What role can political and institutional engineering play in promoting reconciliation and inclusion? Drawing on the Tunisian experience with transitional justice, I argue that there are two interrelated pathways. First, transitional justice processes offer a framework for initiating political and institutional change, often having these official goals. Second, they rarely have the competencies to actually do so, meaning that the implementation of political and institutional reforms geared at fundamental change depends on other political and institutional actors. Thus, transitional justice processes and their potential for contributing to political and social change are also subject to changing political environments, preferences and power structures. This may make it harder to actually achieve what was initially planned (and therefore, ‘political engineering’ to be successful). Transitional justice processes have both ‘top down’ and ‘bottom up’ elements to them. While transitional justice efforts aim to challenge those (previously) in power (cf. Valbjørn this volume), their initiation and implementation is subject to the political will of the powerful. In line with Valbjørn’s invitation to reconsider the unequivocally positive connotation of de-sectarianization, this contribution challenges the notion that ‘reconciliation’ is always good and desirable. ‘Reconciliation’ can be purposefully misconceptualized and therefore discursively instrumentalize transitional justice terminology to fix a certain order of ‘political life’ (cf. Mabon this volume).
This contribution mainly draws on the Tunisian example, where there has been a very ambitious transitional justice process, introduced with much support by international transitional justice professionals and aimed at initiating political and institutional change. Transitional justice in Tunisia has been strongly anchored in the constitution, and legislation allowed for the establishment of institutions that were quite powerful on paper, but which still did not have the competencies to execute these changes on their own. Despite this main focus on a post-authoritarian context, the difficulties of planning and performing political and institutional change in a volatile political environment would also be applicable to a postwar context, in which political order is re-negotiated and in which sectarianism presents a major challenge. There is a tension between challenging political and socio-economic structures, a certain dependency on these structures to achieve change, as well as the potential of exacerbating conflict (cf. Mabon this volume and Leebaw 2008).
Transitional justice, fostering change, and ‘reconciliation’
The term ‘transitional justice’ is “associated with periods of political change” (Teitel 2003, 69; see also Arthur 2009). It captures both a societal process for achieving justice and accountability after conflict or violent rule, and a set of measures that is employed in order to facilitate this societal process. These measures commonly include trials, truth commissions, reparation or compensation measures, vetting/lustration, and sometimes also memorialization efforts and public apologies (see e.g. International Center for Transitional Justice 2009). Transitional justice should be both backward and forward looking. Transitional justice processes, and the corresponding institutions, aim not only at rectifying past wrongs and establishing a historical record of past atrocities and other violations (such as socio-economic marginalization), but also at changing societal standards of what is acceptable and fostering political, institutional and sometimes structural change.[1]
One goal of transitional justice that is often mentioned, but which remains rather elusive, is ‘reconciliation’ (cf. Subotić 2015, 366). In general, in divided society it is hoped that transitional justice measures help to ease tensions and thereby foster peaceful living together of those previously involved in conflict. However, there are mixed findings on whether transitional justice can be considered successful in this regard. The various types of measures are assessed differently in the academic literature and there is no agreement about whether a particular type of measures, such as trials or truth commissions, contributes better to sustainable peace than others.[2] Moreover, I posit that one should use the term ‘reconciliation’ with caution. On the one hand, ‘reconciliation’ is sometimes discursively used by political actors in order to suppress quests for change or to legitimize repressive politics. On the other hand, I do not want to take it for granted that ‘reconciliation’ is always a desirable goal: the relative reduction of power differentials in favor of the weaker group may increase the intensity of conflict and friction rather than bringing about agreement and friendly relations (Elias 1977, 130).
