I want to suggest that my reference to the problems of individualization and instrumentalization specific to the processes of the TDCT should not obscure its transformative potential in the establishment of the groundwork for the transitional justice and democracy-building in Tunisia. My criticism therefore should be read as an opportunity to rationally suggest that the work of TDCT lies in its embodiment of a negotiated political compromise and its promotion of social and political reconciliation, rather than achieving it. As, Archbishop Desmond Tutu, Former President of the South African TRC, stressed, “reconciliation is a process and not an event”. (UNDP, Jun 9, 2014)
The Truth and Dignity Commission of Tunisia (TDCT) has captured regional and international attention for a number of reasons. At the international level, the TDCT is expected to set the example of how future Truth and Reconciliation Commissions (TRCs) should be organized in other countries of the so-called Arab Spring such as Egypt, Libya, and Yemen. Indeed, its ongoing public hearings bring to the local public scene the complex issue of reconciliation, seen as the bedrock on which the post-revolution project of nation and democracy-building is based. These hearings have also been subject to a heated debate between various political and public fractions that either support the very idea of the TDCT or dismiss altogether as a public show.
Beyond these Manichean readings, I argue for a critical appreciation of the TDCT which underlines its hybrid dimension as a transitional justice commission that incorporates multiple forms of transitional justice logic such as that of Nuremberg and of the Truth and Reconciliation Commission of South Africa (TRCSA). I suggest that we think of the TDCT less as the impetus to a genuine political reform than as a result of a political compromise. To be clear, this article is not intended as a critique of the Tunisian TDC. Ultimately, what it offers is a basic reading of the complex ideology which structures the TDCT work in order to place it within a historical continuum and discuss its weaknesses and contributions to the project of reconciliation.
Following the first two public hearings that took place on 17 and 18 November, this first article on the complex ideology of the TDCT addresses the importance and limits of the victim-centered approach. The essay is organized in three parts. Part one deals with the definitions that structured the work of public hearing sessions of victims of human rights violations under the regimes of Bourguiba and Ben Ali. The last two parts offer a critical reading that, while it highlights the importance of these hearings to the very idea of transitional justice, suggests that the centrality of individualization and instrumentalization of the voices of victims are among the ideological and structural limits that undermine its transformative potential.
The Victim-centered Approach: A Basic Definition
The term ‘victim-centered’ has been used to describe the transitional justice process or mechanism that places the victim at its center. Amnesty International links the victim-centered approach to the fundamental right to truth:
The right to truth requires states to provide information on: the causes of the events that have led to a person having become victim of a human rights violation; the reasons, circumstances and conditions of the violations; the progress and results of the investigation; the identity of perpetrators (both subordinates and their superiors); and, in the event of death or enforced disappearance, the fate and whereabouts of the victims. Both in its individual and collective dimensions, the right to truth is an inalienable right, which stands alone. It should be considered as a non-derogable right and should not be subject to limitations. Truth, Justice and Reparation.
The emphasis here is placed on the individual as well as the collective dimensions of the work of the truth commissions. Indeed, it contributes to fulfill the right of the victims and their family members to know the facts and circumstances in which gross violations of human rights took place as well as the right of society to be informed about its own history. Former political prisoner Sami Brahem echoed this call for accountability during his public hearing as a victim of political persecution and torture when he emphasized “I just call on the torturers to confess and talk and I am prepared to forgive them.”
Simon Robins underlines the need to further discuss this understanding when he points out, “This does not imply that all goals of the process are made subservient to the agenda of victims, but that ‘an awareness of the centrality of victims/survivors and their needs to the whole process’ drives it” (“Towards Victim-Centered Transitional Justice” 77). He points out, for instance, that enhancing the quality of this approach to the transitional justice process requires challenging “external and prescriptive approaches, counters elite control of the transitional justice agenda and optimizes the addressing of victims’ needs” (ibid.). A victim-centered approach needs to insure that victims’ needs are addressed by means of a broad consultation with victims or for victims and their representatives to be engaged at all levels of planning and implementation.
