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.
IRAQ'S PUNITIVE APPROACH
After Saddam Hussein came to power in Iraq in July 1979, his regime quickly became renowned for its brutality. Suspected opponents were subject to torture, execution and arbitrary detention with alarming frequency. An estimated 300,000 people are believed to have been "disappeared" during Saddam Hussein's 34-year rule.10 With the government dominated by Sunni Arabs, the Shia and Kurdish populations faired particularly poorly. During the 1980-89 Iran-Iraq War, an estimated 50,000-70,000 Iraqi Shia were imprisoned or vanished, with an additional 500,000 forcibly expelled to Iran.11 A brief Shia rebellion following the 1991 Gulf War resulted in thousands more executed, imprisoned or missing. The Kurds suffered a similar fate. For example, between February and September 1988, more than 100,000 Kurds are believed to have been executed during the genocidal Anfal campaign.12
Given the human-rights abuses of Saddam Hussein's regime, it is unsurprising that demand for transitional justice was high following the March 2003 U.S. invasion. A mid-2003 survey found widespread support among Iraqis across ethnic and regional boundaries for public trials of those responsible for human-rights abuses under Hussein's government.13 In fact, in the years since the Baathist regime was overthrown, a variety of transitional-justice measures have been implemented. However, by and large, they have not promoted reconciliation and state-building. Rather, transitional justice has been politicized and manipulated to settle old scores. As one account summarized, the Iraqi tribunals suffered from (1) a lack of international participation, (2) poorly trained judges and legal counsel, (3) political manipulation, (4) controversy over the use of the death penalty, (5) procedural and evidentiary shortcomings, and (6) security problems.14 The numerous reports of revenge killings and other actions against former Baath party members are indicative of the sentiment that has prevailed.15 As a result, transitional-justice initiatives have exacerbated tensions and jeopardized future stability.
Clearly, there was strong legal and ethical justification for prosecuting Saddam Hussein and many top officials in his government. Shortly after the U.S. invasion, separate assessments by the U.S. government and the United Nations found the Iraqi legal system wholly inadequate for conducting trials of past abuses.16 A new body was needed for the task. After several months of deliberation by the U.S.-led Coalition Provisional Authority (CPA) and the Iraqi Governing Council (IGC), the statute for the Iraqi Special Tribunal for Crimes against Humanity (IST) was issued under CPA Order No. 48 on December 9, 2003. The IST statute gave the tribunal jurisdiction over all Iraqis for genocide, crimes against humanity, war crimes, and crimes under existing Iraqi law that had occurred in Iraq, Iran and Kuwait.17
Problems emerged from the very beginning. Pre-invasion planning for transitional justice was largely ignored following the invasion. Despite the extensive research done by Iraqi expatriates and non-Iraqi experts as part of the U.S. State Department's Future of Iraq Project's "Working Group on Transitional Justice,"18 interagency rivalries and political divisions within the Bush administration caused decision makers to ignore its findings. The Iraqis and the Bush administration both preferred a national court, due to a shared mistrust of the United Nations. The global human-rights community, by contrast, argued that Iraq was not ready for free and fair trials and favored an international tribunal. As a result, the architects of the IST benefited less from international transitional-justice expertise and the lessons learned from other tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL).19 Rather, it was constructed and supported largely by a team of legal advisors from the U.S. Departments of Justice and State.
From its inauspicious beginnings, the IST quickly became subject to political manipulation. The IGC's Salem Chalabi gained control of the establishment and administration of the IST as well as the selection of judges and prosecutors. Because his uncle, Ahmed Chalabi, had close ties to the Bush administration and the U.S. Department of Defense, Salem Chalabi's appointment damaged the IST's legitimacy in the eyes of some Iraqis.20 Eventually, after being indicted by an Iraqi court on unrelated charges in August 2004, Salem Chalabi resigned his post with the IST. However, the resignation did not restore the IST's reputation. It continued to be seen as victors' justice in some circles.
Tarnished by its connection to the U.S. occupation, the IST was retooled by the Iraqi government after the handover of sovereignty. On October 9, 2005, the Transitional National Assembly (TNA), to which the CPA handed power, ratified Law No. 10, creating a new Iraqi High Criminal Court (IHCC) to replace the IST. Nonetheless, the IHCC possessed many of the weaknesses of its predecessor. The Dujail Trial was the first held before the IHCC. The court's activity coincided with the growing insurgency in Iraq. Even before the trial began, five tribunal employees and a defense attorney had been killed.21 After opening on October 19, 2005, the trial lasted just over a year before finding Saddam Hussein and seven other defendants guilty of crimes against humanity for torture, forced deportation, imprisonment, willful killing and other inhumane acts committed against Shias in retaliation for an assassination attempt on Hussein in 1982.
