Decolonizing Justice in Tunisia From Transitional Justice to a People’s Tribunal

Corinna Mullin, Nada Trigui and Azadeh Shahshahani

Building on decades of struggle, the January 2011 Tunisian uprising triggered a wave of popular revolt that spread across North Africa and West Asia. If the Tunisian transition was exceptional in its relative peacefulness and pacted nature, it was less so in regard to its susceptibility to external influence.[1]Nadia Marzouki, “Tunisia’s Rotten Compromise,” Middle East Research and Information Project, July 10, 2015. Though more tangible in the cases of other regional states marked by externally driven or supported instability, violence, and destruction, Tunisia’s so-called transition was also conditioned by Western intervention and complex geopolitical entanglements. Western-dominated institutions and states seized upon the haziness produced by the uprising to more fully penetrate Tunisia’s political economy and further neocolonial capitalist development, despite fierce and persistent resistance.

Tunisia became the focus of a celebrated project of transitional justice, which is now the globally mandated method of reconciling victims and perpetrators following a non-revolutionary regime change. Tunisia was the first country to establish an entire ministry charged with overseeing the establishment of the transitional-justice processes, which was dismantled shortly after the passing of the 2013 Organic Law on Establishing and Organizing Transitional Justice. Though there were several ad-hoc transitional-justice mechanisms prior to its passage, the law provided the legal framework and mandate for the official establishment of the Truth and Dignity Commission (TDC) (Instance Vérité et Dignité) in June 2014. The TDC completed its mission and released its final report on March 26, 2019.

The South African Truth and Reconciliation Commission and the post-Cold War wave of transitions are the most emblematic cases of applying transitional justice. The precedent established in these cases is a form of transitional justice that limits itself to a narrow definition of past state crimes and paves the way for neoliberal governance—and it was probably hoped that Tunisia would stick to that model. In fact, the actual process of transitional justice in Tunisia revealed numerous tensions and conflicts. The local political and economic elite linked to the deposed government attempted to block the process, while the former international backers of Zine El Abidine Ben Ali, the President of Tunisia from 1987 until his ousting in 2011, sought to defuse its radicalism, ushering transitional justice into an institutionalized framework with a focus on legal procedures and individual crimes, while intentionally ignoring the larger political context, including structural and longstanding causes of injustice. There were also those who conceive of themselves as part of a more broadly defined category of victims, including not only those subjected to the physical violence and political repression of the state, but also to material and social exclusions, exploitation, and everyday forms of alienation that are a feature of colonial-capitalist forms of development. They have sought to harness the process to promote the Tunisian revolt’s more ambitious goals. Beyond mere truth-telling and individual reparations, they have pursued a more substantive justice. Nevertheless, due to the imbrications of the institutionalized transitional-justice process within imperial and neoliberal capitalist structures of power, their achievements have been limited. The most notable success of Tunisia’s popular forces was the challenging in mainstream spaces of hegemonic narratives about the country’s past and its postcolonial identity. But the uneven nature of this struggle points to a need for different models of justice.

In what follows, we will critically examine Tunisia’s process of transitional justice with a view to showing how the very paradigm employed—that is, the rule of law that transitional justice consistently seeks to impose—is skewed in favor of imperial interests, arguing that this complicity with the status quo can be traced to the paradigm’s origins in the mid–twentieth-century victory of European powers over Nazi Germany and its allies. There are other models of justice, however, that are not rooted in this Eurocentric victor’s history, but instead derive from revolutionary traditions. A key one is the People’s Tribunal, used since the late 1960s. In the revolutionary spirit of the 2010–11 revolt and building on its more radical tradition, we sketch out the very broad outlines of what a People’s Tribunal in Tunisia would look like. Its aims would be to amplify and extend the popular-justice claims that surfaced during the country’s recent transitional-justice process. Establishing such a tribunal might help build a symbolic reservoir and organizational force that could ultimately contribute to substantial revolutionary change in the country.

