Tunisia: UN expert calls for human rights to be at the heart of a transitional justice process owned by the entire society
16 November 2012
Ladies and Gentlemen,
My visit came at a critical juncture, not only regarding the country’s efforts to move from a regime marred by repression and corruption to a society based on the rule of law, but also specifically in the midst of a constitutional drafting process and the work towards the adoption of a law on transitional justice.
I would like to thank the Government of Tunisia for the invitation and the cooperation extended to me. I have visited Tunis, Sidi Bouzid, Gafsa and Redeyef and had the opportunity to meet with Government and local officials, representatives of the legislative and judicial branches, law enforcement officials, a broad range of civil society actors and victims of past massive violations, the UN and diplomatic delegations. I am grateful to the Office of the UN High Commissioner for Human Rights in Tunis for providing logistical support and making it possible for us to hold these meetings. I would like to thank everyone who took the time to meet with me and shared their valuable and important experiences.
Transitional justice is not a special kind of justice applied in times of transition. Rather, the measures of truth-seeking, justice initiatives, reparation and guarantees of non-recurrence seek to redress massive human rights violations and to provide a trustworthy and legitimate ground for the country to move on. It is only when these measures are applied in a manner that they complement and do not exclude each other that they are likely to strengthen the rule of law based on firm human rights foundations. The implementation of the set of measures serves ultimately also reconciliation, and social integration.
I have conducted the visit with this as a framework. I acknowledge the efforts of the Government to implement transitional justice measures, especially in the areas of truth and reparations. I would like to offer some preliminary observations in relations to these measures:
I commend the important efforts undertaken by the National Fact-Finding Commission on Abuses Committed from 17 December 2010 to the End of its Mandate and the National Commission of Investigation on Corruption and Embezzlement. From the consultations I held, it seems to me, however, that the findings of their reports have not reached broad sectors of society. To be part of truth-seeking efforts that include the entire Tunisian society, those reports need to be made more easily accessible to the general public.
Efforts to provide compensation to victims falling under the mandate of the National Fact-Finding Commission in the form of monetary compensation, some health benefits, and restoring some people to former jobs have also been undertaken. Furthermore, some other victims also seem to have had the possibility to reintegrate in former professions.
There appears to be increasing awareness, in particular in the context of the constitution-drafting process, of the importance to put in place institutions and procedures that would prevent the recurrence of the massive violations which have taken place in the past. Yet, little progress can be observed in the area of prosecutions, or of the crucial areas of institutional reform of the judiciary and the security sector, including vetting, essential to guarantee the non-recurrence of violations.
Of course, I cannot omit the establishment of the Ministry of Human Rights and Transitional Justice, the first such ministry ever. The technical committee, facilitated by this Ministry, has produced a draft law on transitional justice submitted for consideration by the National Constituent Assembly. I will address various aspects of this law in what follows, but to start off, I would like to commend the Ministry for the efforts to create a legal framework that refers to the four elements of transitional justice, namely, truth, justice, reparations, and guarantees of non-recurrence. This provides for the possibility of adopting a more systematic approach to transitional justice. It is also commendable that the draft shows awareness about the importance of addressing the disparities among regions, including with regard to individual economic and social rights.
The initiative of the Technical Committee to conduct consultations across the country is noteworthy. However, the design of these consultations appears to have fallen short of including all sectors of society in an efficient manner. The voices of women, so crucial in the deliberations of a country on how to move ahead, were not sufficiently represented in this undertaking. Furthermore, in my conversations outside the capital, it became apparent that the consultations appear in themselves not to have been able to bridge the gap between the urban coast and the interior of the country. Despite their ambitions and their sophisticated structure, the consultation process shows that consultation should not be conceived of in terms of one off instances but of ongoing processes which show the receptivity of institutions to the voice of the citizens.
I would also like to commend the efforts of many civil society organizations in Tunisia. As in all transitional justice processes, civil society in this country has played a fundamental role in putting the issue on the agenda, keeping it there, and often at great costs--and sometimes even risks--they have contributed to making transitional justice a much more familiar term than it was just a couple of years ago. These contributions rest on a very steep learning curve indeed. Considering the usual effects that decades of repression usually have on civil society, Tunisian civil society organizations do the country proud and they should be both celebrated and supported. Finally, I would also like to acknowledge the role that various international actors have played in supporting the process in the country, ranging from the United Nations, to donor countries, to international NGOs.
Having said all of this, however, I would also like to point out that the transitional justice process in Tunisia faces some serious underlying challenges, which became apparent during my consultations with various stakeholders.