During the course of the proceedings, the Higher National De-Baathification Commission (HNDBC) removed several court officials in what appeared to be an attempt to influence the course of the trial. Moreover, the prime minister and members of parliament pressured the IHCC to render a decisive verdict. A similar pattern emerged with the Anfal Trial of Saddam Hussein and Ali Hassan al-Majid (Chemical Ali), which began in August 2006. In particular, the removal of presiding judge Amiri signaled blatant interference with the independence of the judiciary. Moreover, Saddam Hussein's December 2006 execution prior to the conclusion of the Anfal Trial precluded a full accounting of other crimes he had committed.
Although the high-profile targets of the IHCC ensured it much-deserved attention, with an estimated total Baath party membership of 2 million out of 24 million Iraqis as of early 2003,22 the process of de-Baathification has had broader and more pernicious effects on post-invasion Iraq. One of the first U.S. acts after taking over Iraq was to establish a process to purge the Iraqi government of Baath members. On May 16, 2003, CPA Order No. 1 established the parameters of de-Baathification.23 Articles 2 and 3 outlined the criteria, which included "Senior Party Members"24 and individuals regardless of party rank holding positions in the top three layers of the government bureaucracy, state-owned corporations, and other public-sector institutions. However, the CPA provided no clear policy for distinguishing those who had committed human-rights abuses (and may have numbered in the tens or even hundreds of thousands)25 from those who joined the party simply because it was a prerequisite for many of the most prestigious and high-paying jobs in Iraq. The failure to adequately consider individuals on their own merits had dire consequences. In total, the CPA dismissed an estimated 500,000 military and intelligence personnel and a further 30,000 public-sector employees. Iraqis with critical administrative and policing skills were dismissed, which hampered reconstruction and weakened the security situation. In fact, many dismissed and unemployed former Baath party members became sympathetic to the insurgency movement.26
By August 2003, the management of de-Baathification had been transferred from the CPA to the newly formed HNDBC under the IGC.27 The HNDBC was a modest improvement over the U.S.-run process. It extended a selective appeals process under which an estimated 9,000 ex-Baathists previously disqualified under CPA orders had returned to work in the government as of 2005.28 However, the HNDBC refused to consider appeals by former senior Baath members, military officers or members of Iraq's intelligence services.29 More generally, led by Ahmed Chalabi, a bitter opponent of Saddam Hussein's regime, the HNDBC remained politicized and vengeful.30
In the face of growing opposition from Prime Minister Allawi, other IGC members and U.S. military commanders, the CPA withdrew its approval of the HNDBC in June 2004 and authorized the IGC to abolish and replace it. However, Allawi lost the January 2005 elections, and the HNDBC persevered. The process finally underwent reform in January 2008 with the passage of the Law of the Supreme National Commission for Accountability and Justice. It established a new Accountability and Justice Commission and introduced four main changes to the de-Baathification process. First, it established an independent appeals chamber. Second, it created a public-prosecutor's office to investigate allegations against individual former Baath party members. Third, the law made some mostly low-level former Baathists eligible for a pension. Finally, it allowed tens of thousands of low-level officials who had been dismissed to return to work without going through the formal appeals process.
While the Accountability and Justice Commission is a marked improvement in the management of de-Baathification, it remains problematic. By and large, the HNDBC was melded into it, including members who have been accused of using the process for political ends. The ICTJ, for example, argued that the process has not gone far enough to judge individuals based on their past actions rather than Baath party membership.31 It further called for greater accountability of commissioners. This is exemplified by the role the commission played in the 2010 Iraqi national elections. In January 2010, nine predominately Sunni political parties and 458 individuals were banned from participating in the March 2010 parliamentary elections. A month prior to the elections, the commission briefly lifted the ban before reinstating it. In the end, only 26 of 177 individuals who appealed the ban were allowed to run.32 The commission's credibility was further damaged by the fact that its leader, Ali al-Lami, was himself a candidate.33
Overall, the transitional-justice effort in Iraq has been botched. With the origins of most policies, particularly the most punitive ones, in the CPA, they smack of victor's justice. This perception is compounded by the relative impunity U.S. forces enjoyed after the invasion. Since the Iraqi government resumed authority in mid-2004, there has been relatively little improvement. The IST and de-Baathification have been politicized and lack broad credibility. As such, they have fomented further tension rather than promoted peace, let alone reconciliation. These measures also do comparatively little for victims. The CPA and the TNA studied potential reparations options. However, it was not until late 2005 that the Iraqi parliament approved measures to establish the Political Prisoners' Foundation and the Martyrs' Foundation (for those killed by Saddam Hussein's government) to manage reparations for these two groups of victims.
