Address by David Tolbert to the National Forum on Launching the Dialogue on Transitional Justice in Tunisia


Address by David Tolbert, President of the International Center for Transitional Justice (ICTJ) to the National Forum on Launching the Dialogue on Transitional Justice in Tunisia

Tunis, April 14, 2012

Your Excellencies President of the Republic, Chairman of the National Constituent Assembly, Prime Minister, Minister Dilou and other Ministers, Dear friends and colleagues from Tunisia and other countries,

It is an honor and a privilege for me to be with you for this important national conference. One year ago, on this exact same date, just three months after the Tunisian people impressed the world by peacefully ending decades of repression, I had the pleasure to speak at a conference ICTJ organized here in Tunis together with the Arab Institute for Human Rights, the Tunisian League for Human Rights and the UN Office of the High Commissioner for Human Rights. It was an important and lively debate on how to address the legacy of the past and move forward.

Since then, I am pleased to see the progress that has taken place in Tunisia, which sets an example in the region. There are of course the political changes that have led to the democratic election of the National Constituent Assembly and the formation of a new government last December with the first, I believe in the world, Ministry of Human Rights and Transitional Justice.

In the area of transitional justice important initiatives have been taken, with the establishment among other bodies of the Commission of Inquiry into Human Rights Violations during the Revolution, with which we had the privilege to work—its report is due shortly—and the National Fact-Finding Commission on Embezzlement and Corruption, which completed its report last November and has now been replaced by a permanent agency to fight corruption. The work of these two commissions, together with the evidence gathered and the proposals being formulated by civil society groups, will certainly inform the national dialogue being launched today and be of great assistance to future transitional justice mechanisms.

In this context the convening of this conference is very much welcome. Indeed, a dialogue and consultation process that precedes and informs the adoption of a transitional justice strategy is critical to the transitional justice process per se. It helps build a sense of ownership, trust and credibility in the process.

ICTJ is very pleased to have been invited to provide its contribution. In this spirit, let me share with you briefly some general points about transitional justice and then address some specific issues particularly relevant to Tunisia.

There are often misconceptions about what is meant by transitional justice. It is not a form of “soft justice” or an alternative to the normal mechanisms of accountability for human rights violations. It is about trying to apply the normal rules of justice and human rights in extraordinary circumstances. These circumstances can be, like in Tunisia, situations of major political change following large scale and prolonged violations, where the transition from the old repressive order to a new one needs to be managed in a way that secures stability as well as accountability.

The principal mechanisms of transitional justice are now well-established. They include criminal investigations and trials—as a former prosecutor in international courts I am particularly aware of the importance of bringing perpetrators to justice—as well as truth seeking; institutional reform, including through vetting processes; and reparations for victims.

Developments both in international law and in transitional justice practice over the last twenty years show that the question facing national authorities is not whether prosecutions should take place, but when, as the UN Secretary-General noted in 2004, and what other mechanisms are needed to ensure the maximum degree of justice for the abuses of the past in the most effective way possible for society. At the same time, in addition to recognizing the rights and dignity of individuals, the process of transitional justice aims at rebuilding the trust between the citizens and the institutions of the state which until recently have operated largely as tools of repression.

ICTJ has been working in transitional contexts all around the world for over ten years. We see our contribution as assisting governments and societies in devising their own specific solutions by providing advice based on our comparative global experience. Allow me to share with you some thoughts on what would be key components of a successful process of transitional justice, which I believe are particularly relevant to the Tunisian context.

With regards to prosecutions, one has to work out how the criminal justice system addresses decades of repressive abuse of citizens while at the same time addressing the day to day challenges of investigating and prosecuting ongoing crimes. This may require setting up prosecution units and/or chambers with specialist expertise—for example on serious human rights violations or corruption

Our Tunisian colleagues have denounced the instrumentalization by the previous regime of prosecutors and judges to silence dissent and facilitate corruption—while we also know that many Tunisian judges were at the forefront of the human rights struggle under the former regime. We are also aware of criticism that trials conducted immediately after the revolution were poorly handled. The role of the judiciary and the importance of ensuring fair trials in a transition is crucial, just as it is essential to examine the role of the judiciary in the previous period and drawing the necessary conclusions in terms of vetting of judges.

With regard to establishing the truth, as I said earlier, the work of the two commissions of inquiry is very important. It was a wise decision to dedicate one commission to focus on corruption and then to establish a permanent body to fight corruption.

I understand that there is much support for the establishment of a truth commission with a wider mandate and greater capacity then those two commissions. This would be a welcome development. Issues to decide in this regard will include for example what is a reasonable period to investigate; how to select the commissioners; what would be its authority to compel witnesses to testify and documents to be released; and other important procedural matters. I believe that in Tunisia you have the opportunity to innovate in this area and examine how best to address violations of economic and social rights as well as political and civil rights.