Tunisia’s Transitional-Justice Process: A Critical Anatomy

From the start, Tunisia’s Truth and Dignity Commission was a magnet for public interest, quickly generating a great deal of grassroots support. The commission’s legitimacy was further boosted with the appointment of longstanding political activist Sihem Ben Sedrine at its helm. Over the years, more than sixty-two thousand claims were submitted and forty-nine thousand secret hearings and fourteen public ones were held concerning a broad range of issues, from the repression of protestors during the 2010–11 Tunisian revolt to the victims of violence during the anticolonial struggle of the 1950s. As of now, 174 cases have been transferred to special chambers and 30 trials have already commenced. Most recently, a specialized tribunal in the southwestern city of Gafsa looked at the repression of an uprising in 2008 against rising levels of unemployment, regional marginalization, and the neoliberal restructuring of the mining basin’s largest employer.

This narrative of a smooth and linear progress belies the actual struggle that has underpinned the process from the beginning, with fierce opposition presented by a political-economic elite aligned to the deposed government. This opposition was emboldened by the failure of the National Constituent Assembly, elected in 2011, to pass lustration measures, meaning that former Ben Ali government members could participate in future elections. In the fall of 2015, newly elected President Beji Caid Essebsi, himself a former Ben Ali minister, went so far as calling for the country to “turn the page” on the past and move forward in the name of “economic development.” Though his proposed expansive amnesty was ultimately rejected, in September 2017, the government passed a more modest version of the bill that provided amnesty for civil servants implicated in economic crimes. There were also continual attempts to delegitimize Ben Sendrine and to sabotage the process, especially from Tunisian media, whose ownership and editorial structure have remained largely unchanged since the days of Ben Ali’s rule.[2]Safa Belghith, “The Effect of Media on Public Opinion: Al-Chourouk Coverage of The Truth and Dignity Commission” (master’s thesis, Ibn Charaf, University of Tunis, June 2018). Another hindrance was the refusal of the Ministries of Interior and Defense to respond to summons, appear in court, or cooperate with demands for information, including access to state archives. This could not help but fuel popular disillusionment, as did the fact that, while some 260 cases of human rights violations were transferred to specialized courts, many others were not. Finally, there is a general dissatisfaction with the Commission’s failure to address regional marginalization and economic crimes, which were part of its mandate.

Even if these procedural and political obstacles had all been resolved, however, it is unlikely that Tunisia’s transitional justice could have produced anything other than limited results. Understanding the reasons for this requires us to look at the incomplete character of Tunisia’s 2010–11 revolution, which failed to upend the racialized norms of international power relations that maintain the country in a subordinate condition. The revolution stopped far short of unravelling the material fabric in which these neocolonial relations of power are embedded, hemmed in by imperially accrued debt and a structurally dependent economy designed to generate surplus for big capitalists.[3]Prabhat Patnaik, “Capitalism and Inequality,” Agrarian South: Journal of Political Economy 4, no. 2 (2015): 153–68. Nor did it successfully carry forward the longstanding efforts of Tunisia’s numerous postcolonial movements and rebellions, such as the 1968 student movement or the 1984 bread uprising against the termination of wheat and semolina subsidies, imposed by the International Monetary Fund (IMF), to name just two.

With the recent revolution having stopped halfway, a peace-and-reconciliation process could follow one of two paths: it could either (1) ratify the existing global and neocolonial order, or it could (2) point beyond that order, highlighting the need for further, profound changes. Transitional justice, which was the option chosen, unequivocally follows the first of these paths. In Tunisia, as in South Africa and the former Soviet Union, transitional justice was the handmaiden to a neoliberal transition. It could do this because it systematically depoliticizes, atomizes, and appropriates social struggle, while deflecting attention from the structural causes of violence and inequality.

Modern transitional justice is closely tied to the neoliberal project of governance. As opposed to the brute force of military intervention, neoliberal governance is a more subtle power strategy for maintaining and extending imperialist and capitalist agendas. It is supposedly based on principles of self-regulation, with some of its key mechanisms including so-called voluntary partnerships and legal standardization across borders that facilitate the free flow of capital. If the strategy indeed establishes a continuity of diffused powers, this is always based on the normalization of market values. In effect, such liberal governance practices—and transitional justice too insofar as it works to maintain the capitalist rule of law across borders—propose to embed societies in the economy, thereby turning on its head the world-historical norm that Karl Polanyi observed of the economy being conditioned by social institutions. Massimo De Angelis, “The Political Economy of Global Neoliberal Governance,” Review(Fernand Braudel Center) 28, no. 3 (2005): 229–57.)))