Finally, there has been periodic talk of a truth commission.34 The idea is attractive because it could potentially provide a broader picture of the brutality of Saddam Hussein's regime and the violence and chaos that followed the 2003 U.S. occupation. However, while the idea has merit, a truth commission requires administrative and fiscal capacity as well as security, three things the Iraqi government has failed to deliver thus far.
ALGERIA'S MANUFACTURED AMNESIA
Algeria was ravaged by violence and terror after multiparty elections that were set to be won by the Islamic Salvation Front (Front Islamique du Salut, FIS) were cancelled in 1992. The military declared a state of emergency and instituted a five-member High Council of State to take power.35 The FIS was banned. Foiled at the ballot box, some FIS members took up arms against the government. Increasingly, the insurgents also targeted civilians they perceived as backing the government. For its part, the government, along with militias it had armed, committed massive human-rights violations in an effort to put down the rebel movement. Although the level of violence has fallen dramatically since the 1990s, and two amnesties have been offered to the Islamists in a bid to coax them to lay down their arms, violence and human-rights abuses continue. Official estimates put the number killed in the government's battle against the Islamists at between 150,000 and 200,000.36
Following the return to civilian rule in 1999, the government embarked on an amnesty policy in an attempt to curb the violence. New Algerian President Abdelaziz Boutleflika proposed the Civil Harmony Law, which was adopted by parliament and later approved in a national referendum. The law provided immunity from prosecution for all armed rebels who surrendered within six months of the law's entering into force, which occurred on July 13, 1999, and made a full disclosure of past behavior. Individuals who had committed particularly heinous crimes — murder, rape, violence that led to permanent disability, bombings of public places — were ineligible for the amnesty, though they could receive reduced sentences by coming forward.
At the provincial level, probation committees were established to judge whether individuals should be granted amnesty. The commissions generally operated opaquely and appear to have done little actual investigation of individual stories.37 Presidential Decree 2000-03, issued on January 10, 2000, provided even more generous terms. Individuals from any organization who laid down their arms were granted full amnesty and blanket immunity from prosecution. An estimated 5,500 Islamist fighters took advantage of the measures, but no official figures have ever been released.38
Under pressure from victims and human-rights groups, the Algerian government appointed a 43-member National Consultative Commission on the Promotion and Protection of Human Rights in September 2003. The commission was given a mandate to help "appropriate authorities undertake all necessary measures to find the persons declared as 'disappeared' and to proceed to identify any bodies that are found."39 In March 2005, the commission gave the government a report concluding that government forces were responsible for over 6,000 disappearances. However, it did not investigate the cases. The commission had been given no power to compel cooperation by government officials or to subpoena documents.40 Moreover, it concluded that the disappearance cases were not the result of official government policy, but the behavior of rogue elements.41 To date, the government has not released the commission's report. The commission reviewed over 13,000 claims from families of disappeared individuals who were eligible for compensation of up to 1 million Algerian dinars (U.S. $9,058.94).42 It is unclear how many eventually received compensation, but Tlemçani reports that no more than 50 million dinars in compensation had been issued as of 2008. Victims' groups have been thwarted in their attempts to promote a more genuine truth-seeking process.43
In 2005, the government tried again to entice individuals to leave the insurgency. Bouteflika called a referendum on his Charter for Peace and National Reconciliation. The charter again offered immunity and clemency to Islamist fighters and measures for Islamists who had lost their jobs in the 1990s. In addition, it absolved government forces and armed militias from responsibility for human-rights abuses. While denying government responsibility for thousands of disappearances that had taken place since 1992, the charter proposed recognizing victims' suffering and promised compensation. Nearly 80 percent of voters participated in the September 2005 referendum, over 97 percent of whom supported the plan. The president promoted the charter as the only effective way to foster economic and social development in Algeria. Not everyone agreed. The Socialist Forces Front and the Rally for Culture and Democracy, the two main opposition parties, boycotted the referendum. Victims' groups and human-rights activists also opposed the amnesty.
