Journal Essay

"Early" Transitional Justice in the Arab World: Lessons Learned

Eric Wiebelhaus-Brahm

Fall 2016, Volume XXIII, Number 3

Dr. Wiebelhaus-Brahm is an assistant professor at the School of Public Affairs, University of Arkansas at Little Rock. The author would like to thank Brian Clappier, Mara Denny and Claude Lawrence for research assistance on this article. An earlier version of this article was awarded second prize by the Al Kawakibi Democracy Transition Center project on “Transitional Justice in the Arab Region.”

In recent decades, a broad range of tools, collectively known as "transitional justice," have been developed to help individuals and societies heal from the effects of past violence. Throughout history, violent conflict and government repression have frequently led to widespread violations of human rights. In most cases, the perpetrators of such abuses have not been held accountable for their deeds, and victims have rarely seen justice done. Since the middle of the twentieth century, however, governments have sometimes taken steps to try to address the human suffering produced by past violence.1 The International Military Tribunals at Nuremberg and Tokyo and related domestic war-crimes prosecutions in Europe and Asia after World War II marked the first widespread effort to hold perpetrators of gross human-rights violations accountable. The tribunals prompted the development of the modern human-rights system through the creation of the United Nations and the broad acceptance of the Universal Declaration of Human Rights. During the so-called Third Wave of democratization that began in southern Europe in the mid-1970s, democratizing societies were confronted with the "torturer problem," namely how to deal with perpetrators of human-rights abuses.2 As democratization efforts spread across the developing world, several institutional innovations were created to pursue justice for past abuses in the context of political transitions.

Today, transitional justice encompasses a variety of measures.3 The development of transitional justice is based on an understanding that domestic stability, security and democratic governance in the aftermath of repression and mass violence are strengthened by a commitment to justice and accountability. It is widely accepted among policy makers and activists that openly facing the past is essential for establishing the rule of law, promoting human rights, addressing the suffering of victims, and preventing the recurrence of future human-rights abuses. Yet, scholars disagree as to whether different transitional-justice "mechanisms" are beneficial for transitional societies. One mechanism is trials. In ideal circumstances, a court impartially weighs evidence and testimony to determine the guilt or innocence of alleged perpetrators of human-rights abuses. For those found guilty, the courts decide on a punishment. Trials are favored for their ability to remove perpetrators from positions of power, promote the rule of law, and deter future human-rights abuses, among other things.4 Yet, other research finds that trials undermine human-rights promotion unless balanced with amnesties.5

A second mechanism of transitional justice, the truth commission, is a nonjudicial body that "(1) is focused on past, rather than ongoing, events; (2) investigates a pattern of events that took place over a period of time; (3) engages directly and broadly with the affected population, gathering information on their experiences; (4) is a temporary body, with the aim of concluding with a final report; and (5) is officially authorized or empowered by the state under review."6 Many promote truth commissions for their ability to potentially help victims heal by giving them an opportunity to tell their stories, having their suffering officially acknowledged, and uncovering details about the fate of their loved ones. Producing an authoritative version of history might curtail historical myth making and encourage reconciliation. Commission recommendations also may lead to other transitional-justice measures and the implementation of reforms that are designed to prevent human-rights abuses in the future. Some recent research argues that truth commissions promote human rights,7 while others find the opposite.8

A third mode of transitional justice, reparations programs, involves monetary and nonmonetary awards granted to victims to compensate for the suffering inflicted upon them. Relatively little research has dealt with the impact of reparations programs. A fourth measure of transitional justice, vetting, was popularized by Eastern Europe as the means of choice to deal with the legacy of communism. In many of these countries, individuals were punished for their contribution to maintaining the oppressive regime. Rather than face prison time, those found responsible for human-rights abuses sometimes were banned from politics or from serving in the government bureaucracy. Finally, although they seem contrary to the pursuit of justice, amnesties are frequently employed to address histories of violence and repression. While some argue that amnesties promote impunity and reward violence, others see them as pragmatic tools to give perpetrators incentive to relinquish power.

As democratization efforts spread from Latin America in the 1980s to Eastern Europe and Africa in the 1990s, countries frequently used one or more of these transitional-justice tools to address histories of violence and repression. Intergovernmental organizations and global human-rights NGOs have developed significant knowledge of transitional-justice experiences in these countries. In fact, many experts were intimately involved in earlier experiments as judges, lawyers, commissioners and the like. The United Nations has been responsible for setting up several transitional-justice processes and disseminating best practices.9 As a result, when tentative political liberalization began to occur in some parts of the Middle East after 2010, there was a significant body of experience upon which to draw. Often overlooked has been the earlier transitional-justice experience of other countries of the Middle East. This article critically examines the experiences of Iraq, Algeria and Morocco and outlines what other societies in the region should reasonably expect from transitional justice.

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