Evidence of the class and imperialist interests that promoted transitional justice in Tunisia can be found in the list of its most enthusiastic backers. These include the very same Western governments that had previously propped up dictatorial rule in the country and now lavished support on the TDC.[4]Between 2011 and 2012 alone, the UNDP spent $18,932,000 in assistance to Tunisian ministries and the parliament on issues of Democratic Governance, of which transitional justice is a component. Another $4 million was secured for Support to Transitional Justice in Tunisia, a UNDP project that lasted from June 1, 2014 to May 31, 2017. See “Support to Transitional Justice Process in Tunisia,” United Nations Development Programme and the Office of the High Commissioner for Human Rights. Additional funders include the European Union, Norway, other European states, Australia, and Japan. Report: Le Dialogue National sur la Justice Transitionnelle en Tunisie (Tunis: Ministère des Droits de l’Homme et de la Justice Transitionnelle, 2013). For more information on the ICTJ’s role in the Tunisian transitional-justice process, see the Tunisia page on their website, http://ictj.org. The United Nations (UN) was another key sponsor of the process. Although certain UN organs have historically been amenable to third world agendas, many of its projects have abetted neoliberal development under the guise of democratic governance and conflict resolution. In Tunisia’s transitional-justice process, it was the United Nations Development Program (UNDP) that worked closely with the International Center for Transitional Justice to mentor the TDC. This included training one hundred “civil society focal persons” in the techniques of transitional-justice principles to form a group that would facilitate a nation-wide dialogue on the drafting of the 2013 Transitional Justice law.[5]UNDP Results Tunisia, UNDP Library, March 2013. Many of the UNDP’s expressed aims were certainly laudable, including “protection of human rights,” “ensuring that women and marginalized groups play an effective role in the pursuit of a just society,” and “participation of all citizens in the development process.” However, the agency demonstrated a clear tendency to mold postrevolutionary conceptions of justice in Tunisia according to neoliberal frameworks out of step with local realities.[6]Wassim Laabidi, “Dynamique d’Économie Sociale et Solidaire en Tunisie: Historique d’Instrumentalisation et de Récupération,” Athimar, July 14, 2018. The prominent role of the United Nations was on display in the Commission’s December 14 closing ceremony, where its representative spoke of “rule of law,” “democracy,” and “societal reconciliation” but did not even mention the 2010–11 revolt that initiated the process!

There was a previous consultation procedure set up in Tunisia. Yet attempts to modify the preestablished transitional-justice paradigm were generally silenced or contained. For example, when queried, respondents would sometimes point to the structural roots of Tunisia’s deep-seated political, class, and spatial inequalities and proposed correspondingly radical solutions. These solutions included rejecting the parceling of injustice into individual crimes and investing the concept of criminality with more radical content. Likewise, in the reparation and reform phases, some participants predicated reestablishing peace between state and society on the transformation of Tunisia’s political economy. Finally, delving into distributive politics, some proposed that productive regions receive a fixed percentage of any profits made on state or private investments in extractive industries in their region.[7]Report: Le Dialogue National sur la Justice Transitionnelle en Tunisie.

Although a limited number of these more radical demands were eventually adopted, the TDC sidelined most proposals to modify significantly the justice process, suggesting that the exercise of consulting had been little more than window dressing. In sum, Tunisia generally adhered to the hegemonic model of transitional justice. The 2010–11 revolution had failed to transform Tunisia’s neocolonial condition—the country’s unequal incorporation into the global political economy—and the model of justice applied did not choose to look beyond existing structures of global inequality but rather reinforce them.

Plus ça Change: Transitioning without Transforming

Transitional justice is often described as a legal-social process that governs the change within a state from repressive, violent, and illiberal rule to democracy, peace, and societal reconciliation.[8]Ruti G. Teitel, Globalizing Transitional Justice (Oxford: Oxford University Press, 2011). Thus defined, the practice seems wholly benevolent and unquestionably progressive. Yet one only has to scratch the surface of actually existing practices of transitional justice to reveal the powerful forces that operate behind them, define their goals, and govern their outcomes.