Ordinance No. 06-01 of February 2006, which implemented the charter, substantially broadened the proposal contained in the referendum. In particular, it provided blanket immunity for security forces and government-sponsored militias. In addition, it extended eligibility for the amnesty to members of armed groups who had committed murder and acts of violence that led to permanent injury. Only individuals who had committed massacres, rape or public bombings were excluded. Approximately 300 more fighters surrendered under the terms of this amnesty, and about 2,200 others were released from prison.44 To further reinforce the government's desire to put the past behind it, the decree made it a criminal offence to discuss the issue of disappearances in a way that would "undermine the good reputation of [state] agents who honorably served the country or to tarnish the image of Algeria internationally."45
Since civilians returned to power in 1999, the Algerian government has been more forthcoming in acknowledging that massive violence occurred during the 1990s, but it continues to deny official responsibility. As a 2009 Amnesty International report describes, "Algerian authorities continue to argue in national and international forums that security forces and state-armed militias demonstrated great patriotism and even heroism and made invaluable sacrifices in the face of terrorism that threatened to destroy the nation."46 The amnesty processes have not been transparent and have not involved victims' groups. The government claims that most of the disappeared were not killed by government forces but actually joined the Islamist insurgency.47
Families of disappeared individuals have filed hundreds of complaints in Algerian courts, but neither further information nor accountability has been forthcoming.48 Although their numbers are diminished due to deaths, amnesties and moves to continue jihad elsewhere in the world, if anything, Islamist forces have been further radicalized by continued repression and impunity — as is evident from the emergence of Al-Qaeda in the Lands of the Islamic Maghreb. The al-Qaeda affiliate's presence also has muted international criticism of the Algerian government's transitional-justice policy. In February 2011, the government lifted the 19-year state of emergency in response to public protest and recently held flawed elections. However, if precedent is any guide, these limited steps will not be a prelude to accountability for past abuses.
MOROCCO'S TRUTH-SEEKING EXPERIMENT
Morocco produced the first truth-commission experiment in the Arab world. Like Iraq's transitional-justice activity, the workings of the Moroccan Equity and Reconciliation Commission (Instance Equité et Reconciliation, IER) received extensive coverage by Al Jazeera and other regional news outlets. In many respects, the IER has much to recommend it. The commission was granted significant resources and was led by a set of credible and capable commissioners. Nonetheless, the unique circumstances under which it was created may limit its applicability elsewhere. The IER was established after the dynastic succession of King Mohammed VI, so it was at least partially intended to legitimize the new regime. Moreover, the investigation avoided recent human-rights abuses and Morocco's thorniest human-rights problem, Western Sahara.49 Finally, those interested in holding perpetrators accountable for past human-rights violations in Morocco have thus far been disappointed.
Although the IER helped mark a break from King Hassan II's reign, it was not a complete shift in human-rights policy. In his final years, some initial measures were taken to address Morocco's history of human-rights abuses, most notably the Independent Commission of Arbitration. Following the succession of King Mohammed VI on January 7, 2004, the Moroccan government accepted the recommendation of the king's Advisory Council on Human Rights (CCDH) to establish the IER and, within a few months, the legal framework for it was crafted. The IER was made up of 17 commissioners from a variety of backgrounds, including several lawyers and journalists, a physician and a historian. The commissioners were widely respected and included victims and human-rights activists among their ranks; most had a history of human-rights activism. Throughout its work, the IER consulted with political parties, unions and other civil-society groups in order to ensure its work was relevant and legitimate.50
The IER was given a daunting task: to investigate human-rights violations by government forces that occurred between Morocco's independence in 1956 and the creation of the Independent Commission of Arbitration on August 16, 1999. The IER's mandate called for it to establish the facts about past human-rights abuses. In addition, it was to serve an educational function by helping the country learn from its past. Through its investigation, it also was charged with facilitating victim healing and reconciliation. Finally, the IER was to serve as a mechanism for providing compensation for victims. The statute establishing the commission defined victims narrowly, limiting its investigation to forced disappearances and arbitrary detention. The government asked the commissioners to do all of this in just under two years.
To fulfill its mandate, the IER decided to establish three separate units: Investigations, Reparations, and Research and Study. The Investigations Unit conducted interviews of witnesses and collected evidence around the country in order to shed light on past human-rights violations. In the course of its investigation, the IER identified nearly 600 people who had "disappeared" during the period. It found that an additional 300 people had been killed by government troops during anti-government protests over the years. A further 174 had been murdered while being arbitrarily detained by the government. The IER statute required government officials to cooperate with the commission, but the IER's final report states that it did not receive full cooperation.
The commission held seven public hearings in different locations around the country, which were broadcast on television and radio. Individuals who volunteered to participate in public hearings were briefed on rules of conduct, including a prohibition on naming alleged perpetrators. They also received psychological support both before and after their appearance. A final element of the IER's work was the staging of several televised roundtable discussions of issues related to Morocco's future political, legal, economic and cultural development. Overall, the IER's public hearings have been credited with promoting significant public discussion regarding human rights and Morocco's past.51
The Research and Study Unit conducted several studies designed to enhance and provide context to the individual abuses examined by the Investigations Unit. For example, it developed relationships with civil-society organizations to allow the IER access to their documentation of human-rights abuses. The unit also organized research colloquia. Finally, the Research and Study Unit consulted with global transitional-justice experts, including the International Court of Transitional Justice (ICTJ) and veterans of South Africa's Truth and Reconciliation Commission, to learn from other countries' experiences.