Temporal and functional dependencies of initiating political and institutional change through transitional justice
The Tunisian transitional justice law[3] aims at institutional reforms in various spheres, with the goal of “dismantling and rectifying the system of corruption, oppression and tyranny so as to guarantee the non-repetition of the violations, the respect of human rights as well as the establishment of a State of Law.”[4] It also explicitly should “encourage national reconciliation.”[5] The law provided the transitional justice institutions, and especially the Truth and Dignity Commission, with a mandate to pursue these goals. What it does not do, however, is provide them with clear pathways or competencies on actually initiating, designing, and implementing these kinds of reforms. However, in general the introduction and implementation of transitional justice measures, and especially of measures that are not only backward looking but also have influence on current and future power structures, requires political will. As Philippe Schmitter remarks, it matters when and how “decisions about meta-rules are made, debated, ratified and implemented” (Schmitter 2001, 132).
In Tunisia we can see very well how a ‘window of opportunity’ and the “revolutionary spirit”[6] was used to introduce a very comprehensive and far-reaching transitional justice project, and to anchor it in the constitution. However, the political situation and power relations in Tunisia significantly changed after the development and adoption of the transitional justice law, which was passed by the National Constituent Assembly at the end of 2013. The political situation has been volatile and those who had a strong interest in fostering change (or political engineering) in the way foreseen in the transitional justice law lost power in the 2014 elections. According to a senior Ennahda politician, former President Essebsi, who was elected in 2014 and died in office in 2019, rather had a “We must leave the dead alone” attitude towards transitional justice.[7] Thus, since “old clientelistic networks [were] rejuvenated” (Boukhars 2017, 263) those who gained power in the government and the presidency were not interested anymore in dealing with past crimes and in dismantling oppressive structures, since this was bearing the danger of undermining their power basis. They did not support the transitional justice institutions or even provided challenges to their work.
In Tunisia, but probably also in other transitional contexts, institutional reforms (and thereby political engineering) depend on different political bodies – and not only just the transitional justice institutions. They have to fit the government’s agenda and/or find support in parliament. In research interviews with members of the Tunisian Truth and Dignity Commission, they lamented about their dependency on other political bodies if they actually wanted to fulfill their mandate. As one truth commissioner gave as an example, if they should propose institutional reforms and vetting of those responsible,[8] they should know which understanding of the responsibility these should be based on. They felt that they needed more guidance by parliament for these decisions.[9] A parliamentarian, whom I asked about parliament’s plans in this regard, however did not see it as their task to provide this kind of guidance to the truth commission, since they would be occupied enough with pursuing their own law-making projects. They did not see transitional justice as a viable avenue for institutional change and reforms.[10] Similarly, a representative of the Tunisian General Labour Union (UGTT) stated that they found other avenues for exerting influence on political processes in order to push for change more promising than the transitional justice process and the corresponding institutions.[11]
In this vein, a civil society representative found that transitional justice could not deliver with regard to institutional reforms:
Unfortunately, so far, what we have noticed is… we have noticed that there are problems with transitional justice for us, essentially with regard to reforms. […] The two important institutions [that were] responsible for human rights violations are the security institution and the judicial institution. Unfortunately, what we have noticed so far is that there has not been much change in the legislation of these institutions and there has been no change in the structures of these institutions.[12]
Therefore, while transitional justice in Tunisia had the ambition and the mandate to engineer political and institutional change, the corresponding institutions did not have the actual competencies to do so and have been dependent on other political bodies. Due to shifts in power over time, the interests of these bodies did not necessarily align with those of the transitional justice institutions, which hampers implementation.
