Transitional justice: in between dictatorship and democracy

    In her Nobel Peace Prize acceptance speech, 32-year Yemeni Tawakkul Karman—the youngest and first Arab woman recipient—offered a vision for her country’s revolution:

    These revolutions were ignited by young men and women who are yearning for freedom and dignity. They know that their revolutions pass through four stages which can’t be bypassed: toppling the dictator and his family, toppling his security and military services and his nepotism networks, establishing the institutions of the transitional state, and moving towards constitutional legitimacy and establishing the modern civil and democratic state.

    But despite such lofty and inspiring words—even as a unity government is being formed—unrest remains in Yemen. On November 23, President Saleh of Yemen promised to step down within 90 days, ceding power to Vice President Abdrabuh Mansur Hadi as the country geared up for presidential elections in February 2012. But the protests continue as some opposition groups have rejected the deal because of the immunity it contained for the president. Saleh has backed out of similar deals before and the current deal is criticized by protesters as as being “a game.”

    In Syria, the country continues to waver on the brink of chaos as few voters turned out for local elections. But among all the sectarian fighting, the growth of the defector Free Syrian Army, low political participation, and sustained public protest, the writing is on the wall: the days of President Bashar al-Assad’s tenure are numbered. As death counts continue to rise—the UN estimates more than 5,000 people have been killed since the uprising began in early 2011—there is widespread Syrian support for the “Dignity Strike,” a general strike organized by nonviolent opposition groups—the Local Coordination Committees—seeking democratic reform.

    The trajectory from dictatorship to democracy is a complex and dynamic one. As evidenced by Egypt’s situation, the ousting of a dictator through people-powered nonviolent action and civil resistance is the first of many steps in stabilizing a more peaceful, more just, and more democratic society. What follows is the tough, nitty-gritty work of diplomacy and politicking around the essential question after the fall of a despotic regime: now what?

    In between dictatorship and democracy lies transitional justice. According the the International Center for Transitional Justice, it is

    an approach to achieving justice in times of transition from conflict and/or state repression. By trying to achieve accountability and redressing victims, transitional justice provides recognition of the rights of victims, promotes civic trust and strengthens the democratic rule of law.

    What does this look like in practice? As the ICTJ explains:

    The different elements of a transitional justice policy are not parts of a random list, but rather, are related to one another practically and conceptually. The core elements are:

    • Criminal prosecutions, particularly those that address perpetrators considered to be the most responsible.
    • Reparations, through which governments recognize and take steps to address the harms suffered. Such initiatives often have material elements (such as cash payments or health services) as well as symbolic aspects (such as public apologies or day of remembrance).
    • Institutional reform of abusive state institutions such as armed forces, police and courts, to dismantle—by appropriate means—the structural machinery of abuses and prevent recurrence of serious human rights abuses and impunity.
    • Truth commissions or other means to investigate and report on systematic patterns of abuse, recommend changes and help understand the underlying causes of serious human rights violations.

    Gene Sharp—one of the 20th century’s intellectual architects of nonviolent struggle for democracy—wrote a seminal book called From Dictatorship to Democracy: A Conceptual Framework for Liberation. In it, he wisely forewarns revolutionaries and would-be citizen democrats that:

    Thought should be given in advance to determine what is to be the policy toward high officials of the dictatorship when its power disintegrates. For example, are the dictators to be brought to trial in a court? Are they to be permitted to leave the country permanently? What other options may there be that are consistent with political defiance, the need for reconstructing the country, and building a democracy following the victory? A blood bath must be avoided which could have drastic consequences on the possibility of a future democratic system.

    Specific plans for the transition to democracy should be ready for application when the dictatorship is weakening or collapses. Such plans will help to prevent another group from seizing state power through a coup d’état. Plans for the institution of democratic constitutional government with full political and personal liberties will also be required. The changes won at a great price should not be lost through lack of planning.

    Transitional justice, then, is one of the essential things that happens in between governments that deals with the question of what to do with the old guard. But Habib Nassar, director of Middle East and North Africa programs for the ICTJ, noted in a phone interview that “it can be problematic if [transitional justice programs] only pay attention to perpetrators.”

    “Victim rights need be addressed as well as measures to stabilize the country and encourage reconciliation. Any plan needs to include everyone. Otherwise it is imbalanced,” says Nassar. Handled with wisdom and intention, transitional justice can be healing for victims of war crimes and human rights abuses, legitimize a new government by decisively and publicly breaking from the old one, and hold perpetrators accountable for their actions while deterring future activity by signaling that crimes against humanity and human rights violations are answerable to legal bodies. In an email intervew, Erica Chenoweth, Assistant Professor of Government at Wesleyan University and director of Wesleyan’s Program on Terrorism and Insurgency Research, also cautions that transitional justice programs must not devolve into “transitional revenge,” where:

    one group’s idea of a “just” outcome interferes with true justice. The second problem is the message it sends to dictators in other places—that if they surrender, they will be subjective to severe punitive measures. There are other forms of transitional justice, such as truth and reconciliation commissions, which help to alleviate both problems. But they are controversial, not least because they give the impression that atrocious behavior can go unpunished.

    In the case of South Africa’s Truth and Reconciliation Commission, its mandate was to tell the truth and, in exchange for such truth-telling, grant amnesty when applicable. It was not a prosecutorial body. There are differing views on the success of this experiment—which was a departure from the Nuremberg-style of transitional justice that resulted in executions of Nazi officials—but the final report did tell the truth, and an ugly truth at that. And that is one of main critiques of the South African commission was that, because it lacked any mechanisms for justice, it lacked reconciliation for the horrendous crimes suffered under Apartheid in South Africa. So while the intention of the program was never to be a criminal tribunal, many victims wanted otherwise.

