ICTJ Program Report: Tunisia
Since the uprising that sparked the “Arab Spring,” Tunisians have demonstrated unwavering commitment to transitional justice. Before its revolution in 2011, Tunisia was under the rule of President Zine el Abidine Ben Ali, who took power in 1987, and whose government kept power through oppressive security policies designed to quell opposition: according to information to date, over 10,000 people were arbitrarily detained during his rule.
Several weeks of protests starting in December 2010 ended with Ben Ali’s overthrow in January 2011, when he fled the country. Tunisia’s first democratic and transparent elections were held on October 23, 2011, and a new constitution was adopted in January 2014. In December 2013, Tunis passed a groundbreaking Transitional Justice Law, which outlines a holistic approach to ensuring truth and justice for the past abuses, and deals with prosecutions, reparations, and institutional reform. The Law also established the Truth and Dignity Commission (TDC), a body created to investigate gross human rights violations that have occurred in the country since 1955, which will be formally launched by President Marzouki next week.
In this ICTJ Program Report, we talk with Rim El Gantri, Head of Office for ICTJ’s Tunisia Program, about this dynamic time of change in post-revolution Tunisia. Ahead of the launch of the TDC, El Gantri explains how the country is preparing to face the truth and seek justice for a past of economic marginalization, targeted violence and political oppression.
The revolution of January 14, 2011 signified the will of the Tunisian people to end 23 years of oppression and dictatorship. This will was combined with a desire not only to deal with the past, to know the truth, and to heal victims of the previous regime, but to also ensure there was accountability for abuses committed by the regime.
After the revolution, two fact finding committees were created: the National Fact-Finding Committee on Abuses committed in recent events (since 17 December 2010), and the National Committee to Investigate Cases of Corruption and Embezzlement. Additionally, Tunisia created the National Committee for the Recovery of Misappropriated Assets Abroad.
Several lawsuits have also been filed before the courts against those involved in corruption and bribery, as well as human rights violations related to the revolution. Pardons were granted to those who had been arrested by the former regime and had been detained for alleged subversive activities including belonging to political associations, protesting, etc. Limited reparations were given to victims of the dictatorship, including martyrs and wounded of the revolution. Additionally, several international treaties for the protection of human rights were ratified.
Despite these steps, it was obvious that the country needed a set of transitional justice mechanisms from truth seeking to institutional reform. But at that time, the concept of transitional justice was little known and was considered an elite topic.
ICTJ was one of the first organizations to organize a conference to introduce the concept of transitional justice in April 2011, hosted in cooperation with Open Society Foundations, the Office of the High Commissioner for Human Rights, the Arab Institute for Human Rights, and the Tunisian League of Defense of Human Rights.
ICTJ went on supporting civil society organizations (CSOs) in their efforts to initiate a transitional justice process, providing guidance and expertise as these groups arranged lobbying and other actions which sought to catalyze political will in favor of an official transitional justice process. Prior to the creation of the Ministry of Human Rights and Transitional Justice, several local CSOs proposed draft laws expressing their vision of how this should happen.
ICTJ participated in several consultations between CSOs and the Ministry of Human Rights and Transitional Justice when it was created in January 2012. They decided to launch a national consultation on transitional justice in order to have a common vision that would incorporate input from victims and human rights activists and reflect their needs. The Tunisian government supported the participatory approach, and the first draft law was presented to the Minister of Human Rights and Transitional Justice in late October 2012.
The drafters of Tunisia’s temporary constitution—deputies of the National Constituent Assembly— drafted the temporary constitution right after the October 2011 elections. As a result of the sensitization and lobbying efforts by civil society organizations, they were aware of the importance of transitional justice as a tool that would help society deal with Tunisia’s past. In fact, Article 24 of that constitution stipulated that the NCA “shall enact an organic law regulating transitional justice, its foundations, and its area of competence.” Thus, there was an obligation to enact a law charting a transitional justice process in Tunisia.
Meanwhile, it was obvious that the ad hoc measures taken right after the revolution—including fact finding committees, and efforts to provide reparations for the martyrs and wounded—did not fully respond to the needs or rights of victims or other citizens. The need for a comprehensive approach to transitional justice became even more pronounced after Tunisia’s national dialogue, discussions that revealed the extent to which Tunisians wanted the truth told about the past, accountability for perpetrators, reparations for victims, and the reform of the country’s institutions, particularly the judiciary.