Instrumentalizing ‘reconciliation’
In Tunisia, one of the most obvious attempts by the President to undermine the work of the Truth and Dignity Commission was through the proposal of a so-called reconciliation law that in its original form would have granted amnesty to corrupt businesspeople and administrative staff (but which only passed in a less comprehensive version).[13] In this context ‘reconciliation’ in Tunisia has been discursively instrumentalized in order to delegitimize quests for justice and accountability and market the acceptance of impunity as the reconciliatory stance. An extreme manifestation of the discursive instrumentalization of ‘reconciliation’, with extreme consequences, can be observed in Syria. ‘Reconciliation’ has been discursively appropriated by the Syrian regime for legitimizing local truces called “reconciliation agreements” that are in fact “strangle contracts” and “tools of subjugation and control” (Sosnowski 2019, 2). Sosnowski (2019) shows for the example of Daraya how ‘reconciliation agreements’ are a means used by the Syrian regime to govern property and citizenship rights, and to mask a “brutal sorting procedure” (2019, 7) that stripped people off these rights. I could also observe a group conversation among potentially affected individuals, in which it became clear that for them ‘reconciliation’ has been discursively linked with this very specific piece of paper that should be signed. The term therefore has a negative connotation for victims and those opposed to the regime.[14] In both examples, not pushing for change (or bowing down to the authorities) is presented as a reconciliatory stance. By using transitional justice language, those not following this logic and continuing to push for substantial, structural and institutional change are marked as trouble-makers working against ‘reconciliation’. As mentioned above, in Tunisia, the ‘reconciliation’ initiatives were pushed by those who did not want to further work towards dismantling structures of nepotism and repression. Thus, ‘reconciliation’ had the aim of fixing a certain political and societal order. This ties in with Valbjørn’s argument that certain strategies of de-sectarianization have a “homogenizing ambition [that] does not leave much space for diversity, pluralism and difference” (this volume). In Lebanon, the National Reconciliation Accord (also known as the Ta’if Agreement) fixed the post-civil war sectarian order. It has ordered ‘political life’ along sectarian lines and conflictive structures (cf. Mabon). Top-down ‘reconciliation’ therefore has not left much space for political participation and access to power of those who oppose a sectarian order and want to push for farther-reaching structural change. This notion of ‘reconciliation’ is currently challenged by protesters who demand the resignation of the political elite entrenched in and profiting from the sectarian system, as well as the abolition of this system.
Concluding remarks
This contribution takes a critical look at transitional justice processes as an opportunity to initiate political engineering aimed at achieving justice and sustainable societal peace. It argues that there is an inherent tension between the goals of transitional justice and reconciliation as societal processes and as planned processes of political change that are geared in a particular direction and at achieving a particular version of change.
Even if they are rendered technical, as Mabon has observed for other political projects, these processes are deeply political since they aim at challenging existing power structures, and potentially fix new ones. Drawing on the Tunisian example, the contribution shows that transitional justice institutions usually do not have the competencies to actually do so and are depending on other powerful actors that may have competing interests. . In volatile political contexts, these initiatives are subject to changing power constellations and even when the impulse for political engineering in a certain direction and the institutional anchoring is strong at the beginning, as in Tunisia, they may not take effect eventually.
Additionally, as Valbjörn does for de-sectarianization, this contribution argues for challenging an unequivocally positive connotation of ‘reconciliation’. While reconciliation is often presented as an essential goal of transitional justice, it may also signify that a certain order should not be challenged. In these contexts, transitional justice language bears the danger of being discursively instrumentalized ‘top-down’ in order to label those pushing for change ‘bottom up’ as troublemakers. How this plays out in practice varies in different contexts. While in a post-authoritarian context, such as Tunisia, this was geared at averting further dismantling of old structures of nepotism and corruption, ‘reconciliation’ may also serve as a discursive justification to fixing a particular post-war political order, as with the sectarian system in Lebanon. Here, we currently see a ‘bottom up’ challenge to this discursive instrumentalization and a re-claiming of the notion that goes against the official interpretation. However, we can also see that as power structures are challenged and power differentials are reduced, conflict and friction intensifies.
Mariam Salehi is a postdoctoral fellow at the WZB Berlin Social Science Center
References
Arthur, Paige. 2009. “How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice.” Human Rights Quarterly, 321–67.
Boukhars, Anouar. 2017. “The Fragility of Elite Settlements in Tunisia.” African Security Review 26 (3): 257–70. doi:10.1080/10246029.2017.1294093.
