What does it mean to pursue criminal accountability in the context of resurgent authoritarianism and ongoing conflict? This question has been put to the test vigorously in the Arab region. The prosecution of political leaders and other high-level government officials was central to the justice demands of the societies emerging from the mass Arab uprisings of 2010 and 2011.1 Transitional justice policy and scholarship have operated predominantly on the assumption that transitions entail a shift from violent authoritarian rule to liberal democratic rule.2 However, unlike transitions in other parts of the world, the Arab region did not see such a shift and instead underwent transitions that saw the reemergence of old regime figures and a descent into war. This means that lawyers, activists, civil society groups, and victims and their families have had to grapple with the pursuit of justice in a climate that is intensely hostile to it.
In 2011, former Egyptian President Hosni Mubarak was tried in court, alongside his two sons, Alaa and Gamal, and a number of Ministry of Interior officials including the former interior minister, Habib el-Adly. They were being tried for corruption and for the murder of peaceful protesters during the 2011 uprising that toppled Mubarak. Earlier that year, former Tunisian President Zine El-Abidine ben Ali was tried in absentia and the International Criminal Court (ICC) issued arrest warrants for Libyan leader Muammar Qadhafi, his son Saif al-Islam Gaddafi, and Chief of Intelligence Abdullah Al-Senussi.3 The ICC issued additional arrest warrants for Libyan army commanders Al-Tuhamy Mohamed Khaled and Mahmoud Al-Werfalli in the years that followed.4
In Yemen, former president Ali Abdullah Saleh agreed to step down in a deal brokered by the Gulf Cooperation Council (GCC) that guaranteed his immunity from prosecution.5 An attempt by the UN Security Council to pass a resolution that would refer Syria to the ICC was blocked by Russia and China in 2014.6 Since then, Syrian lawyers and activists have succeeded in using universal jurisdiction laws in European countries such as Germany, Sweden, and France to build criminal cases against Syrian perpetrators.7
Still, many of these leaders in the Arab region have either been released (such as Mubarak), remained out of the reach of the courts (Ben Ali), held onto power (Syria’s Bashar al-Assad), or been killed (Qadhafi and Saleh). The whereabouts of other principal actors, such as Saif al-Islam Gaddafi, are wrapped in secrecy.
These cases from the Arab region present valuable material that calls for rethinking our expectations of transitional justice and how we understand its relationship with time. They challenge the concept of “transition” and the concept of “justice,” both of which have very real consequences on the ground. This chapter will begin by discussing how contentious transitions have led to contentious justice processes in the Arab region, with an emphasis on how law has been wielded to influence the course of both. It will then argue that the parameters of transitional justice policy need to be adjusted to recognize the active pursuit of justice during violent conflict and in the context of renewed authoritarianism. It concludes by drawing attention to the complex linkages between transitional justice and time and calls for recognition of transitional justice as a form of resistance to ongoing violence and authoritarian rule.
A Contentious Transitional Justice Process
The challenge regarding “transition” stems from the fluid ways in which the Arab transitions unfolded.8 Put simply, the aftermath of the uprisings saw protracted violent conflict and the emergence of new governments within a persistent authoritarian regime structure.9 As a result, the transitional justice process saw ebbs and flows, much like the transitional justice processes that unfolded in certain Latin American countries since the 1980s, with some important differences in contextual factors. The challenge in understanding how “justice” is pursued lies in the use of transitional justice as a battlefield for various actors with competing interests. These actors can be grouped in two broad categories.
On the one hand, activists, activist lawyers, journalists, and civil society organizations have been using the law to fight the injustice of the law. This has been done primarily through litigation activism that aims to push for the enactment of transitional justice laws and for criminal prosecutions. On the other hand, interim and post-transition authorities, the military, the judiciary, and other elite actors have been using the law to entrench authoritarian rule. For instance, Egypt and Tunisia passed controversial so-called “reconciliation” laws that stipulate that those individuals who had engaged in financial corruption would be spared criminal prosecution if they returned their stolen assets to the state.10 The alleged reasoning for such reconciliation laws was that the return of stolen assets, and not the imprisonment of such individuals, would benefit the battered economies of Egypt and Tunisia.
