Transitional Justice in Tunisia

Innovations, Continuities, Challenges

Simon Robins, Paul Gready, Simon Robins, Paul Gready

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000610956
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho internacional

This book engages comprehensively with the dynamics of the transitional justice process in Tunisia and its mechanisms, elaborating lessons for transitional justice practice globally.

Grounded in new empirical material as well as a broader awareness of transitional justice, this book provides athorough assessment of transitional justice in Tunisia. Beyond an overview of the process, it critically engages with key questions such as the extent to which the process articulated global contemporary practice, such as liberal state-building and narrow conceptions of justice as civil-political rights, and to which it generated novel approaches at odds with the mainstream that can inform global practice. The book examineshow the transitional justice process in Tunisia has been contextualised and made relevant to the nation's circumstances and needs. It looks at innovation at the level of formal mechanisms and at the dynamics of mobilisation and contestation surrounding transitional justice both from civil society organisations and victims' groups. Bringing together analysis from legal scholars, social scientists as well as activists and practitioners, the book challenges the legalism of transitional justice discourse globally, engendering a dialogue between these legal and judicial approaches on the one hand and alternative, more diverse and radical approaches to justice on the other, in order to both deal with the past and to address ongoing injustice.

This first book in English to address the dynamics and mechanisms of the transitional justice process in Tunisia will appeal to students and scholars of transitional justice, human rights, peacebuilding, conflict and peace studies, development, and security studies, as well as policymakers and practitioners in these fields, and others with interests in Middle Eastern studies.

II Formal mechanisms

Chapter 6 The politics of technical assistance International involvement in Tunisia’s transitional justice process

Alicia Pastor y Camarasa

DOI: 10.4324/9781003175223-9

Introduction

Surprised by Ben Ali’s flight to Saudi Arabia, Tunisian officials in charge lacked a coherent transition plan and welcomed international actors.¹ The early days of the revolution were marked by an urge to ratify human rights treaties, as the former secretary-general of the government in 2011 recalled: “We wanted to show that Tunisia would break radically with its past”.² This revolutionary moment in Tunisia was seen as a unique opportunity for democratisation in the Middle East and North African (MENA) region and the Arab world more broadly. It was manifested in international actors pouring significant funds into Tunisia’s democratic transition:³ the US allocated over 400 million USD in 2011, while the European Union doubled its initial forecast of 240 million EUR between 2011 and 2013.⁴

This chapter explores the international dimension of the transitional justice process that occurred in Tunisia. A tension between developing global standards and the demand for a bottom-up, tailored approach characterises transitional justice as a field. The mandate of transitional justice is integrated into post-conflict and democratic transitions, where international actors are allowed an extensive role to assist in processes. While acknowledging the dialectical nature of transitional justice, this chapter will focus on the international aspect that characterises the transitional justice process as a whole. The type of transitional justice typically advocated by international actors is characterised by a legalistic understanding, composed of a set of state-led measures and institutional reforms.⁵ It has been widely criticised by the critical strand of transitional justice literature.⁶ However, as this chapter will show, international actors’ involvement remains significant and, indeed, is essential to understanding the challenges surrounding contemporary transitional justice processes.

By examining international involvement in Tunisia’s transitional justice process, this chapter seeks to answer: how were international actors involved during the transitional justice process in Tunisia and what does this reveal about the politics of that involvement? To address these questions, the chapter draws on literature engaged with policy transfer,⁷ focusing on three major international actors who were involved in Tunisia’s transitional justice process: the United Nations Development Programme (UNDP), the Office of the United Nations High Commissioner for Human Rights (OHCHR), and the International Center for Transitional Justice (ICTJ). The policy transfer framework is useful, as it reveals different layers of involvement by these three agencies; it further epitomises international involvement in transitional justice and emphasises the international dimension of transitional justice processes.⁸ The UNDP, the OHCHR, and the ICTJ have been heavily involved in transitional justice processes in the past 15 years in multiple contexts.⁹ The UNDP has recently been particularly involved in transitional justice processes in Libya and Yemen;¹⁰ the OHCHR has been involved in over 20 countries to develop and implement national consultations;¹¹ while the ICTJ has had some part, among other aspects of transitional justice processes, in most truth commissions set up since 2001, providing “comparative information and often bringing practitioners from one country to share experiences with similar exercises elsewhere”.¹²

To this end, this chapter draws on institutional documentation publicly available from the UNDP and the OHCHR, through a review of their annual reports and project documents. One of the difficulties of examining the research question at the heart of this chapter is the scarcity of sources that are available. For instance, as the ICTJ is a private organisation, it is less subject to transparency requirements, and only general annual reports are available. These sources are complemented by three semi-structured interviews (December 2019 – March 2020), conducted with employees of the UNDP and the ICTJ, as well as a Tunisian member on the drafting committee of the transitional justice law.