As a result of extensive consultations across the country, Tunisia’s Transitional Justice Law was ambitious: the law envisaged the creation of a truth commission, a reparations fund and a vetting committee, as well special chambers to investigate and prosecute cases of alleged human rights violations.
One particularly important aspect of the law is that in addition to dealing with human rights violations that are abuses of civil and political rights, it also addresses violations of economic and social rights, which were always at the root of our revolution.
During this time, ICTJ was in the country and provided counsel to those seeking to establish the right combination of transitional justice measures. In its role as part of the support committee to the technical committee, ICTJ advocated for the country to enact an integrated approach to transitional justice. One of the points we emphasized was that a truth commission alone would not be enough: accountability, reparations and the reform of institutions would be essential to see Tunisia’s transition through.
The Truth and Dignity Commission (TDC) will investigate gross and systematic human rights violations committed by the State, or by groups or individuals who acted in State’s name or under its protection. These investigations are conducted in order to reveal the truth during period starting from July 1st 1955 until the issuance of the law.
The commission is an independent body with a four year term that can be renewed once for up to one year, and may work anywhere in the territory. Although Tunisians believe they have a basic idea about what happened during more than 50 years of despotism, there is still a thirst or a desire to know what happened exactly and why it happened, to have an idea about the hidden perpetrators and mechanisms of oppression.
The process of the selection of commissioners followed the promulgation of the law. A committee of selection was created within the National Constituent Assembly and a call for nominations was published in January 2014. The names of the commissioners were announced in early May.
ICTJ continues to play an active role in this process. We prepared a memo on the selection of commissioners and the best practices based on comparative experiences. We also provided the deputies with a communication strategy, which underscored the importance of involvement and the sense of ownership of the process by all Tunisians. We hope that the TDC will be empowered to fulfill the expectations of the Tunisian people, and ICTJ will continue to support the TDC by providing technical assistance and expertise through lessons learned from our fieldwork in other countries.
Since the revolution, several ad hoc reparations measures have been implemented. Compensation was granted to beneficiaries of the general amnesty (political prisoners of Ben Ali regime) and to the families of the martyrs and the wounded of the revolution. Besides pecuniary compensations, other measures were taken such as free medical services, free transportation services and monthly pensions to the wounded and relatives of the martyrs of the revolution.
However, these measures did not respond to the demands of all victims of the dictatorship, because one must prove they are a victim to receive these benefits. This created unequal access to these benefits, as some people who were arrested and tortured have no evidence. The process has also been criticized because many think that the compensation is not proportional to the harm suffered by victims.
That’s why a comprehensive policy of reparations is needed and that’s why a reparations fund was created by the Transitional Justice Law. This means that an evaluation of what has been implemented so far is needed in order to provide the victims with more appropriate solutions.
ICTJ is initiating a discussion on collective reparations as a response to marginalization in Tunisia. As most already know, several regions in Tunisia were intentionally marginalized and oppressed, and these regions were the first to spark the flame of the revolution and to demand their economic and social rights.
As you say, according to the law, in the effort to reveal the truth, the TDC must consider the specific experiences of and violations against the most marginalized in society: the elderly, women, children, those with disabilities, and other vulnerable groups.
According to the law, the commissioners of the TDC must include representation of each gender by at least one third, meaning that at least 5 of the members (if not more) had to be women. This measure is in favor of women’s representation and in compliance with Tunisia’s new constitution based on the principles of equality and parity. This measure will help to ensure that women’s voices will be heard, and will be an incentive for female victims to speak out.
However, ICTJ believes that ensuring women rights through identification as a vulnerable group is not enough. Women in Tunisia suffered from particular kinds of violence, abuse and marginalization that was directed towards them because they were women, including torture, sexual violence, and rape. Also exclusion of women from civil and political life severely impacted their economic situation, as they were prohibited from work and educational opportunities because of their religious convictions.
Much work needs to be done in order to deal with the impact of the past abuses on women. To ensure active participation of women and activists for women’s rights, ICTJ has offered capacity-building activities to make sure this new process is not without monitors and watchdogs. We consider women’s representation in the TDC as a positive first step.
By the time of the dawn of the revolution, several lawsuits had already been filed before the military tribunals for the crimes committed during the revolution, and the civilian courts for the crimes of corruption.