Despite the different initiatives, the claim that the pace of the process has been slow was recurrent in my conversations. The expression “it has been almost two years since the revolution and we are merely starting” constituted a leit-motif. It is true, and also acknowledged, that transitional justice processes take a long time to complete. For various categories of victims little and in many cases nothing has been done yet, and even for those on behalf of whom something has been done, in some of the essential areas of transitional justice, including prosecutions and various aspects of institutional reform especially of the justice and security sectors, particularly vetting their personnel, nothing of a truly systematic nature respecting international standards has even been set in place.
The second serious challenge that the transitional justice process in Tunisia faces is one of focus. The process has privileged reparations, and more precisely, monetary compensation. Furthermore, as is so often the case, the reparations measures implemented insufficiently heed the rights and needs of women affected by the violations. It is of course true that the needs of victims are both urgent and that addressing these needs is unpostponable. This should not obscure the fact that the other elements of a comprehensive approach to transitional justice are also at its core, and that indeed, the different measures relate to one another. Transitional justice cannot be reduced to any of its constituent elements, no matter which one that may be. Reparations without truth, justice, and various aspects of institutional reform as well as other guarantees of non-repetition risk their character as justice measures and may become, in the eyes of many, tokens of compensation distributed in order to gain the acquiescence of victims. This is not an argument for slowing down progress on reparations, but for taking a comprehensive approach to transitional justice that links reparations with advances in truth-seeking, criminal prosecutions, institutional reforms, and other measures to guarantee non-repetition.
The third challenge the transitional justice process faces in Tunisia, and definitely the most serious, is one that many stakeholders framed in terms of ‘politicization,’ of the process favoring some political groupings over others. Mindful of my mandate, I will limit myself to more structural considerations and likely outcomes and reframe the issue in terms of ‘fragmentation.’ The truth is that as we have seen, Tunisia has quickly undertaken a multiplicity of largely unrelated transitional justice initiatives. While on the one hand there is the commendable intention to respond expeditiously to emerging claims for justice, on the other, as was pointed out before, work on a comprehensive framework needs to progress. The different initiatives thus far seem to be ad hoc responses rather than parts of an integrated policy. The challenge is only heightened by the fact that the various initiatives have been essentially ‘event-based;’ each of them established in response to what using the term broadly is an event, or a series of them, a period. Each initiative is therefore targeted at the victims of those events, creating therefore a class of victims.
This inevitably raises questions about the equality of treatment not just amongst the different categories of victims thus created, but, even more fundamentally, amongst them and victims who have suffered violations of a similar kind, except not during events that have been the object of one of the initiatives. This approach makes it difficult to avoid the fragmentation of the process, the sense that not everyone is being treated equally, or that everyone that should be included in the process in fact has been. In a context characterized by the low levels of trust that are typical in the wake of repression, by difficulties achieving institutional coordination even amongst the central organs of the state, by wide regional, not unintended developmental chasms (which unsurprisingly, correlate with patterns of victimization), and indeed, in this case, by the ongoing process of framing a new constitution, it is perhaps not surprising that charges of politicization come about. Failing to stem this problem would undermine the whole transitional justice project, which in the end has as one of its explicit aims contributing to mending social fragmentation, or achieving reconciliation by means of both judicial and non-judicial measures.
I would like now to move to the preliminary recommendations I would like to offer. The first substantive recommendation I believe would contribute to stemming some of the challenges I just mentioned, particularly the last. The clearest and most compelling alternative to the ‘event based’ approach to transitional justice that has been adopted thus far is one that puts the concept of human rights unambiguously at the center of all efforts. All transitional justice efforts would then be organized around human rights violations. On this approach, what matters ultimately is not when the violation took place –during which event, or period—who the perpetrator might have been, or even antecedent facts related to the behavior of the victims, including their political or institutional affiliation or any other consideration.
Only the fact that human rights were violated is relevant –and sufficient-- for triggering the redress measures that together, form a part of a comprehensive transitional justice policy. Structuring all the measures fundamentally around the concept of human rights would do away with the risk of fragmentation by avoiding the creation of different ‘types’ of victims. This would make the system structurally less prone to fragmentation within society. To the extent that what is the object of redress by way of truth, criminal prosecutions, reparations, and other kinds of institutional reforms is the violation of certain rights, everyone whose rights have been violated would become the object of equal redress. This is the way of ensuring that the end of strengthening systems of rights, one of the critical aims of transitional justice can be fulfilled. Selecting as triggers of redress a catalogue of rights that is gender sensitive is crucial.
Adopting a human rights perspective that treats the violations of certain categories of rights as the sole factor in giving access to redress measures impacts the way that transitional justice policies are designed and the way that the institutions responsible for implementing the measures are operated. It is the remedy to charges of ‘ad hocism,’ favoritism, and lack of systematicity. To the extent that there are abiding rights to justice, truth, and reparations, a human rights centered approach also provides a strong incentive to make headway on the implementation of measures of all the relevant kinds, for no one thinks that compensation alone constitutes sufficient redress for the violation of fundamental rights.