Between Nuremberg and TRCSA: The Hybrid Logic of the TDCT
The deliberate decision to start with testimonies of victims during the first public hearings reflects the importance of victim-centered approach to the logic of the TDCT. Still, I want to suggest that the Tunisian TDC operates within a hybrid logic that incorporates multiple approaches central to the mechanisms of Truth and Reconciliation Commissions as that of Nuremberg and of South African TRC.
The Nuremberg logic refers, according to Mahmood Mamdani, to the unilateral process by which the victorious after the WWII decided on the fate of the vanquished. The Nuremberg trials stripped the understanding of transitional justice of its productive dimension embedded in the notion of social and political reconstruction and placed criminal justice at its center. The mechanisms of TRC became a political opportunity to continue war with other means. Indeed, these trials incorporated the flawed logic of restorative justice that victims and perpetuators no longer had to live together. As such, more than three millions Germans who resided in East Europe were forced to migrate to their “homeland” and for the European Jews to be encouraged to move to the newly established artificial state of Israel. Not only the victors decided for appointment of the judges and the prosecutor, they made sure that the trails symbolized the nascent new world order. The Nuremberg version of justice incorporated several lingering problems with the version of transitional justice secured by the victors. What is important to highlight is the understanding of Nuremberg as a “performative spectacle”, in Mamdani’s words, links its polemical public reception to subsequent TRCs around the world. Performativity here refers to Judith Butler’s Foucauldian argument that it is speech acts such as testimonies that define the identity of the victims and of the logic of the Nuremberg trials. To summarize, the importance of criminal justice and political branding to the Nuremberg logic of transitional justice links it to the TDCT process. Indeed, the emphasis on retributive justice and the performative fetishization of the process of transitional justice in Tunisia as the model to follow mobilize the relentless call for criminal justice as a sine qua non for the achievement of the objectives of the TDCT and the incessant branding of the its mechanisms as another example of ‘Tunisia showing Arab nations the way forward’. This idea of performative branding is clearly identified in the statement of Sihem Bensedrine, chief of the truth and dignity commission, when she declared the sessions would be “a historic event that will be taught to our grandchildren and enhance the image of Tunisia in the world as a model of tolerance”(The Guardian, 17 November 2016).
Furthermore, the logic of TRC of South Africa which required the victims of apartheid-era violence to testify in public hearings sessions and the perpetrators to offer a full disclosure of their gross violations of human rights is intermeshed with the logic of the Tunisian TDC. While the TRCSA sought to afford apartheid victims the opportunity to restore their dignity and to uncover the causes and motives that led to the experiences of physical abuse and torture and accordingly to be compensated morally and financially, it also endeavored to hold the perpetrators accountable for their crimes. The South African TRC moved beyond the Nuremberg restrictive definition of transition justice as criminal justice to offer the amnesty for those perpetrators who disclosed their participation in acts of gross violations of human rights. However, and similarly to the Nuremberg trials, the TRCSA did not tackle the political (i.e. state-based) as well the economic structures that enabled these violations. As Mamdani rightly points out, the forced removals and the pass laws were state-based forms of structural violations that did not necessarily count towards the established definition of human rights violations as exclusively physical. Furthermore, he underlines that the TRCSA ignored the importance of holding the beneficiaries of structural apartheid accountable as an important dimension of the process of restorative justice. The beneficiaries here refer to those who benefited from the enforcement of apartheid laws that led to gross violations of economic and social types. For the TDC of Tunisia, the first public hearing sessions, which were held last week to broadcast the testimonies from the perspectives of victims of gross human rights violations, will be followed other public hearings on 17 December to allow perpetuators of these violations to present public apologies. Again, and similarly to the proceedings of the TRC of South Africa, the responsibility of the beneficiaries from the legal and economic structures implemented by the perpetuators are completely obscured. I suggest that this ideological blindspot is the Achilles’ heel of the TDCT logic which would ultimately undermine its efforts toward transitional justice.