The Reparations Unit provided a range of goods and services designed to assuage the harm suffered by victims. Before the IER's end, the Reparations Unit heard nearly 17,000 claims. In total, the IER recommended monetary compensation for nearly 10,000 individuals. In addition, it established a unit to provide medical and psychological care for victims and recommended the establishment of a long-term medical program. Moreover, the Reparations Unit established relief for those who had lost their jobs as a result of government repression. The IER ultimately recommended the professional rehabilitation of nearly 2,000 victims. The large number of claims is remarkable, as victims had only one month early in the commission's work in which to apply for reparations. The Reparations Unit hired over 100 temporary staff to manage the flood of cases.52 The process had the benefit of providing the IER with needed information for its investigation and facilitated a more timely response to victims' needs. However, the brief window of opportunity gave victims little time to reflect on such a potentially re-traumatizing course of action.
On November 30, 2005, the IER submitted its final report to the government. In a speech two weeks later, King Mohammed VI ordered the report's public release. He further pledged to implement the IER's recommendations. Two months prior to the IER's conclusion, the commission held a three-day public National Forum to discuss its draft reparations program with hundreds of government officials and civil-society representatives.53 Ultimately, the government gave IER reparations a budget of $50 million-$70 million to be split among the victims.54 In early 2007, the government began making payments to victims through the CCDH.
The IER put forward several other recommendations in its final report. For instance, it urged significant economic-development assistance for regions in which past human-rights violations were most common. Second, the IER called for the decommissioning of former detention centers, which is in progress. Third, the commission recommended constitutional reforms to specify Moroccans' fundamental rights and freedoms. Fourth, it suggested institutional reforms to help prevent future human-rights abuses. In particular, the IER recommended a stronger, more independent judiciary and greater oversight of the military. Fifth, the IER recognized that it should not be the final word on past abuses and called on the government to investigate unresolved cases. Finally, it pointed to the need to ensure that the commission's records remain accessible in order to encourage ongoing public discussion.
The IER is viewed in different ways by observers, either as a democratic initiative or as a public-relations exercise for the new king.55 Human-rights groups were critical of the IER's mandate, which forbid it from identifying perpetrators. One group actually published its own list of alleged torturers to fill the void. Civil-society groups also chided the IER effort because, due to the narrow set of human-rights abuses it was authorized to investigate, the scope of human-rights violations in Morocco was vastly underestimated.56 Further, the government responded slowly to the IER's recommendations.57
Although the reparations program is up and running, the government initially did a poor job of explaining it to the public. Following a June 2009 visit, the UN Working Group on Enforced or Involuntary Disappearances concluded that, while some recommendations had been implemented, many remained unaddressed.58 Progress in implementing IER recommendations has continued. In early 2010, CCDH president Ahmed Herzenni stated that all IER recommendations had either been implemented or were in the process of being implemented.59 Nonetheless, at roughly the same time, Amnesty International issued a report that was much more pessimistic about the future of IER recommendations and the ability of the Moroccan government to improve its human-rights practices.60
From the perspective of seeking accountability for human-rights abuses and promoting the contemporary protection of human rights, activists and victims' groups have tended to be dissatisfied with transitional justice. While it is not too late for Algeria, Iraq and Morocco to salvage benefits from their experiences by reforming ongoing processes, following through on transitional-justice commitments and creating new processes with greater legitimacy, the prospect is likely to diminish with time, absent significant political change. Nonetheless, these three countries provide valuable lessons to others in the region regarding reasonable expectations for transitional justice as well as potential pitfalls. Given the ongoing unrest around the Middle East, this is more than an academic exercise.
In transitional situations, trials are often promoted for their ability to provide justice for victims, deter human-rights abuses and promote the rule of law. Yet, in the absence of a genuine political transition, perpetrators in Algeria and Morocco largely remain in positions of authority and continue to enjoy impunity. Similarly, in Egypt and Tunisia, some top officials of the anciens régimes, including former presidents Mubarak and Ben Ali, respectively, have been tried, but many others continue to be politically influential. Indeed, many current and former officials hope that these limited trials will satisfy popular demand for justice and protect themselves from punishment. Studies of the impact of transitional justice often fail to account for who is or is not being prosecuted. At the same time, trials that appear vindictive and target particular groups, as in Iraq, also send the wrong message and increase intergroup tensions. Several countries in the region pose similar risks. Libya's civil war took on tribal overtones, and the summary execution of Muammar Qadhafi and other former officials, as well as the poor condition of the judiciary, led many observers to despair of Saif al-Islam and others obtaining fair trials. Moreover, the political and economic dominance of minority religious groups has been the subject of protests in Bahrain, Syria and Yemen. Should these governments be overthrown, there is a risk of retribution becoming politicized, as in Iraq. To provide justice, courts need to be independent, have credible rules and procedures, and be staffed with adequately trained personnel. However, many judiciaries in the region are routinely criticized by global human-rights NGOs and U.S. State Department reports for being subject to political manipulation. As such, it is doubtful that domestic courts will be able to produce fair and credible justice for past abuses. Yet, studies of impact generally assume that trials are conducted in a free and fair manner. Even when objective observers judge this to be the case, certain factions may disagree.