The enactment of repressive laws about protests, media and speech, and other legislation aimed at crippling the work of civil society has also served to block the pursuit of a genuine reckoning with the past. Politicized trials and investigations in Bahrain, Egypt, Libya, Tunisia, and Yemen not only reflect the use and abuse of transitional justice to further authoritarian rule, but they also serve as a warning to those who seek accountability for decades of state-sanctioned atrocities: if such efforts persist, those asking for accountability—and not those who are the subject of criminal investigations—will, in the end, occupy the state’s prison cells. Finally, there has been a trend that constitutes the proliferation of laws as a means to legalize socioeconomic and political injustice. Amnesties, lustration, immunity laws, as well as the reconciliation laws in Egypt and Tunisia are examples of this obsessive enactment of laws, a trend which exemplifies rule by law as opposed to rule of law.11 The resulting justice process throughout the Arab region, then, is highly contentious.
While transitional justice, with some important exceptions, has often been regarded as a post-conflict issue, the Arab region’s cases demonstrate that justice can and has been pursued in both authoritarian contexts and during armed conflict.12 What does that justice mean and what are the objectives of those who seek it? These are complex but crucial questions that must be addressed if scholars and practitioners are to better understand transitional justice in the Arab region. First, however, it is worth examining briefly another implication of the pursuit of prosecutions of political leaders in the Arab region: their limited scope.
Prosecuting Political Leaders: A Limited Scope
The limited charges and selection of individuals who were subject to investigation and prosecutions, particularly in Egypt, Libya, and Tunisia, are a strong reflection not only of the nature of the transitions, but also of the use and abuse of transitional justice. Most of the charges leveled against these leaders had to do with crimes committed during the uprisings. In the case of Egypt and Tunisia in particular, this meant that judicial processes sought criminal accountability for a period of a few weeks in December 2010 and January 2011. Moreover, many of the criminal charges addressed corruption and financial crimes; they covered a longer period of time that included the pre-uprising era and outnumbered the human rights charges.
There are several reasons the prosecutions were—and continue to be—limited in this way. First, the prosecutions of political leaders such as Mubarak and Ben Ali were highly symbolic as these were heads of state who represented a legacy of decades of oppression. The trials were, effectively, used as a way to appease public anger and to give the impression that there had been a definitive break with the former regime. Second, the prosecutions of Mubarak, Ben Ali, and others were a political strategy to sacrifice a part of the regime to save the whole.13 They were a way to protect the interim and post-transition authorities from prosecution for their role in past atrocities. This was exemplified in Tunisia’s President Beji Caid Essebsi government’s hostility toward the Truth and Dignity Commission (TDC), which had the power to refer cases to the courts. The troubled relationship between the Essebsi government and the TDC was marked by accusing the latter of corruption as well as denying it access to certain governmental archives. Third, the limited scope of the criminal charges served to portray the mass uprising period as an exceptional one. This was and continues to be an attempt to control which narrative about the past emerges on top.
Finally, the emphasis on corruption and socioeconomic crimes was also in large part a result of decades of mobilization by labor unions and workers’ movements. A major element of how injustice is practiced and perceived in Egypt, Libya, Tunisia, and Yemen constitutes the daily visibility of corruption and unequal access to economic resources. Consequently, there has been a reckoning with the transition itself as opposed to the decades of atrocities that preceded it. Regimes and their allies attempted to foreground the “exceptional” circumstances of the 2011 uprisings, as though the decades of atrocities leading up to them did not happen or did not matter. In effect, the “post-conflict” dimension, even the term “transitional,” constricts or limits our ability to understand the reasons why transitional justice unfolded the way it did in the Arab region.