After the revolution however, victims of the previous regime who had suffered harms such as torture, or unlawful imprisonment have waited for the Transitional Justice Law to be passed before they approached the courts. The law provides for the establishment of specialized chambers that would be entrusted to adjudicate cases related to gross violations of human rights as specified in international agreements ratified by Tunisia.
I should also mention that during the sessions we held in the National Constituent Assembly, ICTJ strongly urged the deputies not to hand over jurisdiction for cases involving severe human rights violations to military tribunals, reminding the authorities that such cases should be dealt through civilian criminal jurisdiction.
A committee of reflection about these chambers was created in within the Ministry of Human Rights and Transitional Justice and ICTJ will provide technical assistance to the members of this committee through our experts in criminal justice.
Tunisian youth played a huge role prior to and since the fall of Ben Ali. In fact, Tunisian young people helped spark the revolution, and helped to see it through, especially in their use of social media, most notably of Facebook. They were the first groups of people to take to the streets to claim freedom from the old regime and demand that the country take a new direction. The country saw that what the Tunisian elite and opponents of the regime could not achieve during prior decades was achieved by young people. These active young people played also a role right after the revolution—not only for the establishment of a National Constituent Assembly, but also for the organization of the first free and democratic elections in Tunisia.
Youth still monitor the process of democratic transition through their activism in civil society organizations, but also via social media and blogs. We expect that their active role will continue as the country embarks on concrete transitional mechanisms.
I think that transitional justice as a whole is still a discussion that is limited to people of a certain age. However if you look deeply into Tunisian society, you will find youth demanding truth regarding what happened in the past, accountability for the crimes that took place during the revolution and before, condemning impunity, and asking for the reform of the country’s institutions. In other words, they are talking about transitional justice.
ICTJ, through its activities in Tunisia, is currently examining how the country’s new transitional justice efforts can engage youth in their work.
ICTJ will continue to support stakeholders in the Tunisia’s efforts to address its past of repression. We will advocate for an integrated and participatory process with a focus on the TDC as that institution begins its work.
Next week in Tunis the TDC will be formally launched, and ICTJ will be there as an independent expert organization in order to provide training sessions for the commissioners. The TDC will have six months to prepare its bylaws, so we are preparing our assistance to the Commission during this technical and critical phase.
We will also support civil society organizations to ensure that they can be real watchdogs of the process. We are in the process of organizing work around the specialized chambers and will continue to prioritize building relationships with local media as the transitional justice process unfolds.
Source: Human Rights Watch
Arab League: Improve Regional Court Proposal
Beirut) – A proposed Arab League regional court for human rights would deny victims the right to file complaints, 27 regional and international organizations including Human Rights Watch said today in a statement of concern.
The current draft statute for the court would not permit individuals whose rights have been violated to file complaints directly to the court, and the court’s proposed rules on selection of judges fall short of international standards, the groups said.
“This draft deliberately makes impossible the most important purposes of a human rights court – insuring individuals access to justice and imposing accountability on abusive governments,” saidNadim Houry, deputy Middle East and North Africa director. “The Arab world is in dire need of effective institutions that protect human rights, not another regional institution that merely accommodates the region’s rulers.”
The Arab League’s secretary general, Nabil Al-Arabi, announced at a conference in Bahrain on May 25, 2014, that the draft would be submitted for the approval of the League’s Ministerial Council in its next meeting, expected in September.
The organizations urged the Arab League member states to amend the draft statute to bring it in line with international standards and to allow for appropriate and meaningful consultation with nongovernmental organizations before adopting the statute. The draft provision denying individuals the right to file complaints stands in contrast to other regional human rights courts, such as the European Court of Human Rights and the African Court, which allow such complaints.
Highlights from the Conference on «Africans and Hague Justice: Realities and Perceptions of the International Criminal Court in Africa»
The Hague University of Applied Sciences and the School of Human Rights Research cooperated with the Netherlands Association of African Studies to host a fascinating, interdisciplinary conference exploring the deterioration of Africa’s relationship with the International Criminal Court.