With regard to institutional reforms, these are a necessary condition for the state to regain the trust of its citizens and as a safeguard against repetition of past abuses.

Particularly urgent among the reforms is vetting, that is the process aiming at examining the record of public servants and removing those responsible for ordering or implementing abusive practices. In Eastern Europe after the fall of the Berlin Wall various states adopted processes to remove from the bureaucracy officials who had allegedly been involved in the repressive structures of communist states. In other countries, like El Salvador, more limited programs looked at eliminating the most notoriously abusive elements from the police force. The scale and focus of vetting programs will depend very much on the particular context. Of all the transitional justice mechanisms that are often referred to, vetting is in some ways the most complex. As we have seen in Iraq, trying to remove a whole bureaucracy in one swoop can provoke more problems than it might solve. Countries that have suffered long-term repression have to balance administrative survival with restoring credible institutions. Firing a few police officers or judges is not enough. There is a need for an overall, properly planned and fair process. We know this is a huge challenge but one that needs to be faced early on.

In terms of reparations, limited compensation measures were adopted last year, but there is a need to establish a reparations program that recognizes all victims and responds to both urgent and long-term needs. Victims in Tunisia like elsewhere have a right to reparations as well as to know who abused them.

For each of the mechanisms I have mentioned—prosecutions, truth seeking, institutional reform and reparations—there are significant technical, legal and logistical challenges. If there is one thing that we at ICTJ have come to have a strong view about, it is the importance of developing a coherent strategy about transitional justice initiatives. In many countries we have seen truth commissions established without discussing the implications for criminal prosecution policies, or processes regarding prosecutions, truth seeking and vetting being carried out in isolation and undermining each other when coordinated planning would have hugely improved the effectiveness of each mechanism. As a result while some individual mechanisms worked well the overall process of transitional justice did not and people felt let down.

One of the principal challenges facing the government is getting the balance right between proper planning on the one hand and keeping momentum in the desire to restore trust. If progress is too slow the public will lose faith. If it is rushed and not well planned it will lead to disappointment. A comprehensive strategy would help establish trust in the government by demonstrating it is addressing the past seriously. Such a strategy is also cost-effective, allowing the government and civil society to consider together the nature of the challenges it faces and setting priorities. Finally, it will help ensure that the various mechanisms reinforce each other.

I look forward to the Ministry of Human Rights and Transitional Justice facilitating the process of developing a coherent strategy, bringing together all of the relevant actors within the state and civil society.

One more point I wish to stress is that the process for developing a comprehensive strategy need also be fully inclusive, ensuring the participation of all aspects of society, specifically those who have been victimized or marginalized. As the government has indicated on several occasions, transitional justice cannot be decided by a majority and imposed on the minority. It needs to be the result of as wide a consensus as possible, within the framework of international human rights law and the international obligations of each state.

Let me say here that I am very impressed by the vitality of Tunisia’s civil society and the plurality of transitional justice projects and initiatives that have burgeoned since January 2011. ICTJ has had the honor to work in particular with the Independent National Coordination for Transitional Justice and the Tunisia Network for Transitional Justice. We look forward to working with others.

Previous transitional justice experiences have showed that top-down approaches have failed to bring the right responses to victims’ needs and concerns and to the society’s aspirations. It is reassuring that the government and National Constituent Assembly can count on such a dynamic civil society. We have seen in many countries around the world that success of transitional justice depends greatly on a strong partnership between government and victims’ groups, human rights NGOs, women’s associations, youth organizations, labor unions, bar associations, the media, the academic world, and, of course, political parties.

It is essential that women, who have played such a pivotal role in the resistance against repression in Tunisia and then in the popular uprising, have a central role in the transitional justice process that ensures that their rights are upheld. The adoption of the principle of parity in the October elections is a clear indication of the Tunisian society’s capacity to innovate in order to ensure a real and meaningful participation of women in the transitional justice process.

Other groups whose inclusion needs to be ensured include communities from the impoverished inland regions and minorities of all kind. Failing in this respect risks consolidating inequalities, or even creating new ones.

In conclusion, important lessons can be drawn from relevant experiences such as Peru—where last month ICTJ brought Tunisians together with Peruvian transitional justice practitioners—and many other countries. In this region, the experience of Morocco offers useful lessons with regard to communal reparations and gender justice.

However, Tunisia will develop its own transitional justice model taking into account its unique situation. The remarkable talents that Tunisia has in various fields are invaluable assets for the development of a successful transitional justice process. ICTJ stands ready to continue to provide its assistance as required.

As Tunisia sparked off what has become known as the Arab Spring, Tunisia has the potential to show the way and become a transitional justice model for the rest of the region and the world.

Thank you.