As a political project, transitional justice works institutionally to lock postcolonial states within an unequal capitalist global economy so that they can continue to be sites of speculative investment, and natural-resource and surplus-value extraction.[9]Samir Amin, “It Is Imperative to Construct a 5th International of Workers and Peoples,” Defend Democracy Press, July 28, 2017. To accomplish this, it benefits from several key framing devices that make the practice especially fitted for neoliberal governance. First, transitional justice is chronically short-sighted, in as much as it presents the causes of violence, dispossession, exclusion, and marginalization as domestic or national concerns, thereby masking the foundational roles of colonialism, global capitalism, and imperialism in shaping relations of power over the longue durée.[10]A consequence of this temporal and spatial myopia is that transitional justice inevitably reproduces orientalist-racist assumptions about the global South as a geographical space of “failed states” in need of Western intervention. See Beth Thiessen, “Conceptualizing the ‘Failed State,’” University of Saskatchewan Undergraduate Research Journal 1, no. 2 (2015). Second, transitional justice consistently adheres to the liberal practice of privileging individual and negative rights over collective and positive rights. This reflects U.S. hegemony over the human rights framework insofar as the right to be protected from state intervention takes precedence over the right to certain social goods and standards of living.[11]Patrick Higgins, “Between Dictatorships,” Robespierre Monument, February 9, 2016. Thirdly, transitional justice systematically ignores the generalized injustice of today’s economic order, the capitalist world system.[12]Zinaida Miller, “Effects of Invisibility,” International Journal of Transitional Justice 2, no. 3 (2008): 266–91. Not surprisingly, then, it can be almost impossible for social movements aimed at radical transformation to harness the institution of transitional justice, whose framework works to reinforce the global status quo.

The treatment of the 2008 Gafsa revolt is in many ways emblematic of the TDC’s shortcomings and limitations. The roots of the revolt long predate the events under consideration. All of the cities southwest of the mining basin have inarguably been victims of over a century’s worth of natural-resource extraction, land and water dispossession, pollution, and labor exploitation going back to the establishment of the first phosphate mine, established in 1897, during the colonial era. The postindependence state chose to pursue the same export-led model and, following the structural-adjustment diktats of the IMF, restructured the mine and dismantled social services, further eroding the well-being of workers and their families. The 2008 popular intifada was the inevitable reaction to these changes and other forms of oppression and dispossession that had accrued for over a century. The state response was brutal: a six-month siege, multiple arrests, the torture of protestors, and even several murders. The region was collectively punished through policing, stigma, and deeper economic marginalization. Yet, in addressing the brutal repression in Gafsa, the tribunal considered only a limited number of post-June 2008 individual criminal cases. This kind of quid pro quo, typical of transitional justice, fundamentally transformed the nature of the Gafsa case. It failed to acknowledge colonialism’s foundational and structuring role in the multiple forms of violence to which the population of Gafsa has been subjected over decades. Not only that, but it also depoliticized state violence, focusing on specific crimes of select groups of individuals rather than the broader role of the state in facilitating systemic oppression for more than one hundred years. Despite the importance of the testimonies presented, this collective, regional experience was transposed into individual suffering. In a context of global structural inequality and pressure from international financial institutions, this sidelined the role of neoliberal development in perpetuating the dispossession and inequality that triggered protest.

Tracing the genealogy of modern transitional justice can help demonstrate the forces that have shaped it and condition its current-day application. The modern practice of transitional justice descends from the Nuremberg Trials at the end of the Second World War. In that historic episode, fascist and genocidal practices were put on trial but with a marked Eurocentric bias. The violence that Nazi-fascism exercised against Jews, gays, communists, and other subaltern groups was essentially an extension of the horrors experienced for many centuries by the victims of the trans-Atlantic slave trade and European colonialism. What made Nazi practices unacceptable to the West was their occurrence on European soil against fellow Europeans. The latter were unable to forgive Adolf Hitler not because of the crime itself, but rather, as Aimé Césaire has argued, because of “the crime against the white man, the humiliation of the white man, and the fact that he applied to Europe colonialist procedures which until then had been reserved exclusively for the Arabs of Algeria, the coolies of India, and the blacks of Africa.”[13]Aimé Césaire, Discourse on Colonialism (New York: Monthly Review Press, 2000). The Nuremberg trials’ tendency to build a firewall between the crimes of Nazi fascism and those of the colonializing powers points to a foundational contradiction that continues to haunt international law practice right up to the present.

