Q&A: Justice in the Arab World

For a society to overcome a history of authoritarianism or conflict and become a fully-fledged democracy, it must confront first confront its past.

The International Centre for Transitional Justice (ICTJ) is a New York-based organisation the specialises in helping guide countries around the world through this delicate process.

Al Jazeera’s Yasmine Ryan caught up with David Tolbert, the organisation’s president, in Doha, Qatar, to discuss how transitional justice can play a key role in newly democratic countries in North Africa and the Middle East.

Yasmine Ryan: You joined the centre in March 2010. With the ‘Arab Spring’ happening months after, have the issues of justice related to that taken up a lot of your focus?

David Tolbert: Certainly the Arab Spring has led us to work in a number of countries where we did not work before. But the ICTJ is a global organisation, and we’ve worked on every continent in post-conflict and post-authoritarian societies.

We had worked in Morocco, for example, on their commission and their reparations programme extensively. We had a programme in the Palestinian Territories, and we had a Middle East and North Africa programme in place.

So the region wasn’t new to us, but of course the openings provided by the Arab Spring meant that we’ve geared up a great deal. We’ve worked extensively in Tunisia. We held a number of conferences and have been working closely with the government there. In Egypt, Libya, Yemen. We’ve had a long-term presence in Lebanon, working on the disappeared.

We work all over the world, so this is a part of the world that were quite focussed on now.

YR: And you focus mainly on justice within the state, or in relation to international institutions like the International Criminal Court (ICC)?

DT:  With transitional justice, criminal justice is an important part of that. But we also work on truth commissions – the truth-telling process – along with reparations programmes and institutional reform.

“At the heart of transitional justice is the re-establishment of civic trust between the citizens and the state, because that’s a bond that’s been broken through human rights abuses and conflict.”

We see these four measures as working together in a comprehensive way. A society that’s going through a transition really needs to confront the past – its legacy of human rights abuses, authoritarianism, conflict. It is working through these measures in a very integrated and holistic approach, working very closely with civil society. I would say the focus is very much in the countries.

The ICC is obviously a very important step, but at the heart of the Rome Statute (the treaty establishing the ICC) is the idea of complementarity. That is, the [ICC] is really a court of last resort. So even in terms of criminal justice, we’re focused much more on the national level. We’re working with the national processes … with civil society and with those governments that have the necessary will to see that justice is done on the ground.  

YR: Going by your many years of experience, how important is it to get justice right in the very early stages of a transition? Countries like Chile, for example, are still grappling with these issues decades after their transition.

DT: I think you touch on a very important point, and it’s something that we emphasis in our work. These transitions are something that evolve. Of course you want to get it right from the very beginning, but the political dynamics in a country will change over time.  

Frequently, it’s difficult to pursue criminal justice or criminal prosecutions in the very early stages of the transitional. In a lot of instances, a truth commission will be established – there have been some 40 truth commissions established around the world – and they will look at testimony that is much more systematic than a criminal justice process regarding the root causes of the abuse, really looking at systems and analysing them. That frequently leads to criminal prosecutions, uncovering evidence and awarding reparations. Sometimes they will make recommendations for institutional reform.

Each situation is going to be different, and it’s really important that these processes are grounded in the country, linked to civil society.

At the heart of transitional justice is the re-establishment of civic trust between the citizens and the state, because that’s a bond that’s been broken through human rights abuses and conflict.

Argentina has been through a long transition, if you look back to the very repressive situation in the 1980s. Today it’s a democratic society, but we’re only getting to some of the most serious trials of the perpetrators now.
It’s an evolving process. It will evolve over time, so hopefully we will see more accountability, not less.

YR: You mentioned the importance of re-establishing trust between populations and their governments. Right now, if you look at Egypt, Tunisia or Libya, many people seem very frustrated with the transitional governments and the mistrust is still very much there. Do you think those governments have done enough on the justice front to investigate the past?

DT: I do think it is still early in the day. I was in Tunisia at the launching of the transitional justice dialogue. There’s a proposed law proposed and moves to establish a truth commission. I wouldn’t want to sit in judgement.

Are we ever satisfied at the pace [of transitional justice]? No of course not. But we do have to give it some time to evolve. I wouldn’t want to make any categorical judgements at this stage.

YR: The security forces that committed crimes and torture are still in place in Egypt and Tunisia. You probably followed the recent rape case in Tunisia that raised a lot of questions about why that culture [of police impunity] hasn’t changed. How difficult is it for governments to strike a balance between not undermining security forces, and achieving justice?

DT: It’s one of the more complicated issues, and it has particular nuances in the Arab Spring. We’ve been involved in vetting programmes and it’s important that human rights abusers are not in the security forces. If you have the rape victim going to the police station and seeing her abuser, or someone who has enabled that abuse, that doesn’t lead to civic trust.

These steps are difficult to implement. There are some interesting aspects in the Arab Spring countries, with issues of corruption in addition to human rights abuses that don’t necessarily fit the same pattern as other countries. It’s an aspect we’re providing expertise to governments on, but to be honest with you, it’s one of the more difficult issues.

How do you move from having the police and the military transition to [institutions] that citizens can really trust? You really have to have the commitment of the government to really address this if you’re going to establish civic trust.

YR: Tunisia recently extradited the former Libyan prime minister, raising big tensions even between the president and prime minister over the human rights implications of this decision. Is it common to have such differences over transitional justice issues?

“One of the important points to be made here is that yes, there was an international intervention, but if the international community makes an intervention, there should be a commitment to follow through.”

DT:Particularly in the early and medium stages of transition, where you have holdovers from the old regime and some who are less committed to justice and to taking the necessary steps for that to change, there are bound to be conflicts, there are bound to be differences.

You’ll have re-entrenchments and steps in the wrong direction as well. That’s one of the reasons we try to stay engaged with civil society. Ultimately, they have a really important voice.

What we try to do is to provide technical assistance on all these mechanisms, but we try to remain really anchored in civil society, because they are really the weathervane. If the victims don’t have confidence in these institutions, the transition is not going to be successful.

YR: In Libya, the justice system is still basically non-functional and there’s chaos in the government. How optimistic do you feel about the direction in which Libya is going right now?

DT: Well you do have a UN mission and there’s work going on. But at this stage, there’s a great deal to be done. I wouldn’t want to express a lot of optimism at this stage.

We’ve been on a number of missions, we’ve provided a good bit of assistance to both the UN international authorities, but we’re really at the beginning of the process. This is a situation where you essentially don’t have any institutions. They are being built from the ground up.

This is a longterm rebuilding process which needs help not only from institutions like ours, but from the international community as a whole. One of the important points to be made here is that yes, there was an international intervention, but if the international community makes an intervention, there should be a commitment to follow through. It shouldn’t be an intervention and the leaving. We’ve seen that entirely too much.

Part of what we try to do is to have a policy impact at the level of the United Nations to ensure that that doesn’t happen.

At the end of the day, institutions like ours have a limited impact. There needs to be a political commitment from the countries that initiated this action to ensure that the systems begin to be rebuilt, or be built from the ground up.

Follow Yasmine Ryan on Twitter: @YasmineRyan