I strongly encourage the Tunisian government to adopt this perspective in its design of transitional justice policies. Similarly, I also strongly encourage Tunisian civil society organizations, which have themselves shown some tendencies to divide along the same lines, to consider whether they are indeed giving central place in its actions to the notion of human rights, rather than to other considerations.
The draft law on transitional justice deserves consideration in its own terms. I mentioned already that the draft has the virtue of mentioning the four fundamental elements of transitional justice. However, the law is clearer in terms of definitions of these four terms than in terms of defining the functions and attributions of the commission regarding each of them. A lot, of course, hinges on this. From the existing draft it is not clear that the Truth and Dignity Commission the law would create is geared up for dealing with the four elements of transitional justice to a nearly comparable extent. I have two further observations regarding the draft, in addition to the fact that it could also give clearer place to the notion of human rights. The first goes back to the importance of securing the neutrality of the transitional justice measures and the ownership over them by the entire society. The mechanism for the selection of commissioners the draft describes leaves this responsibility to a political body, the National Constituent Assembly. This in itself is unobjectionable. Under circumstances in which the challenge is to take every measure possible to ensure the independence of the Commission, it is worth considering allowing the selecting body to hold public hearings with and about at least a short list of candidates.
The second observation concerns the fact that the commission the law would create would have arbitration functions concerning the settlement of the financial files. This will not only bring an immense administrative burden on the Commission, bearing in mind the quasi-judicial functions needed for any arbitration undertaking, it will also carry significant reputational and credibility risks given that arbitration for matters of corruption is likely to controversial. The very same commission that is expected to be proactive regarding prosecutions and vetting, for example, is a settlement body on corruption. This is a novel experiment and one can only hope that it proceeds in a manner that is uniformly rigorous in every respect, including in its respect for all relevant due process standards.
In order to guarantee that the transitional justice process is not focused unduly on reparations in the future, as important as reparations are, movement in other areas is necessary. Regarding guarantees of non-recurrence, I call on the Government to significantly accelerate the pace. There are reforms that certainly should proceed in advance of the work of the Commission. The lack of visible reform coupled with a deep mistrust of the population in both the justice system and internal law-enforcement bodies might in the longer run lead to a situation where trust is virtually impossible to re-establish. Institutional reform should not be carried out in an ad-hoc manner such as the vetting initiatives we have been learnt about. Quite to the contrary, thorough and comprehensive reforms are in dire need.
Regarding the justice system, the introduction of a self-regulated judiciary, which is separated from the executive power, is paramount. The establishment of an Independent Judicial Council administering the judiciary, including in terms of appointments, promotions and disciplinary procedures, is a priority. Current reform proposals are not sufficient in this regard. Furthermore, the establishment of security of tenure guaranteeing the irremovability of judges is necessarily a component of these reform efforts, which should be coupled with vetting initiatives in a systematic manner.
Reforming the internal security and police forces should be a second pillar of urgent institutional restructuring. The establishment of effective mechanisms of oversight to enhance transparency and accountability of the forces, coupled with institutionalized vetting procedures, which respect human rights standards, are a priority. Calls of the internal security and police forces to be neutral bodies, unrelated to any political force or affiliation, should be institutionalized in the new constitution.
In my last report to the General Assembly, on transitional justice and the rule of law, I insisted on the importance of making sure that transitional justice measures themselves conform with the standards of the rule of law. I take this opportunity to remind Tunisian authorities in charge of transitional justice that there are no shortcuts to justice, that in the desire to establish the truth, prosecute those responsible for violations, repair victims, and reform institutions, including by vetting their personnel, respecting due process, and all the other requirements of the rule of law is the only way to expect that transitional justice will indeed contribute to strengthening an effective regime of equal rights for all.
I will close with two matters that are usually not anticipated in transitional processes. Establishing effective measures dealing with the four areas under my mandate requires deliberately designed mechanisms of institutional coordination. Prosecutions, truth seeking, reparations, and guarantees of non-repetition straddle the competencies and require the collaboration of ministries that include finance, justice, interior, human rights, health, education, as well as others. I would therefore propose that an inter-ministerial coordination body be established to face the important challenges that lie ahead, and that guarantee adequate service delivery to victims. Offering benefits that include health services, for example, is of real help only to the extent that there are ways of guaranteeing the quality of those services. This is true obviously for all other sectors involved.
At the same time, international cooperation often can use coordination itself. A multitude of donors, which are interested in supporting the various transitional justice and reform issues does not necessarily lead to coherent reforms. Quite to the contrary, the overload with too many projects without sufficient focus and division of work can severely hamper progress on core initiatives.