Similarly, the Iraqi experience with de-Baathification demonstrates the risk of applying vetting procedures without adequate safeguards. Punishing individuals for group membership rather than actual behavior is unfair. The result in Iraq was that many former Baath party members joined the insurgency. The rapid military advance of the Islamic State of Iraq and the Levant (ISIL) across Iraq in early 2014 was a result of the continued marginalization faced by Sunnis 10 years after the U.S. invasion.61 Reprisals against tribes once loyal to Qadhafi indicate that, were vetting applied in Libya, politicization would be a real risk. The fact that Libya's Political Isolation Law was approved in May 2013 by a parliament under siege by armed militias was an inauspicious beginning. Vetting procedures need to be conducted in a fair and transparent manner to be effective. As such, in countries where there are sectarian or tribal divisions, procedures need to be mutually agreed upon and co-managed to reduce the perception that vetting measures are designed for revenge.
Truth commissions can uncover important information about past abuses if given adequate powers, resources and cooperation. To be effective, truth commissions must have adequate resources and access to records and other evidence. A key concern in many transitions will be preserving and protecting government documents. Witnesses also must feel sufficiently secure to be willing to participate. To have a more substantial impact, truth-commission investigations must prompt further change through recommendations such as institutional reform, the creation of other transitional-justice mechanisms, and public discussion of the country's past. Without prosecution and reparations, victims often find the experience wanting.
Truth commissions are more likely to have a positive impact if they are implemented in countries that develop stronger democratic institutions and more robust civil societies that can press for change. To date, commissions established in the wake of the Arab Awakening in Tunisia and Bahrain have dealt only with abuses surrounding protests in 2011, not the deeper history of repression that gave rise to dissent in the first place. Morocco's experience suggests that truth commissions created in the absence of real democratic transformation may produce some modest benefits in promoting human rights, and governments may magnanimously provide some reparations. Nonetheless, it seems unlikely that demands for justice and accountability will be wholly satisfied by truth commissions alone.
Reparations are a key need of many victims. They represent a material or symbolic recognition of past suffering. Oil-producing countries, in particular, possess the resources to undertake substantial reparations programs. More symbolic measures, such as days of remembrance and official apologies, may help to heal social rifts and contribute to lasting peace. Impact literature has had relatively little to say on reparations. Anecdotally, in the absence of the investigation and prosecution of human-rights abuses, reparations are often viewed as the price of silence. Moreover, particularly for any reparations program aimed at individual victims, an adequate institutional infrastructure is needed to make judgments regarding eligibility and levels of compensation. Such bodies should be constructed in a transparent and inclusive fashion to increase satisfaction. These faults are partially responsible for limiting the effectiveness of reparation schemes in Algeria and Morocco.
Finally, amnesties may have a place in facilitating peaceful political transitions. Rulers in the region may be more receptive to ceding some power and permitting more democratic reform if they feel secure from punishment, as Yemeni President Ali Abdullah Saleh did in February 2012. Yet, promises may not last, as Saleh's return to politics exemplifies. Similarly, one of the stumbling blocks in a political solution to the Syrian civil war is that top government officials likely would not trust any promise by a transitional regime to forgo punishment. Amnesties can be constructed so as to minimize tension with the pursuit of justice by being established through as democratic a means as possible and by being granted on an individual basis.62 However, unless they are restricted to lesser crimes, applied individually, and in a manner that encourages the uncovering of information on the fate of victims, amnesties can serve to entrench impunity and invite vigilantism. Furthermore, international norms of accountability and the prospect of International Criminal Court (ICC) investigations and indictments make it more difficult to promise amnesty. Lastly, the case of Al-Qaeda in the Islamic Maghreb suggests amnesties will not convince all radicals to stop fighting.