I suggest that the Tunisian TDC carries a hybrid logic because it binds together several productive forms of transitional justice logic that were central to the works of the Nuremberg trials and the TRC of South Africa. The TDCT is seen as a symbolic and performative spectacle that mobilizes the continued fetishization of Tunisia as “the Arab spring’s sole democratic success” (Jared Malsin, Time, 18 December 2015). The emphasis on “putting the thieves on trial” (See Anouar Jamaoui’s article entitled “Tunisia: The dispute over the economic reconciliation bill”) highlights the importance of criminal justice to the public expectations of the mechanisms of the TDCT. The prosecution of suspected perpetrators after exhaustive investigations of past violations appears an urgent demand and as such it mirrors the public call for criminal justice in the wake of Nuremberg trials.
The hybrid ideology of the TDC of Tunisia moves beyond a biased emphasis on retributive justice towards the incorporation of other forms of justice such as procedural, distributive, and restorative. The TDCT mobilize a form of procedural justice as it functions as an independent commission that not only employs, similarly to the SATRC, non-judicial mechanisms, but also judicial processes to investigate human rights and violations and ensure restorative justice in the form of public acknowledgment of past victims and financial compensation. Also, the concern with fairness that has shaped the ideology of the Tunisian TDC mobilize the centrality of distributive justice through the use of a victim-centered approach that ensures the realization of objectives of truth-seeking, vetting, dignity restoration, and moral and economic reparations.
The problems with victim-based approach: Issues of Individualization and Instrumentalization
Despite the productive dimension of its hybrid logic, the ideology of the TDC of Tunisia remains intricate as the concepts of truth and accountability remain vaguely defined, especially in the wake of the growing importance given to the TDCT victim-based approach. For example, the e-library section of the Tunisian TDC (also called IVD) website remains extremely underdeveloped and suffers from a lack of references to its legal background. The only available legal documents in Arabic refer mainly to administrative and procedural frameworks and remain vaguely informative. Indeed, the Article 5 on the topic of Reconciliation is extremely problematic and enigmatic. The epistemological weaknesses evidently undermine the efforts of the TDCT, but also they especially underscore a potentially problematic understanding and practice of the victim-based approach.
Individualization and the Question of Truth
Amnesty International notes that “as commissions of inquiry, truth commissions have the task of investigating and publicizing facts, particularly facts which have hitherto been hidden or misrepresented, rather than uncovering the ‘truth’ in an historical or philosophical sense.” (Truth, Justice and Reparation 1). Despite this clarification, the working definition of truth in the first public hearings that were dedicated to the testimonies of victims and their family members mobilize the claim that the truth being uncovered is historical and definitive.
I suggest that the focus on the individual within the proceedings of a victim-centered approach (as a bottom-up approach) risks of normalizing the truth as singled-faceted, stable, and retrievable. Matt James reports, “Victim-centered truth commissions eschew the state-driven or expert-directed focus sometimes observed when an elite team is charged with finding answers to particular questions posed, or indeed legally specified, by a transitional regime or intervening international body” (“A Carnival of Truth?” 183). While the TDCT organizes the definition of truth to be linked mostly to the factual embedded in the verbal testimonies of victims of gross violations and their family members, the Sierra Leone TRC experimented with other forms of victim-based approach by including For instance, Mamdani argues that the TRC of South African was influenced by the Nuremberg logic notably in its individualization of the victimhood of those who suffered human rights violations as well as the individualization of the responsibility of the perpetrator. The problem with this individualization of truth is that it obscures the possible understanding of human rights violations as systematic and structural, rather than individual, forms of oppression and abuse. In other words, what it is really at stake in the centrality of transitional justice to the project of democracy-building is the acknowledgement of the hybrid ideology behind psychological abuse, torture, and killings as emanating from a bottom-up and top-down mechanism of power control and violence. What made grave human rights violations under the totalitarian regimes of Bourguiba and Ben Ali is the wide network of corrupt statesmen and sadist policemen, but also, and more importantly, the despotic political and cultural structures that have rationalized these practices of police brutality and sadism.