The important exception here is Tunisia’s TDC, whose mandate allowed for a reckoning with a past that extended to 1955—the year before Tunisia gained independence from France. This is significant in part because the TDC process demonstrated very powerfully the linkages between socioeconomic crimes, in particular financial corruption at the political level, and civil and political crimes.14 As a result, the transitional justice process in Tunisia aimed to address the structural as well as the human rights roots of multiple decades of oppression.15 The TDC heard thousands of testimonies of those who suffered under both the Ben Ali and the post-independence Habib Bourguiba regimes. In November 2016, the TDC began a series of televised testimonies, further galvanizing a very public national debate about how to address the painful past. It is unsurprising that, almost immediately, the TDC became a thorn in the side of the Essebsi government, which was hell-bent on preventing the commission from doing its work. When the government passed the administrative reconciliation law in September 2017, it not only created a transitional justice process that runs parallel to the existing one, but it also violated the Tunisian constitution and the mandate of the TDC.16
Rethinking the Parameters of Transitional Justice Policy
Law emancipates as it represses, and the legal enforcement of transitional justice is no exception. More importantly, however, is the idea that transitional justice is a process, not an outcome.17 Ironically, victims are often overlooked in transitional justice processes. There is a very real dilemma of managing the justice expectations of victims and their families. Some would argue that now is not the right time to seek justice, given the tumultuous transitions marked by renewed authoritarianism and ongoing conflict.18 Is this not, though, what victims of the Assad, Mubarak, Ben Ali, Qadhafi, and Saleh eras were—and continue to be—told already? When understood and approached as a process and not a definitive outcome, transitional justice can and should be pursued in the immediate term rather than stall until a mythical ideal transition emerges. As the Arab region’s cases demonstrate, the pursuit of transitional justice during violent conflict and in the context of resurgent authoritarianism is an effective tool of reckoning with the past and the present. Even where it fails in doing so––largely due to oppression and crackdowns on civil society—the pursuit of transitional justice and its various mechanisms in these challenging contexts succeeds, at least, in laying part of a foundation for addressing past injustices in the future.
Transitional justice policy needs to take this complexity of time into account by adopting more innovative approaches. Through their documentation and litigation efforts, Syrians have succeeded in sustaining the momentum behind the search not only for justice, but also the truth about the fate of victims. For example, the robust documentation movement led by Syrians has been very diverse. Both professionals and ordinary citizens have been documenting. Activist lawyers, activists who are not lawyers, victims, and civil society actors have been documenting and filing court cases against alleged perpetrators through the use of universal jurisdiction laws in certain European countries. While some criticize this because they are concerned about documentation procedures that do not meet so-called international standards, the critique overlooks the power of this victim- and survivor-led documentation movement.19
This organic movement, which has generated powerful material for truth and accountability mechanisms, enhances the legitimacy of the overall transitional justice process. If we think about justice in this way when we look at the difficult examples of renewed authoritarianism and ongoing conflict, then we might be successful in managing the expectations of victims, who understandably seek a rapid and retributive justice. It is futile to wait for an ideal transition to emerge. Instead, active efforts to pursue justice in various ways––whether through documentation, litigation activism, or a combination, as is happening with Syria––lay a strong foundation that future societies can use to pursue the transitional justice mechanism they deem appropriate for dealing with their painful past.
That said, a major obstacle to this is the collective, largely self-imposed amnesia at the societal level that has, in a sense, buried any kind of meaningful public dialogue to address the past in much of the Arab region. Documentation, then, is not simply something that facilitates the pursuit of transitional justice. It is a powerful form of nonviolent resistance to ongoing, violent conflict.20 Indeed, when understood as a form of justice that can be pursued immediately, without having to wait for a model democratic transition to emerge, the transitional justice process can be very empowering for victims and their families.
Much like transitions in other parts of the world, those in the Arab region are marked by fluid processes of change rather than linear paths to liberal democracy. The absence of accountability and lack of justice were major drivers of the 2011 uprisings and calls for reform; this is a point that is often forgotten, if not buried, in the few public debates about the past. The continued use and abuse of transitional justice since 2011 attests, then, to the significance that various and competing actors attach to transitional justice. Most of all, it demonstrates the importance of taking time and expectations into account when designing transitional justice policy and evaluating its performance in such challenging circumstances.
1 Noha Aboueldahab, Transitional Justice and the Prosecution of Political Leaders in the Arab Region. A comparative Study of Egypt, Libya, Tunisia and Yemen (Oxford: Hart Publishing, 2017).
2 The definition of transitional justice continues to be debated, but it essentially refers to addressing the past: past atrocities, human rights violations, and social grievances. This is done through a number of judicial and non-judicial mechanisms including truth commissions, prosecutions, reparations, vetting, and other forms of national reconciliation. See “Guidance Note of the Secretary-General: United Nations Approach to Transitional Justice,” United Nations, March 2010, https://bit.ly/2W2PYAt and Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000).
3 “Warrant of Arrest for Abdullah Al-Senussi,” International Criminal Court, June 27, 2011, https://bit.ly/2sISHSl; “Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi,” International Criminal Court, June 27, 2011, https://bit.ly/2FJDOGP; “Warrant of Arrest for Saif Al-Islam Gaddafi,” International Criminal Court, June 27, 2011, https://bit.ly/2T3YhtK.