Professor Makau Mutua delivered a keynote lecture titled “Africans and the ICC: Hypocrisy, Impunity, and Perversion” which explained the ironic situation in which the ICC is now being accused by African leaders of committing the same crimes as is its mandate to prosecute. He gave an overview of the historical perspective that international law was applied to maintain Northern hegemony and control over African natural resources resulting in the trauma of slavery, colonialism, and the Cold War. He outlined the dilemmas resulting from the phenomenon of autocracy and hypocrisy within African leadership, pursuing human rights language when its suits them but also engaging in critical narratives against the international system to secure self- interests. Nevertheless, the ICC is gravely marked by the appearance of selective prosecutions and raced-based justice. Further, he argued that the AU is satisfied with the ICC as long as it only prosecutes Africans who are not heads of state, hence it is viewed as legitimate when pursuing non-state actors. He emphasized the importance of distinguishing the African Union from African society, as there was no monolithic African view on the ICC.
The conference included papers addressing alternative dispute resolution mechanisms which seek to offer restorative justice, such as the “Judia System” as described by Professor Mohamed Abdelsalam Babiker. He explained the advantages of greater accessibility, transparency, and opportunity for participation and control by victims in the proceedings and award of compensation. Nevertheless, one may argue that there is a need to ensure a means by which to ensure gender equality in customary proceedings and this may require incorporating international standards.
Augustine Hungwe characterized the ICC as suffering from an “institutional superiority complex” in which it appears to “talk down “ to Africa by providing unsolicited lectures on international law to African leaders, several of whom actually have Phds in Law. He stated that the ICC seemed preoccupied with law when the solution to the problem will actually not be a legal one. This was complemented by Keynote speaker Solomon Ayele Dersso who lamented the ICC’s “isolationism” which appears to be unconcerned with local peace processes, thereby resulting in clashes due to lack of proper timing and sequence. At the same time he recognized the lack of credible domestic legal systems in several African nations.
Matthew Kane explained the lack of accessibility of ICC judgments and gave suggestions as to how to improve their quality, including summarizing key facts and findings of law, providing the human story, recognizing background historical events and larger conflicts, and reducing the length of judgments.
Associate Professor Charles Jalloh gave a stirring “keynote via Skype” in which he underscored the dysfunctional interplay between the ICC and the Security Council due the latter’s selective referrals, resulting in significant legitimacy costs. He highlighted the political nature of the Security Council and called for its reform, as well as potential for engagement by the General Assembly. He also called upon the Security Council to improve enforcement for the ICC pursuant to Chapter VII.
Professor Kamari Maxine Clarke gave a third keynote lecture addressing “Legal Encapsulation and the Anti-ICC Pushback” in which she delineated the ICC as pursuing a narrow definition of justice (to be equated with law but self-characterized as imbued with moral authority) which seeks to help victims and save lives via deterrence. Nonetheless, the ICC has experienced problems in its management of victims and witnesses calling into question its legitimacy. The ICC’s rhetoric of “legal encapsulation” is countered by African “politics of affect” which play on the history of colonialism and perception of global marginality. One may argue that the ICC prosecutor is countering the counter by emphasizing its role in vindicating women and children subjected to sexual violence, thereby providing another version of affect.
Corinna Frey explained that there is no general African opposition to the ICC, that opposition depends on context. She outlined how some governments (eg Uganda, DRC, and Ivory Coast) benefitted from ICC investigations because they addressed rebel groups, whereas the Kenyan case is the first in which both sides to a conflict are targeted for prosecution. In her opinion, the legitimacy challenges arise from the practice of victor’s justice.
Dorothy Makaza presented the potential for a regional African supranational criminal jurisdiction, discussing the proposals for the protocol extending the mandate of the African Court of Justice and Human Rights (with 15 additional crimes, including piracy, terrorism, trafficking in persons, unconstitutional changes of government, and corruption.) She noted that the African protocol seeks to grant heads of state immunity so there is concern. Nevertheless, she supported the idea of a regional body as enjoying greater legitimacy than the ICC due to greater access, participation, and proximity to local communities. One is left with the concern that there is a need to significantly improve national justice systems before embarking on expanding the regional level, otherwise it is likely that the regional court will be unable to enforce its orders.
The final keynote was provided by Shamiso Mbizvo on behalf of the Office of the Prosecutor (ICC) who emphasized the inclusion of Africans as judges and staff within the ICC, as well as the contact with African victims who insisted that the ICC was the most legitimate institution they could rely on. She stated that critiques about selective prosecution should be directed at the Security Council. She also pointed out the failure of several states to sign and ratify the Rome Statute or to conduct genuine national criminal proceedings. In contrast, she also noted the efforts of other states, such as Colombia, to pursue national prosecutions while consulting with the ICC, thereby providing good examples of the potential for complementarity initiatives.
