open-ended mandate might create market uncertainty, inhibiting the resumption of commercial activity so essential for any nation to pass successfully through a period of economic crisis. Such a risk must be inhibited at all costs.

The economic and international institutional framework of the Truth and Dignity Commission derives in substantial part from the UNDP and UNOHCHR Support to the Transitional Justice Process in Tunisia, providing for a budget of US$4 million over the period June 2014 to May 2017 of which UNDP itself committed some US$365,000. UNDP Coordinator Helen Clark herself presided over this structure during her visit in March 2016, and the relevant UN agencies were fortunate enough to incorporate the assistance of the International Centre for Transitional Justice. This tripartite structure, with its transparent funding arrangement, succeeded in creating an operational institution but some levelled a critique that to be most effective, the operation might have started work a lot sooner after the Arab Spring. One is left wondering whether it should not already have completed its work some five years after the event.

More recently, the activities of the Commission have interacted with equally important efforts to promote Tunisia’s continuing economic redevelopment. Reconciliation is always important, but no humanitarian mission can be solely backward-looking. The importance of preserving economic continuity in times of political change can never be underestimated. Tunisia is almost uniquely fortunate in that its revolution did not entail widespread economic destruction. Contemporary legislative measures to ensure that this abyss continues to be avoided are to be commended. Those who might level legitimate criticism should always be afforded due respect, but any state-building exercise must necessarily embrace a long-term view. It is now some five years since the Arab Spring changed Tunisian politics fundamentally and irreversibly. Yet one thing has not changed. People must still eat. They must continue their daily economic lives. They are entitled to continue to embrace the pluralistic values that have always characterised Tunisia as a warm and welcoming country both amongst its own population and to outsiders. Under no circumstances must destructive forces, with the express intention of sowing terror into a population with a view to forcing unwanted and undesirable degradation of a moderate political climate, be tolerated. Every necessary measure must be embraced by Tunisia’s enlightened and independently-minded government to prevent potentially catastrophic lapses in the hitherto admirable multi-faceted integrity of Tunisian society.

The work of the sometime resident coordinator of the UNDP in Tunis has been admirable, juggling as he has the legal and institutional perplexities of so complex a structure as the Truth and Dignity Commission. As is always the case, he has had to move onto less unstable climes and his departure comes as a matter of profound regret. Nevertheless that leaves a vacuum that must be filled. It is imperative upon the incoming Secretary General to take charge of the situation in Tunisia, so that the risk of further erosion might be mitigated by appropriate experts in his highly-qualified team.

Tunisian democratic polity is currently divided between secular and more religiously-minded political representation. This is a tension that the work of the Truth and Dignity Commission is critical in resolving. Yet in its current form, and subject to the inchoate principles of inter-institutional interaction that have recently characterised the occasionally uncertain execution of its mandate, some have complained that the Commission is not consistently performing that role. Nevertheless the solution is not difficult. As always, where cross-cutting UN imperatives may ultimately prove a hindrance notwithstanding a multiplicity of universally benign intentions, a single management structure is usually advisable. I advocate the appointment of an individual such as a Special Representative of the Secretary General, responsible directly to the UN Secretariat, to ensure the requisite coordination is guaranteed.

There is another issue, perhaps even more important. Tunisia has been the subject of some political instability in recent years. Were that to continue, one cannot exclude the very real prospect of that country being the genesis of another refugee crisis, as has been the unfortunate fate of its neighbours. Indeed that is the view of the Tunisia Chief of Mission of the International Organisation for Migration, when she reaffirmed there is not a quick or easy solution to strengthen the international community’s ability to identify and protect victims of trafficking. Instead, it is beholden upon us all to make a greater commitment from all partners across borders to protect all migrants regardless of their legal status. By land and sea, migrants keep trying to avail themselves of the most perilous routes to reach Europe, despite the well-known risks of mishap, abuse and death. Indeed, pushed by economic hardship and insecurity, these flows look set to increase in the coming months as weather conditions at sea improve.

For that reason the work of the UN’s refugee agency, as a pre-emptive measure ought to commence now, so as to foreclose the risk of a refugee crisis that may well explode if the current situation is left to fester. The international community should rally behind this imperative, in its operational, financial and strategic thinking. Refugee crises are far better resolved before they ever take place. The glory may be less, but so is the horror. It is my view that the United Nations High Commissioner for Refugees has a compelling imperative to establish preemptive measures in Tunisia now, using the funds available to it and calling upon funds at its further disposal. In this way, we may be able to prevent one further crisis erupting in the Middle East.