Transitional justice’s blindness to the systematic and racialized violence the North inflicts on the South makes it highly functional to maintaining today’s imperial world order (which depends on that structural violence). As Walter Rodney argues, underdevelopment can only be understood in a relational context, as the result of a “particular relationship of exploitation: namely, the exploitation of one country by another…a product of capitalist, imperialist and colonialist exploitation,” in a way that “depriv[es] the societies of the benefit of their natural resources and labor.”[14]Walter Rodney, How Europe Underdeveloped Africa, (Paris: Bogle-L’Ouverture, 1972) Yet, transitional justice considers its founding moment to be a set of 1946 trials that, because of their Eurocentrism, “depoliticized and narrowed possibilities of facing up to the root causes of the holocaust.”[15]Mahmood Mamdani, Beyond Nuremberg: Learning from the Post-Apartheid Transition in South Africa, policy brief no. 1 (Kampala: Makere Institute of Social Research, 2015). Moreover, today transitional justice goes on overlooking the degree to which the global North’s mantle of liberal governance depends on a racialized hierarchy of life that normalizes surplus-value extraction and the pillage of the South’s resources. The precedent established for transitional justice from Nuremberg forward is devastating: the real causes of underdevelopment—whether due to accumulation by dispossession or more classic forms of exploitation—are simply a marginal concern for humanity.

Dissonances within Continuity

When transitional justice arrived in Tunisia in 2014, having passed from Nuremberg through the celebrated South African and Eastern European cases, it nevertheless produced some dissonant results. That is, even if the transitional-justice process generally adhered to the time-honored practice of ignoring the structural and historical roots of oppression, it could not entirely control and contain the debate when it came to the crimes of the colonial era. In a limited way, these entered the TDC’s purview, though the restricted timeframe for considering such crimes (1955–56) was highly arbitrary in view of the actual scope of French domination (that even preceded the formation of the protectorate in 1880). To its credit, the Commission did cover part of Tunisia’s fierce intranationalist struggle, recognizing the collaboration of the Bourguibist wing with French colonial power in the so-called liquidation of the more radical Youssefite pan-Arab resistance, resulting in the victory of a pro-Western, gradualist independence trajectory. It also examined some of the neocolonial violence perpetrated in the aftermath of Tunisian independence and facilitated by Tunisian authorities, such as the French bombing of Tunisian rebels in the Battle of Mount Agri in Tataouine. Although the TDC considered the colonial roots of Tunisia’s repressive security state with its hallmark features of extensive surveillance, violent practices, and mass incarceration, it did not examine its embeddedness in imperial security architectures and agendas during the postcolonial period: in particular, the provision of finance, training, equipment, and intelligence to Tunisia’s security apparatuses, including the police and military, through the United States, France, European Union, and United States Africa Command and North Atlantic Treaty Organization programs.

That Tunisian security apparatuses today continue to reproduce colonial policing logics and methods is not only a legacy of colonialism, but also a reflection of Tunisia’s ongoing submission and subscription to the repressive requirements of a political-economic system predicated on resource and surplus-value extraction and mobility obstruction. Tellingly, imperial forces are hardly mentioned in the report. Furthermore, whereas the 2010–11 revolutionaries took an abolitionist approach to the neocolonial apparatuses of state security, burning police stations and prisons, the TDC final report calls for increased “oversight,” “transparency,” and other “reforms” of these apparatuses to bring them in line with the “rule of law” and a liberal rights framework. Inconsistent with the reigning transitional-justice paradigm, the TDC also considers historically marginalized regions as victims, tying together regional inequality and Tunisia’s neoliberal, Western-inspired development logic. Though the report highlights the role of the “World Bank and IMF structural adjustment recipe” in furthering disparities and consolidating the extractive model, it fails to elaborate the underlying mechanisms through which this model of development has persisted despite popular resistance—especially post-2011—and omits the importance of delinking from these policies and actors as a condition for nonrepetition.[16]