How countries in the Middle East deal with their pasts in the coming months and years will go a long way toward determining the chances for long-term peace, stability and democracy. Precisely what effect, if any, transitional justice has will be shaped by country-specific factors. The best role for the international community is one of support. Given the distrust of outside interference that has been generated by the history of international intervention in the region, pushing transitional justice more strongly risks a backlash. International NGOs should continue to support official and civil-society initiatives to pursue a transitional justice compatible with local circumstances, while pressuring governments to enact legitimate processes. Pressure from other states is likely to continue to be selective, reflecting the predominance of economic and geostrategic calculations over the consistent promotion of justice and human rights in the region. Outside interference and overbearing ICC action is more likely to create a nationalist backlash rather than promote accountability. Although unsatisfying to long-suffering victims, perhaps the best solution is prudence and patience.
1 For an overview of the evolution of transitional justice, see Ruti G. Teitel, "Human Rights in Transition: Transitional Justice Genealogy," Harvard Human Rights Journal 16, no. 69 (2003).
2 Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (University of Oklahoma Press, 1991).
3 See M. Cherif Bassiouni and Daniel Rothenberg, The Chicago Principles on Post-Conflict Justice (The International Human Rights Law Institute, DePaul University, 2008).
4 Hunjoon Kim and Kathryn Sikkink, "Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries," International Studies Quarterly 54, no. 4 (2010).
5 Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (United States Institute of Peace Press, 2010).
6 Priscilla B. Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions, 2nd ed. (Routledge, 2010).
7 Kim and Sikkink, "Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries."
8 Olsen, Payne, and Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy.
9 The UN High Commissioner for Human Rights has produced a series of transitional justice guides under the label of Rule of Law Tools for Post-Conflict States. In 2011, the UN Human Rights Council voted to establish a Special Rapporteur for Transitional Justice.
10 "IRAQ: The Rocky Road to Transitional Justice," IRIN News, June 28, 2006.
12 Miranda Sissons, Briefing Paper: Iraq's New "Accountability and Justice" Law (International Center For Transitional Justice, 2008).
13 International Center for Transitional Justice and Human Rights Center of the University of California at Berkeley, Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction (International Center for Transitional Justice, 2004).
14 Hanny Megally and Miranda Sissons, "The Botched End of a Thug," Daily Star, June 29, 2007.
15 Richard Hatch, "A Year of De-Baathification in Post-Conflict Iraq: Time for Mid-Course Corrections and a Long-Term Strategy," Journal of Human Rights 4, no. 1 (2005).
16 United Nations Office of the High Commissioner for Human Rights, Legal Needs Assessment Mission to Iraq Workplan (2003).
17 Statute of the Iraqi Special Tribunal, articles 10-14.
18 Working Group on Transitional Justice in Iraq and Iraqi Jurists' Association, Transitional Justice in Post-Saddam Iraq: The Road to Re-establishing Rule of Law and Restoring Civil Society — A Blueprint (2003).
19 Beth K. Dougherty, "Victims' Justice, Victors' Justice: Iraq's Flawed Tribunal," Middle East Policy 11, no. 2 (2004); Eric Stover, Hanny Megally, and Hania Mufti, "Bremer's "Gordian Knot": Transitional Justice and the U.S. Occupation of Iraq," Human Rights Quarterly 27, no. 3 (2005).
20 M. Cherif Bassiouni and Michael Wahid Hanna, "Ceding the High Ground: The Iraqi High Criminal Court Statute and the Trial of Saddam Hussein," Case Western Reserve Journal of International Law 39, nos. 1 & 2 (2006-07).
21 "Iraq: The Rocky Road to Transitional Justice," IRIN News, June 28, 2006.
22 Sharon Otterman, Backgrounder: Iraq Debaathification, 2005, http://www.cfr.org/publication.html?id=7853#p10.
23 All CPA Orders are available at http://www.cpa-iraq.org/regulations/index.html#Regulations.
24 This included the ranks of 'Udw Qutriyya (Regional Command Member), 'Udw Far' (Branch Member), 'Udw Shu'bah (Section Member), and 'Udw Firqah (Group Member).
25 Robert Perito, Establishing the Rule of Law in Iraq: Special Report 104 (United States Institute of Peace, 2003), http://www.usip.org/pubs/specialreports/sr104.html.
26 John Hendren, "Ex-Baathists Play Crucial Insurgent Role, U.S. Says," Los Angeles Times, 2005.
27 The CPA endorsed the creation of the HNDBC in a subsequent order.
28 Otterman, supra note 23.
29 Ahmad Chalabi, "What Iraqis Want," Wall Street Journal, March 15, 2004.
30 Stover, Megally and Mufti, "Bremer's 'Gordian Knot': Transitional Justice and the U.S. Occupation of Iraq"; and Hatch, "A Year of De-Baathification in Post-Conflict Iraq: Time for Mid-Course Corrections and a Long-Term Strategy."