The conference also included an exhibit of African political cartoons addressing the conflicts between African leaders and the ICC; as well as a stunning photo exhibit titled “Rwanda 20 Years” in which photographers-Pieter Hugo and Lana Mesic- captured Rwandan perpetrators and survivors pursuing reconciliation. Both exhibits were designed by Creative Court.
Congratulations to Froukje Krijtenburg, Eefje de Volder, Abel Knottnernus, Ingrid Roestenburg, and Jos Walenkamp for their innovative vision!
Source: The Guardian
Secret terror trial is threat to open justice, human rights campaigners warn
Trial of two men charged with terrorism offences could be heard entirely behind closed doors for first time in modern UK history
A major criminal trial involving two men charged with serious terrorism offences could be held entirely in secret for the first time in modern British legal history.
Lawyers contesting the decision at the court of appeal on Wednesday said the plan amounted to “an unprecedented departure from the principles of open justice” and was “inconsistent with democracy and the rule of law”.
Until now it has not even been possible to report the existence of the forthcoming trial against the two men, known only as AB and CD. But three appeal court judges lifted a gagging order allowing reporting of a hearing challenging the plans.
The trial would be the first criminal case to be held behind closed doors for hundreds of years. It involves two defendants who are charged with terrorism but whose names are being withheld from the public. Unless the appeal succeeds, journalists will be banned from being present in court to report the proceedings on 16 June or the outcome of the trial.
The men will be tried by a jury but no report of the case will be made public and no members of the media or public will be given access to the court.
Shami Chakrabati, director of Liberty, condemned the secrecy. She said: “Transparency isn’t an optional luxury in the justice system – it’s key to ensuring fairness and protecting the rule of law.
“This case is a worrying high water mark for secrecy in our courts – extensive restrictions set without robust reasons or a time limit. There must be clearer explanations before the door is shut on press and public.”
The Guardian and other media organisations made a last-ditch challenge to the secrecy surrounding the terror trial at the court of appeal. Anthony Hudson, representing the media, said the decision to withhold the identities of the men and carry out the entire proceedings in private was a legal departure.
The court was told that the crown has sought and obtained legal orders on the grounds of national security, arguing that if the trial were held in public the prosecution might not proceed with the case.
Mari Reid, unit head of the counter-terrorism team in the special crime and counter-terrorism division of the Crown Prosecution Service, gave evidence during the crown application that there was a “serious possibility that the trial may not be able to go ahead” if it had to be held in public.
Counsel for the crown detailed evidence to back its case in private with the three court of appeal judges: Lord Justice Gross, Mr Justice Simon and Mr Justice Burnett.
Appealing against orders made by Mr Justice Nicol at an earlier hearing last month, Hudson said the secrecy around the trial was wholly unprecedented. He said: “The crown has sought and obtained unprecedented orders” and the trial “should take place entirely in private”.
He added: “No order has ever been made which requires an entire criminal trial to be in private with the media excluded and the defendants unnamed. We submit that the orders made involve such a significant departure from the principle of open justice that they are inconsistent with the rule of law and democratic accountability.”
He said that national security could not be pursued without regard to the values of the society it was seeking to protect.
Richard Whittam, QC, for the crown, told the court the case involved clearly exceptional circumstances which had led to the “exceptional procedures” that had been approved by Mr Justice Nicol on 19 May.
He said while the crown entirely supported open justice, the exceptional nature of the case made it necessary for the unprecedented procedures to be put in place.
“It is quite clear that there is jurisdiction for the defendants to be anonymous and there is jurisdiction for a court to sit in private. Whether or not it is appropriate to do so is evidence-dependent,” he said.
But the evidence on which the crown relied to argue for the secret trial could not be presented in open court, he added. Whittam instead presented the evidence in private to the appeal court judges during part of the hearing on Wednesday.
The court heard that AB and CD were arrested in a high-profile police operation last year and had been charged with serious terrorism offences.
AB is charged with engaging in conduct in preparation of terrorist acts between February 2012 and October 2013. He is further charged with CD of being in possession of of documents or records containing information of the kind likely to be used by a person committing or preparing an act of terrorism.
This relates to the pair’s alleged possession of a document entitled “Bombmaking”. CD is also charged with possession of an improperly obtained UK passport.
Lord Justice Gross said he would give the court’s decision on the appeal by the media in a few days and a full judgment at a later date.
The trial of AB and CD is due to open in London on 16 June.