ICTJ in the News

August 4, 2006

An Interview with Hanny Megally

All Africa

Hanny Megally has more than 26 years experience in the field of human rights in the Middle East and North Africa. He headed the Middle East Research department at the International Secretariat of Amnesty International. Subsequently, he ran the Ford Foundation's social justice programme in the Middle East from the Foundation's Cairo office, and from 1997 to 2003 he was the executive director of the Middle East and North Africa Division of Human Rights Watch.

Morocco was the first truth commission in the Arab-Islamic world. Do you think this is the way of the future, or do you think the Algerian reaction of banning any investigation into abuses is more likely to continue?

The Moroccan experience is one that is now being looked at by several countries in the Middle East. Bahrain has sent officials to speak to the Moroccan truth commission and they are considering similar steps. It is too early to say where that will go.

Is a truth commission alone adequate or do these countries also need to make criminal prosecutions?

That remains to be seen. Each country has its own specificity as to how it will go about addressing a legacy of past abuses. With the Middle East and North Africa, impunity has reigned for the last 40 to 50 years. Any effort to break that wall of silence has to be seen as a positive step forward.

People may start to complain about truth with no accountability or reparations with no truth: that could happen. The danger that we are seeing in Algeria, is that those in charge may think that by having some form of compensation, that this may be sufficient, that they are now able to turn the page.

The process in Morocco began in the 1990s with the release of many of the disappeared, followed by some legal reforms that led eventually to the establishment of a compensation commission towards the end of the 1990s. Each step was presented as the last step before turning the page. The compensation process paved the way for the truth commission. There is no reason not to think that other steps, whether further reforms, the removal of those responsible for abuses from public office or even prosecution, have been completely ruled out.

One step leads to another depending on the situation the country is in, the political will and also the pressures from within and outside.

When I see another country approaching the first step I think that this is a process which may begin.

This is also true in Lebanon. Since the civil war, much has been left buried; there are 15,000 or 16,000 people missing. There has been no accountability for the abuses that occurred during, or even since, the conflict. The fear there is that investigations could re-ignite the civil war.

Do you think there is a time for truth commissions and that you can go in too early?

Timing is of the essence. It is not for experts from the outside to dictate when a process of transitional justice should take place. It is up to those in the country to make the assessment. Though sometimes if they do not know the subject matter it may be more difficult for them to judge. That is where an institute like the ICTJ can be of help.

Morocco is a good example of where we brought in [not only] experts who conducted a comparative analysis, but also practitioners, from countries around the world to share their experiences.

Bahey El Din Hassan, the Director of the Cairo Institute for Human Rights Studies, has said that Arabs are averse to the human rights framework because western governments use its rhetoric when defending policies such as starvation of the Iraqi people, through to the strictest economic blockade in history, and the impunity given to aggressive acts by Israel. Do you agree with his assessment?

That is a widely held perception. It relates to what is perceived as double standards in how western governments and the US are seen preaching human rights in some countries and turning a blind eye in others.

The other problem is the existence of Israel within the Middle East context and the way the rest of the world has dealt with Israeli human rights violations. It is often seen to be above the law, and there is an impotence with respect to how the Human Rights Commission directions or UN Resolutions are applied there. In other countries, there may be stronger language or even action - as we saw in Iraq - taken by the international community.

If you go to Egypt and you raise human rights violations there, the first response will be "what about Israel and what is happening in Iraq?"

However, 30 or 40 years ago many governments would not meet with human rights monitors or would not allow a domestic human rights movement to come into being. There has been a growth in the Middle East and North Africa in domestic human rights. We have seen a much greater acceptance of international human rights monitoring by the governments.

Human rights has become a political ball which can help in some areas but obviously can be a handicap in other areas.

On the positive side, if governments have taken up the human rights terminology, that means it is also possible to hold those governments to those standards. Whereas the debate 30 years ago was based on the idea that human rights was a foreign concept and was perhaps seen as the west trying to impose its own standards, now they cannot say that. If Middle Eastern governments are using the language of human rights to criticise what is happening in Iraq or the Occupied Territories, they themselves have to comply with human rights standards.

Are human rights fundamentally a western concept?

No. If you go back though Arab and Islamic literature through the centuries, although the terminology may be different, you will see that much has been written about the standards of justice, fairness, impartiality, and how people behave towards each other.

The Arab states were involved from the very beginning in the UN Declaration on Human Rights. One of the key authors was a Lebanese lawyer.

But there was some controversy at the time as to whether the Declaration was compatible with Shari'a law?

That has always been part of the issue, particularly with respect to freedom of religion, treatment of women and some of the harsher punishments under Islamic law. In other areas of fair trial, torture and detention, or social and economic rights, there is little contradiction and indeed much complementarity.

So you believe that Shari'a law and human rights can coexist meaningfully.

Shari'a law can be interpreted in different ways.

Dr An Na'im speaks of an ijtihad of the Sunna. Do you think that is necessary to make the two compatible?

I think it is a question of who is doing the interpreting. For a long time governments have been doing some of the interpreting when it has suited them. Or it has been left to scholars who may have shied away from revisiting or re-interpreting. Certainly women have had very little to do with interpreting Islamic law. Nowadays you see there are prominent legal jurists who are women whose voices have yet to be heard.

As with every aspect of Islamic law, it is a question of interpretation and application. In Saudi Arabia, the interpretation and application of Islamic law will be very different to that in Tunisia.

There is room for revisiting interpretations and bringing them up to date.

So Shari'a law is evolving, not static?

Yes. Part of the problem has been the pressure from minorities not to re-interpret or discuss Islamic law. Historically there have always been re-interpretations to adapt to the current situation, to avoid being stuck with one interpretation that was made hundreds of years ago.

The Iraqi Special Tribunal (IST), despite its questionable foundation, has been set up in Iraq, to try Iraqis in Arabic. What do you think of the IST?

The biggest problem has been the security situation and whether this type of process can happen there now given that the conflict is continuing.

We would have preferred to have a court with more international involvement. The concern was that the Iraqi judicial system, after 30 or 40 years of corruption, oppression and nepotism, would struggle to mount trials on such major issues as crimes against humanity, war crimes and genocide.

We are seeing that play out now. However, the people who are involved are trying to learn very fast on their feet and in the glare of publicity. It is a tall order.

The advantage of holding a trial in Iraq and in Arabic is that it should be accessible to the victims and the population at large. It is accessible in that it is televised. But it is not accessible in that it is happening within the Green Zone with limited access to anyone in Iraq.

Iraqi law stipulates that anyone found guilty of a crime will have their sentence carried out within 30 days of appeal being denied. Do you see anything sinister in Saddam Hussein being tried for a relatively minor crime which will avoid other, perhaps politically embarrassing, cases being tried?

From the beginning, the tribunal has said that it will try Saddam Hussein and those around him for a number of offences and will have as many as 11 separate trials. They are starting with this one as it was the first to have its investigation concluded.

The next one might well be the Anfal campaign and the one after that the intifada in the south and then maybe the Barzani clan. They have already identified the cases. Whenever that issue has been raised with the tribunal, they have always said that he will be held on several counts and in several chambers. They have said there is no danger that if convicted in this first trial that he will be executed.