    But transitional justice presses on with the “historic opportunities” presented by the Arab uprising. Libya is embracing it as a way to move forward after a six-month civil war between pro-Gaddafi loyalist troops and rebel fights left 25,000 dead, according to the National Transitional Council. It has promised forgiveness for soldiers who fought against the rebels provided that they did not take part in any of the systemic, widespread rape, murder or torture employed by the Gaddafi regime.

    Libya may prove to be a model for the region, although the crimes against humanity committed in Libya happened in a specific context and each country would have to adopt a program in relation to its own context and international law. “Amnesty in Libya,” says Nassar, “for minor violations can be envisaged as part of a larger plan. Blanket amnesty for all perpetrators is very serious and not acceptable.” Lawyers from Egypt and Tunisia—still in the throes of revolution—have been conferencing with ICTJ on the anticipated tasks ahead of them for judiciary reform and accountability issues for members of the former regimes.

    In all these instances, transitional justice was a response after regime change occurred. But can transitional justice, organized by opposition and resistance groups, be utilized to hasten the end of a despot? As noted above, Yemen’s President Saleh signed a deal to step down provided he and his family were guaranteed immunity. As protests continue, it is clear that this is not the will of the people. Unsurprisingly, there is not unity among the opposition with some joining the newly-formed unity government and others rejecting the immunity deal outright and demanding trials for Saleh. Key to recognizing the immunity clause in the Saleh deal is that the “opposition” often referred to it in the mainstream media is closely linked to the Yemeni political establishment. The youth-led uprising, that is largely rejecting the unity government and wants to see trials, is a much more independent movement that is akin to the April 6 movement of Egypt and has been overshadowed by opposition party groups like Islah, an off-shoot of the Muslim Brotherhood. Even as Saleh appears to be stepping down, disagreement among the opposition continues, as does the violence. Yemeni lawyers have formed the Yemen Center for Transitional Justice this past fall, but a specific plan has yet to emerge.

    Nassar can see the potential of an opposition movement reflecting on transitional justice programs, but is adamant that transitional justice is not about ending conflict. “It is about accountability and stabilizing society, not achieving peace.” Nonetheless, a way forward needs to be articulated among the opposition that more Yemenis can support and reflects a decisive break from Saleh’s 33-year presidency; because of Saleh’s long tenure and well-connected political ties, immunity does not reflect the kind of new Yemen that “Change Square” hopes for. But that does not mean that Saleh is immune forever. As Nassar explained:

    From ICTJ’s perspective, immunity—a blanket amnesty—is problematic. But things may change in future. [Past] immunities have been later questioned and challenged when the opportunity is merited. This is not final episode. Accountability will probably come. It seems that serious violations were committed—crimes against humanity. [Saleh] may enjoy immunity now, but who knows what could happen in few years when the balance of power shifts. Immunity may be what is needed to get peace in place. It has been inserted in peace deals in the past to establish peace. But what may be accepted internationally may cover only minor violation; the major things cannot be subject to immunity against prosecution.

    In Syria, where fighting is still going on and Assad remains in power, it may be too premature for a transitional justice plan to be put into place. But can a commitment to transitional justice—naming principles that the new order will abide by during the transition to a new government—also be a way to bring legitimacy, attention, and support to a resistance movement? Nassar thinks it possible but cautions that any program, because of the demanding work involved, has to take place after the conflict ends. Syrian activists have reached out to ICTJ for consultation and have started reflecting on what Syrian transitional justice might look like, depending on how the conflict ends and who is in power. Chenoweth recognizes some possibility in the role of a transitional justice proposal in making the movement more attractive to “fence-sitters” and “regime functionaries in the business, security, civilian bureaucrat, and religious sectors” than Assad’s regime, so long as the opposition remains committed to nonviolence:

    It is toward these groups—Assad’s “pillars of support”—that the opposition and international community should target immunity packages and golden parachutes to hasten Assad’s demise. In the meantime, the only way that the opposition can make a credible commitment to follow through on its assurances is to avoid using violence wherever possible. Maintaining nonviolent discipline will allow regime functionaries to consider their options, whereas using violence will push them closer to the regime.

    Some have suggested a “golden parachute” that, as Chenoweth describes:

    gives them [dictators like Assad] a deal that is too good to turn down (immunity, free passage out of the country, assurances that their children will be able to attend the best schools in the world, and that their families at home and abroad will not be subject to retribution or harassment).

    It seems Saleh has received a golden parachute—an incentive—to transfer power that would, hopefully, bring an end to the violence. While it offends all sense of justice, it may be a practical, worthwhile choice to end the immediate bloodshed before transitional justice programs can begin. At any rate, concessions will have to be made to perpetrators at some level. And, as Nassar mentioned, national immunity does not necessarily imply international immunity for perpetrators of crimes against humanity—allegations that Assad and Saleh both face.

    Considering Nassar’s vast experience, Karman’s prophetic voice, Chenoweth’s insight and Sharp’s research, transitional justice programs—so long as they are fair and enjoy widespread public support— hold some promise as an effective way to transition to a lasting democracy, address victims’ rights, and hold perpetrators (on all sides, not just state actors) accountable by some measure so that peace ensues.

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