As noted by Paige Arthur and Christalla Yakinthou, despite the acknowledgement that transitional justice has “gone global”, little qualitative research focuses on “patterns of international assistance and its impact on transitional justice processes”.¹³ As a middle-income country with a strong legal academic community, in a relatively peaceful context, Tunisia represents a particularly appropriate case to examine international involvement in transitional justice. This chapter focuses on international actors that will be involved in future processes, and findings from Tunisia’s can provide cues for these. Furthermore, while the ICTJ has been at the centre of discussions in the literature,¹⁴ the concrete assistance from the UNDP and the OHCHR in transitional justice processes has not been documented in depth.¹⁵ Finally, to date, the involvement of international actors in Tunisia’s transitional justice process has not been discussed beyond cryptic references to the international community in academic publications.¹⁶ The chapter begins by showing how international involvement in transitional justice functions as a process of policy transfer, before providing an account of the multifaceted involvement by the UNDP, OHCHR, and ICTJ. Finally, it outlines the dilemmas of international involvement in the Tunisian transitional justice process.

Understanding the politics of international involvement through policy transfer

This section highlights why international involvement in transitional justice functions as a policy transfer before exposing how it materialises by drawing from insights from the policy transfer literature.

International involvement in transitional justice as a policy transfer

International involvement in transitional justice processes functions as a policy transfer process, particularly in the context of state reconstruction. Policy transfer refers to a dynamic process where “knowledge about policies, administrative arrangements or institutions is used across time or space in the development of policies, administrative arrangements and institutions elsewhere”.¹⁷ Evans and Barakat have defined transitional states as “living laboratories for the study and practice of policy transfer”.¹⁸ During a transition to democracy or within a peace-building context occurring in the developing world, international organisations have long been identified as transfer agents through which policy transfer can take place.¹⁹

Transitional justice has emerged as an essential element of democratic transition, alongside constitution-making and holding new elections; it is, thus, part of policy transfers occurring during contexts of transition. Long gone are the days of the 1980s and 1990s in Latin America, where transitional justice processes were an exceptional ad hoc internal processes in middle-income countries.²⁰ Today, transitional justice has become “institutionalised and mainstreamed”.²¹ The question becomes not if there should be a transitional justice process, but rather what shape it will take.²² International actors have been instrumental in mainstreaming transitional justice into processes of peace-building and/or democratic transition, by integrating it as an essential tool of the liberal peace.²³ Transitional justice is perceived by international actors not only as a mechanism to deal with the crimes of the past but also as a facilitator of democratic political transition,²⁴ as well as a contributor to the establishment of the rule of law.²⁵ Peace is seen as an instrument of democratic transition, as Helen Clark, the administrator of the UNDP at the time, said in 2011: “Linking transitional justice to broader development work, including institutional reforms, contributes to building the peace, stability, and respect for human rights which underpin sustained development”.²⁶ Transitional justice has been integrated into the UN peace-building system in the immediate and long-term aftermath of conflict since the 2004 Secretary-General Report “The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies”,²⁷ which was reaffirmed in 2011.²⁸ By 2013, transitional justice mechanisms had become an integral part of the mandates established by the UN Security Council in peace-building/peace-keeping missions.²⁹ The OHCHR was designated as the lead entity on transitional justice in the UN system in 2006.³⁰ Because of the mainstreaming of transitional justice through the involvement of international actors, the field of transitional justice is characterised by knowledge-sharing about its different pillars, advocating for a certain form of transitional justice through a particular set of policies and institutional setting.

The field of transitional justice itself functions as a discursive space for policy transfer where a certain conception of transitional justice is spread through international involvement. Scholars focusing on international involvement in times of transition have shown how new interim governments are potentially susceptible to international policy agendas.³¹ From a policy transfer standpoint, to make informed decisions, the country in transition needs a local bureaucracy that has the capacity to “provide evidence-based resistance to external sources of ill-conceived policy transfer”.³² In contexts of transition to democracy or following conflict, these are often lacking, and because these countries lack the local expertise, “the provision of technical assistance to post-conflict states by international governmental and non-governmental organisations provide opportunity structures for policy transfer”.³³ Similar to policy transfer in the context of state reconstruction, during transitional justice processes, national authorities are particularly vulnerable to international involvement. During this knowledge-sharing process, a certain understanding of transitional justice and subsequent conceptions regarding its institutionalisation are advocated by international actors, playing a significant role in the institutionalisation of transitional justice. For instance, truth commissions illustrate an institutional setting to be implemented during a transitional justice process. As Arthur points out, such processes are significantly funded by international actors who “[play] a strong role in all aspects of the process”.³⁴ Critiques directed at international involvement in the transitional jus...