Transitional Justice in the Middle East - Working Group I

On February 15-16, 2014, Regional and international experts gathered for the inaugural meeting of the CIRS Transitional Justice in the Middle East research initiative. While much of the scholarship on transitional justice has been conducted in other regions of the globe, recent political transitions in the region have invigorated studies on the manifestation and application of transitional justice mechanisms in the Middle East. Various topics ranging from the theoretical underpinnings and scope of transitional justice to specific case-studies of Middle Eastern experiences related to reconciliation, and restorative and retributive justice were discussed by the multi-disciplinary working group participants.

In beginning the discussion on transitional justice in the Middle East, participants drew on past and current experiences of countries from around the globe in order to identify the most salient markers studied in the field. Studying transitional justice in a comparative perspective however, has revealed that assessing its impact is not a seamless activity as the process itself continues to have shifting goals. Within transitional justice, there is a myriad of objectives related to retributive justice, deterrence, vindication of victims, and reconciliation that both practitioners and academics discuss and refer to. However, each of these benchmarks remains elusive with regards to whom they address, what form or shape they take, and the mechanisms and institutions that are used to address them. For instance with regards to the vindication of victims, the diversity in types of victims and the fact that the requirements of victims change over time, further complicate the objectives.

Moreover, it is not clear how practitioners and scholars define victim-centered justice. At times, and particularly in Islamic law and teachings, there exists a structural tension between forgiveness and societal reconciliation and the private rights of retribution for the individual victim. A victim-centric approach would more actively advocate for the individual’s right to justice. In addition, the scope of transitional justice is also a contested issue. While in the past it has primarily been about accountability for gross violations to human rights – particularly in relation to bodily harm – it has expanded its remit and is increasingly connected to development policy, and economic, social and cultural rights. This is particularly salient in the context of the recent uprisings in the Middle East, where criminal liability for monetary and political corruption has been put on the transitional justice agenda.

Part of the difficulty in defining goals and assessing impact lies in the issue of local versus international ownership over transitional justice processes. Since the 1990s, mechanisms and processes of transitional justice have been heavily internationally driven and funded. Thus, assessing where the demand for various goals stems from and the level of local ownership are vital when discussing case-studies of transitional justice and their respective impact. Concomitantly, the local power dynamics that are at play in articulating demands also provide insight into why particular actors advocate for certain temporal boundaries of transitional justice as well as various mechanisms and institutional designs to deal with past injustices. Political parties and actors in Tunisia that have borne the brunt of state repression since the state’s independence, particularly Ennahda, have advocated for longer temporal boundaries of transitional justice that predate Ben Ali’s regime and extend back to the founding of the Tunisian state in 1956. In opting for a longer temporal boundary of transitional justice, it is evident that Ennahda seeks to “deconstruct modernist narratives” of both Ben Ali and Bourguiba and to delegitimize the older political order. Other groups, such as women that have been victims of state repression, have sought to correct historical narratives of Tunisia’s state feminism and perceptions of women’s rights in Tunisia as being the most advanced in the Arab world. Ennahda women and women affiliated with Ennahda supporters are actively seeking in this transitory phase to provide accurate narratives about what the status was for all women in Ben Ali’s Tunisia by speaking out about gender injustices.

Memories and narratives about the past are an integral part of a society’s transition post-conflict. There are more formal processes of truth telling and dealing with the past such as truth and reconciliation commissions and trials and tribunals; many of these visible processes however, have been adopted by the state. Other informal processes involve civil society, cultural production and non-recorded narratives. In dealing with the past, participants specifically discussed martyrdom in North Africa and its role in transitional periods. Martyrs are employed into state-building efforts and the political agendas of political actors, exemplifying how the past serves an agenda for the future; the FLN in Algeria, for instance, based a lot of its political strategies on mujahedeen or martyrs. Martyrs have also been deployed by citizens of the state, as is the case in Tunisia, who have advocated for communal reparations for those that have died during the protests and have simultaneously promoted a distributary vision of the state as seen in the slogan Haq Al-Thawra or “right of the revolution”.

In various post-atrocity transitions around the world, constitutional development has been intertwined with the process of transitional justice. In dealing with past grievances and planning for the future, constitutions provide a method of creating, shaping and allocating power. Working group participants discussed the successful example of constitutional development in post-apartheid South Africa and the particular sequencing of the process. Dealing with injustices of the past presumes that the transitional justice process is a selective process that emphasizes certain problems and actors to the exclusion of others. While advantaging groups who were previously repressed, transitional justice can also create obstacles to visiting certain issues by marginalizing them during the initial process. They can also be damaging by reifying particular solutions which become problematic for society in the long-run. Participants further questioned whether there is a trade-off between the timing and depth of transitional justice. In the South African example, a consociational government drafted the interim constitution. Contrasted to the current situation in Libya, where the presence of militias has created a “shallow” form of justice and where political isolation of previous regime members has taken worse form than de-Baathification in Iraq. Participants further discussed how structural constraints related to the ancien regime can also pose challenges to institutional development and the promotion of human rights – two areas that are closely linked with transitional justice processes. Where the security sector has been implicated in human rights violations and lacks accountability, security sector reform is a focal point of institutional development. In Egypt, the continued dominant role of the army has hindered efforts of security sector reform –reform that is particularly concerned with citizen and human security rather than that of the ruling powers. Although transitional justice promotes the development of constitutions and institutional reform, whether it creates systems that align with values that are beneficial to societies in the long-run, depends on a multitude of vital factors.

While discussing constitutional development and transition, participants noted the faulty assumption that transitional justice is linked to democratization and that the end point to the transition is in the form of a liberal democratic system. In fact, in some cases such as the monarchies of Bahrain and Morocco, transitional justice mechanisms have been implemented without the preface of political transition. Evidently in these cases, democratization is not the end goal, but rather, the implementation of these mechanisms may enable monarchs to gain political capital both locally and internationally. In the absence of political transition the efficacy of truth commissions and the commissions of inquiry in Morocco and Bahrain, respectively, were discussed. In addition to the implementation of transitional justice mechanisms in countries without political change, participants also discussed plans for transitional justice in cases of ongoing conflict – specifically, in Syria where members of the opposition have already drafted detailed plans for transitional justice.

Participants and Discussants:

  • Rogaia Abusharaf, Georgetown University School of Foreign Service in Qatar
  • Mohamed Arafa, Alexandria University
  • Omar Ashour, University of Exeter
  • Zahra Babar, CIRS – Georgetown University School of Foreign Service in Qatar
  • Mietek Boduszynski, Pomona College
  • Matt Buehler, CIRS – Georgetown University School of Foreign Service in Qatar
  • Thomas DeGeorges, American University of Sharjah
  • Mohammad Fadel, University of Toronto
  • Elham Fakhro, Georgetown University School of Foreign Service in Qatar
  • Doris H. Gray, Al Akhawayn University
  • Sune Haugbølle, Roskilde University
  • Mehran Kamrava, CIRS – Georgetown University School of Foreign Service in Qatar
  • Christopher Lamont, University of Groningen
  • Clark Lombardi, University of Washington
  • Suzi Mirgani, CIRS – Georgetown University School of Foreign Service in Qatar
  • Dwaa Osman, CIRS – Georgetown University School of Foreign Service in Qatar
  • Chandra Lekha Sriram, University of East London
  • Ibrahim Sharqieh, Brookings Doha Center
  • Susan E. Waltz, University of Michigan
  • Elizabeth Wanucha, CIRS – Georgetown University School of Foreign Service in Qatar

Article by Dwaa Osman, Research Analyst at CIRS