Transitional Justice in the Wake of the Arab Spring

Continuing waves of popular uprisings in Arab Spring countries over the past two years have given rise to the importance of transitional justice, where a successful democratization depends upon application of the principles of rights and fairness. This follows previous regimes’ involvement in systematic corruption, the grabbing of state resources of all kinds, particularly the looting of land and public and private property. This practice has been coupled with legislation to give it a veil of legitimacy to shroud the impact of numerous human rights violations, particularly economic and social rights. These impacts include the impoverishment and marginalization of entire communities for the benefit of the ruling class and its agents. (For examples, see the first issue of Land Times.)

Models and draft laws developed in the formulation of transitional justice processes and mechanisms since the Arab Spring have not proved to be responsive enough to the demands of the popular uprisings for justice, equality and equity and social reconstruction. They have not sufficiently considered the restitution of looted assets and the property of victims of the fallen regimes. Nor have they sufficiently taken into account the cultural specificities of their communities.

Tunisia’s draft transitional justice law has pursued a classic scenario. However, Tunisia exceptionally has established a special Ministry of Human Rights and Transitional Justice. The courts have resorted to a number of hasty and rash trials dealing with the crimes of the former regime, in general. Some have criticized that these trials were conducted contrary to the pursuit of justice and assignment of responsibility, without specifying certain crimes or the time period of the alleged acts.

While Libya`s attempt at a transitional justice law has seen the creation of mechanisms without genuine consultation with local stakeholders. That draft has generated transitional justice mechanisms in form, but whose method is based on tribal concepts of reconciliation, not prosecution. They lack the proper evidentiary standards to determine the truth of what happened in many of the cases that have touched the lives of Libyans, their property and possessions.

Human rights violations and economic crimes of the previous regime largely have overlapped in the Egyptian draft transitional justice law. However, since the military’s investments play such an influential role in the local economy and government, and as long as officials seek to avoid confronting international parties implicated in foregone economic crimes and corruption, political will to prosecute appears to be lacking. Egypt’s Shura Council, acting on behalf of the People’s Assembly, has recently completed a draft transitional justice law proposing a tribunal to investigate violations of the previous regime. However, the draft did not specify the criteria to determine responsibility and accountability for economic crimes.

The trials of the former regime officials before the ordinary courts for looted land have undermined the value of durable justice. The ordinary criminal system was designed when such violations were the exception, creating procedural controversies and appeals to convictions in the transitional period.

The Prime Minister`s recent decision to establish a commission to recover land may appear as a transitional justice mechanism. However, the State’s practice has been to reconcile and strike deals with officials and some businessmen of the Mubarak regime who face charges of violations of systematic human rights, corruption, theft of funds and land. This practice has been without any consideration to harm to society, as if the looted state assets are private funds owned by them.

Yemen and Bahrain have resorted to the Moroccan model in the development of transitional justice mechanisms. In Yemen, the former regime of Ali Abdallah Salih remains influential, despite Salih’s resignation. Through his aides and members of his family, transitional justice mechanisms were formulated without adequate consultation. The former regime’s considerable violations and encroachment on land are not taken seriously, especially in light of the Gulf Cooperation Council’s deal ensuring immunity for the former president.

The Bahrain monarchy has issued a memorandum that can be considered transitional justice measure, establishing the Independent International Commission of Inquiry. However, without any kind of regime change or revolution, the Bahrain case, like the Moroccan model, cannot be considered a transition at all. The royal family remains judge and jury, and still controls the institutions and resources of the state. Notably, the rulers are not implementing the recommendations of the Parliamentary Investigation Committee on the fraudulent acquisition of property both public and private.

The transitional justice experience in the Arab Spring countries has become a measure of the revolutions’ success. The accelerating actions, without sufficient consultation and before any agreement on a political settlement, have affected the substance of the draft laws on matters of consultation, evidentiary standards, real accountability and liability, especially in the search for truth and documenting violations such as the plundering natural resources and the seizure of public money. Meanwhile, ownership and land tenure are not protected enough by the still-unchanged state institutions, systems and laws. Thus, the means and causes of the initial corruption-and-control regime remain, without the state laws and institutions protecting the people’s national wealth and natural resources.

The people forming the uprisings have hoped to formulate effective procedures transitional justice to hold perpetrators accountable and close the file the corruption of the past. These measures were supposed to be free of bargains and deals for former officials, effect reparations for victims and also prevent such abuses in the future.

Many other transition experiences have coincided with that vision. Kenya’s Committee on Ethics and Anti-Corruption and its National Land Commission are working to recover the lands stolen without deals or reconciliation with the perpetrators of such violations, and just enacted enabling land laws in 2012. Also, Colombia has experience in the recovery of property and prevention of dispossession and displacement. There the government has developed a set of policies to facilitate the recovery of land and support the rights of land owners, in order to prevent further displacement and to enable the return of those forced to leave their homes. These and other experiences offer the Arab Spring transitional justice processes much-needed lessons.