Instrumentalization of the Voices of Victims and the Problem of Accountability
The highly politicized proceedings of the TDC of Tunisia risk instrumentalizing its transformative potential of democracy-building for a restrictive outcome of criminal justice. For instance, the Nuremberg trials, as Ruti Teitel observes, organized Holocaust survivor testimony according to its level of relevancy in securing the criminal convictions of the perpetrators. (‘Transitional Justice Genealogy” 65). This question of relevancy of testimonials is at the heart of my criticism of the weaknesses of victim-based approach. I want to point out that the selection and promotion of speakers during public hearings tend to be designed chiefly to reflect interests and questions of the truth commission personnel rather the victims’ needs per se. It will of great interest to monitor how the TDCT will negotiate the hearings regarding experiences of politically motivated rape against women or other forms of sexual and physical abuse against children. In other words, to what extent will the TDCT reflect a conservative or a dynamic understanding of what should public or private during the hearings.
The Tunisian TDC will be praised and it will be blamed as it has been the case with previous renewed Truth and Reconciliation Commission worldwide. The high stakes that the TDCT carry within an ongoing unstable political and economic local and regional contexts insure that the established ideals of justice and social and political restoration will be scrutinized according to one’s subjective view of what the post-revolution Tunisia should be like. My use of the idea of spectacle in the article highlights –in contrast with Guy Debord’s use of the concept- the staging of implicit political, social, and cultural tensions that have been central and productive to the discussion of who we are and what we should be prior to the realization of the objectives of TDC of Tunisia.
I want to suggest also that my reference to the problems of individualization and instrumentalization of the processes and outcomes of the TDCT should not obscure its exceptional position in the establishment of the groundwork for the transitional justice and democracy-building in Tunisia. My criticism therefore should be viewed as an opportunity to rationally suggest that the work of TDCT lies in its embodiment of a negotiated political compromise and its promotion of social and political reconciliation, rather than achieving it. As, Archbishop Desmond Tutu, Former President of the South African TRC, stressed, “reconciliation is a process and not an event” (UNDP, Jun 9, 2014)
- Amnesty International. Truth, Justice and Reparation: Establishing an Effective Truth Commission (2007).
- Jamaoui, Anouar. “Tunisia: The dispute over the economic reconciliation bill”. Nawaat. 1 November 2015.
- James, Matt. “A Carnival of Truth? Knowledge, Ignorance and the Canadian Truth and Reconciliation Commission”. The International Journal of Transitional Justice, 6.2 (2012): 182–204.
- Mamdani, Mahmood. “The Logic of Nuremberg.” London Review of Books, 35.21 (2013): 33-34. Web.
- Malsin, Jared. “Why the Arab Spring Has Not Led to Disaster in Tunisia.” Time, 18 December 2015.
- Robins, Simon. “Towards Victim-Centered Transitional Justice: Understanding the Disappeared in Post-Conflict Nepal”. The International Journal of Transitional Justice 5.1 (2011): 75-98. Web.
- Teitel, Ruti. “Transitional Justice Genealogy”. Harvard Human Rights Journal 16 (2003): 69-94. Web.
- United Nations Development Programme (UNDP). Tunisia launches Truth and Dignity Commission. 9 June 2014.
The section on the Nuremberg trials is horribly uninformed….
“As such, more than three millions Germans who resided in East Europe were forced to migrate to their “homeland” and for the European Jews to be encouraged to move to the newly established artificial state of Israel.”
Israel didn’t exist in 1945 or 1946 (the year that the trials ended).