Elias, Norbert. 1977. “Zur Grundlegung Einer Theorie Sozialer Prozesse.” Zeitschrift für Soziologie 6 (2): 127–49.
International Center for Transitional Justice. 2009. “What Is Transitional Justice?” Factsheet. Unpublished manuscript, last modified June 16, 2016. https://www.ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice-2009-English.pdf.
Leebaw, Bronwyn A. 2008. “The Irreconcilable Goals of Transitional Justice.” Human Rights Quarterly 30 (1): 95–118.
Lincoln, Jennifer. 2017. “Manich Msamah and the Face of Continued Protest in Tunisia.” Accessed August 27, 2017. http://www.jadaliyya.com/pages/index/27062/manich-msamah-and-the-face-of-continued-protest-in.
Miller, Zinaida. 2008. “Effects of Invisibility: In Search of the ‘Economic’ in Transitional Justice.” International Journal of Transitional Justice 2 (3): 266–91.
Ottendörfer, Eva, Mariam Salehi, Jonas Wolff, and Irene Weipert-Fenner. 2017. “Labor Unions and Transitional Justice: An Exploratory Study on a Neglected Actor.” In Justice Mosaics: How Context Shapes Transitional Justice in Fractured Societies, edited by Roger Duthie and Paul Seils, 344–69. New York: International Center for Transitional Justice.
Salehi, Mariam, and Timothy Williams. 2016. “Beyond Peace Vs. Justice: Assessing Transitional Justice’s Impact on Enduring Peace Using Qualitative Comparative Analysis.” Transitional Justice Review 1 (4): 96–123.
Schmitter, Philippe. 2001. “Contrasting Approaches to Political Engineering: Constitutionalization & Democratization.” In Rechtsstaat Und Demokratie: Theoretische Und Empirische Studien Zum Recht in Der Demokratie, edited by Michael Becker, Hans-Joachim Lauth, and Gert Pickel. Wiesbaden: VS Verlag für Sozialwissenschaften.
Sosnowski, Marika. 2019. “Reconciliation Agreements as Strangle Contracts: Ramifications for Property and Citizenship Rights in the Syrian Civil War.” Peacebuilding, 1–16. doi:10.1080/21647259.2019.1646693.
Subotić, Jelena. 2015. “Truth, Justice, and Reconciliation on the Ground: Normative Divergence in the Western Balkans.” J Int Relat Dev 18 (3): 361–82. doi:10.1057/jird.2015.13.
Teitel, Ruti G. 2003. “Transitional Justice Genealogy.” Harvard Human Rights Journal 16: 69–94.
Endnotes
[1] There has been an academic debate ongoing for over a decade that transitional justice is not dealing enough with structural change (see e.g. Miller 2008). Tunisia is a good example for where we see an attempt to accommodate these concerns in practice.
[2] Assessment even differs with regard to research methods. For an overview of the literature that considers transitional justice measures as successful in contributing to peace or not see (Salehi and Williams 2016).
[3] Organic Law on Establishing and Organizing Transitional Justice
[4] Ibid. Art. 14, unofficial translation by the International Center for Transitional Justice
[5] Ibid. Art. 43.
[6] Personal interview with the former minister for Human Rights and Transitional Justice, Tunis, October 2015.
[7] Personal interview with the former minister for Human Rights and Transitional Justice, Tunis, October 2015.
[8] He particularly took issue with the French expression “personne occupant une des hautes fonctions de l’Etat”
[9] Personal interview with truth commissioner, Tunis, March 2015.
[10] Personal interview with member of parliament, Tunis, March 2015.
[11] Personal interview with UGTT representative, Tunis, October 2015. See also Ottendörfer et al. (2017).
[12] Personal interview with civil society representative, Tunis, March 2015.
[13] For an overview of mobilization against the law see Lincoln (2017).
[14] Personal observation of discussion among potentially concerned population, Lebanon, December 2018.