4 “Khaled Case: The Prosecutor v. Al-Tuhamy Mohamed Khaled ICC-01/11-01/13,” International Criminal Court, April 24, 2017, https://bit.ly/2FJzfMF; “Al-Werfalli Case: The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli ICC-01/11-01/17,” International Criminal Court, August 15, 2017, https://bit.ly/2i5iaTx.
5 “Law No. 1 of 2012 Concerning the Granting of Immunity from Legal and Judicial Prosecution,” Amnesty International, January 22, 2012, https://bit.ly/2FGfANT.
6 “Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution,” United Nations Security Council, May 22, 2014, https://bit.ly/2Hl4UXc.
7 “These are the crimes we are fleeing. Justice for Syria in Swedish and German Courts,” Human Rights Watch, October 3, 2017, https://bit.ly/2xXoGBm.
8 For an in-depth discussion regarding the unfolding of these transitions, especially in the immediate aftermath of the 2010/2011 uprisings, see Aboueldahab, Transitional Justice and the Prosecution of Political Leaders, 2017.
9 Mohammed Cherif Bassiouni, “Editorial,” International Journal of Transitional Justice, 8 (2014): pp. 335-336.
10 “Loi Organique n 2017-62 du 24 Octobre 2017, relative à la réconciliation dans le domaine administratif,” Tunisia’s Legislation, October 24, 2017, https://bit.ly/2FL7e7M; David Awad, “Egyptians debate efforts to bring back Mubarak’s billions,” Al-Monitor, July 5, 2018, https://bit.ly/2AT3yxn.
11 Tom Ginsburg and Tamir Moustafa, Rule by Law. The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008).
12 Noha Aboueldahab, “Transitional Justice Policy in Authoritarian Contexts: The Case of Egypt,” Brookings Doha Center, 2017, https://brook.gs/2gkzL5U; Noha Aboueldahab, “Writing Atrocities: Syrian civil society and transitional justice,” Brookings Doha Center, 2018, https://brook.gs/2K1HjYd.
13 Aboueldahab, Transitional Justice and the Prosecution of Political Leaders, 2017.
14 Noha Aboueldahab, “Navigating the Storm: Civil Society and Ambiguous Transitions in Egypt, Libya and Tunisia,” in Jasmina Brankovic and Hugo van der Merwe, Advocating Transitional Justice in Africa (New York: Springer, 2018).
15 Noha Aboueldahab, “Taking Stock: Tunisia’s Transitional Justice,” 98, African Yearbook on International Humanitarian Law (2017): pp. 98-108. For more on transitional justice and socioeconomic accountability, see Lars Waldorf, “Anticipating the Past? Transitional Justice and Socio-Economic Wrongs,” Social and Legal Studies 21, no. 2 (2012): pp. 171-186, https://bit.ly/2zYI3e0; Lisa LaPlante, “Transitional Justice and Peace Building: Diagnosing and Addressing the Socioeconomic Roots of Violence through a Human Rights Framework,” International Journal of Transitional Justice 2, no. 3 (2008): pp. 331-355; Dustin N. Sharp, “Addressing Economic Violence in Times of Transition: Toward a Positive-Peace Paradigm for Transitional Justice,” Fordham International Law Journal 35 (2012): p. 780; Hannah Franzki and Maria Carolina Olarte, “The Political Economy of Transitional Justice. A Critical theory Perspective,” in Susanne Buckley-Zistel, Teresa Koloma Beck, Christian Braun, and Friederike Mieth, Transitional Justice Theories (London: Routledge, 2014).
16 Loi organique n 2017-62 du 24 Octobre 2017, relative à la réconciliation dans le domaine administratif, https://bit.ly/2FL7e7M.
17 Catherine Turner, Violence, Law and the Impossibility of Transitional Justice (Oxford: Routledge, 2016). See also Aboueldahab, Writing Atrocities, 2018.
18 Aboueldahab, Transitional Justice and the Prosecution of Political Leaders, 2017; Aboueldahab, Writing Atrocities, 2018.
19 Aboueldahab, Writing Atrocities, 2018.
20 Aboueldahab, Writing Atrocities, 2018.