31 International Center for Transitional Justice, "Accountability and Justice Law," http://www.ictj.org/en/news/features/1466.html.
32 Carnegie Endowment for International Peace, "De-Baathification Decision Postponed until after Election Results," February 4, 2010; and Carnegie Endowment for International Peace, "De-Baathification Saga Verdict," February 25, 2010.
33 Marina Ottaway and Danial Kaysi, "De-Baathfication as a Political Tool: Commission Ruling Bans Political Parties and Leaders," Carnegie Endowment for International Peace, January 26, 2010.
34 The ICTJ produced a 2004 paper outlining a plan. See International Center for Transitional Justice, Briefing Paper: Toward a Truth Commission for Iraq (2004).
35 At the beginning of 1994, the High Council of State was dissolved and Lamine Zeroual became president.
36 "Up to 200,000 Killed in Islamic Insurgency since 1992," Associated Press, March 18, 2006.
37 Rachid Tlemçani, Algeria under Bouteflika: Civil Strife and National Reconciliation (Carnegie Endowment for International Peace, 2008), 7.
38 Amnesty International, "A Legacy of Impunity: A Threat to Algeria's Future," http://www.amnesty.org/en/library/info/MDE28/001/2009/en.
39 Human Rights Watch, "Algeria: Justice at Risk for Abuses Past and Present," http://hrw.org/english/docs/2005/06/22/algeri11201_txt.htm.
40 Tlemçani, Algeria under Bouteflika: Civil Strife and National Reconciliation, 8.
41 Elizabeth Bryant, "Analysis: Algeria's Reconciliation Plan," UPI, August 17, 2005.
42 Tlemçani, Algeria under Bouteflika: Civil Strife and National Reconciliation, 8.
43 "Algerian Police Break up Conference Seeking to Shed Light on Insurgency," International Herald Tribune, February 7, 2007.
44 Amnesty International, "A Legacy of Impunity: A Threat to Algeria's Future."
45 Tlemçani, Algeria under Bouteflika: Civil Strife and National Reconciliation, 9.
46 Amnesty International, "A Legacy of Impunity: A Threat to Algeria's Future."
47 Reuters, "Algerian Amnesty to Shield Military," AlertNet, http://www.alertnet.org/thenews/newsdesk/L21192175.htm.
48 Human Rights Watch, "Algeria: Justice at Risk for Abuses Past and Present."
49 The IER cancelled a scheduled public hearing on Western Sahara, the site of numerous human rights violations, saying it was not possible due to unrest. See Scheherezade Faramarzi, "Moroccans Split on Truth Commission Digging into Four Decades of Human Rights Abuses," Associated Press, http://news.findlaw.com/ap/p/56/05-13-2005/0c5d005a6baa910a.html.
50 "Reconciliation Commission Starts Consultations with Political Parties and Trade Unions," Arabic News, http://www.arabicnews.com/ansub/Daily/Day/041106/2004110620.html.
51 "Emotional Moments at Morocco's Rights Commission Hearings," Khaleej Times, February 4, 2005.
54 Pierre Hazan, "IER: Truth without Punishment," International Justice Tribune, January 23 2006.
55 "IER Wages Democratic Bet," International Justice Tribune, http://www.justicetribune.com/index.php?page=v2_article&id=3295.
56 "Morocco Truth Panel Details Abuse," BBC, http://news.bbc.co.uk/1/hi/world/africa/4536258.stm; and Scheherezade Faramarzi, "Moroccan Truth Commission Questioned," December 19, 2005.
57 John Thorne, "Morocco's Truth Commission Undermined by Government Lethargy, Rights Groups Say," Associated Press, July 17, 2006.
58 United Nations Office of the High Commissioner for Human Rights, "UN Working Group on Enforced or Involuntary Disappearances concludes visit to Morocco," June 26, 2009, http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=9144&L….
59 Libération, "Le processus de suivi des recommandations de l'IER s'est achevé: 'C'est à l'etat et à la justice de prendre le relais,'" http://www.libe.ma/Le-processus-de-suivi-des-recommandations-de-l-IER-s….
60 Amnesty International, "Broken Promises: The Equality and Reconciliation Commission and Its Follow-up," (2010), http://www.amnesty.org/library/info/MDE29/001/2010/en.
61 Barbara Slavin, "Obama Administration Uses Anbar Crisis to Push Maliki on Iraqi Oil Law," Al-Monitor, January 9, 2014.
62 Louise Mallinder, "Can Amnesties and International Justice be Reconciled?," International Journal of Transitional Justice 1, no. 1 (2007).
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