While transitional justice in Tunisia managed to avoid substantial innovations in most areas, one of the process’s indisputable successes was its challenge to the country’s official historiography. For instance, Tunisia’s first president, the lawyer and nationalist leader Habib Bourguiba, is enshrined as a national hero. Nevertheless, the transitional-justice process sparked discussions about Tunisian independence and decolonization struggle that questioned Bourguiba’s role, while recovering other purposefully eclipsed figures and narratives about the anticolonial movement, including that of the more radical pan-Arabist movement led by Salah Ben Youssef (a movement that Bourguiba collaborated with the French to suppress). The TDC’s discussions also drew attention to the colonial roots of Tunisia’s political economy, heavily based on resource extraction, by looking at the virtually royalty-free contract French salt manufacturer COTUSAL has long enjoyed.[16] Imen Louati, Polémique Autour de la COTUSAL: Le Sel Marin Est-il une Ressource Naturelle?, briefing paper no. 6 (Tunis: Observatoire Tunisien de l’Economie, 2018); “Explanatory TDC Press Release on the Exploitation of Underground Natural Resources by the French Colonizer,” Truth and Dignity Commission, March 14, 2018. The results remained in a symbolic register in both instances. Still, successes on this symbolic level are no small feat. For discursive control was always central to implementing both Bourguiba and later Ben Ali’s unpopular economic policies and geopolitical alignments. In fact, their legitimacy depended on a systematic erasure of struggles in the global South and more radical alternatives. Even today, remnants of the old regime continue seeking legitimacy in a reified conception of the country’s history.

The TDC’s positive role in destabilizing and reshaping Tunisia’s conception of its postcolonial identity has not gone unnoticed. Its president, Sihem Ben Sedrine, spoke of the “history preservation” role of the Commission, claiming that it will help prevent “repression in the future.”[17]TDC Closing Conference,” Instance Vérité & Dignité‎ Facebook video, December 15, 2018. In the words of Tunisian author Sghaier Salhi, the TDC has contributed to transforming the state’s “official memory…a pillar of domination” by “restoring some truths” about power and resistance in Tunisia’s colonial and postcolonial history.[18]Sghaier Salhi, “Interview avec Sghaier Salhi: Les Non-Dits de la Tunisie Postindépendance,” Nawaat, April 5, 2018. As laudable as such contributions are, everything points to how the Commission’s success in these areas were despite rather than because of its subordination to the globally mandated model of transitional justice.

Overall, the process of transitional justice in Tunisia—in which there emerged important but still inchoate ruptures with the overarching Nuremberg model—points to the need to consider alternative methodologies and formats. Exploited majorities and subaltern groups, whose voices sometimes erupted during the debates, have powerful demands for justice. Insofar as their claims turn on collective and economic rights and address the structural violence of the imperialist world order, they clash irreconcilably with the dominant model of transitional justice that has been passed down to us. To develop another paradigm, we are called upon to read history against the grain.

How to do so? Instead of the hegemonic narrative based on the struggle among European powers that culminates in the justice meted out at Nuremberg, we could look at history from the perspective of the global South and consider the decolonial struggles of the 1950s and ’60s as a potential blueprint for contemporary popular justice. These movements pursued something that was the very opposite of a neoliberal transition in as much as they sought to redistribute land and resources, and invoked such concepts as “transnational solidarity” and “revolutionary justice.”[19]Adam Branch, “Beyond the TJ Industry,” Pambazuka News, November 21, 2014. Hence the memory of these decolonial struggles—their conferences, proclamations, and movements—would be a richer starting point for the radical reimagination of justice. In fact, reactivating it could itself constitute a step toward real revolutionary practice in our time.

Decolonizing by Other Means

Both the Bandung conference of 1955 and the Tricontinental conference of 1966 are testimonies to the period not too long ago, in which oppressed peoples took history into their own hands. The words of “The Second Declaration of Havana,” which fell roughly between the two events, captures the spirit of self-emancipation that emerged during those decades: “The epic struggle that we are facing will be written by the hungry masses of Indians, the landless peasants, the exploited workers.… This great mass of humanity has said ‘Enough’s enough.’”

That period may seem to be a closed chapter in world history, but some of its spirit survives in under-recognized projects. For example, though largely ignored by the media, the recent practice of convening People’s Tribunals captures the ethos of self-determination that existed in Bandung, the Tricontinental, and also in the Non-Aligned Movement, since these tribunals bring together activists from around the world and are designed by and accountable to the social movements and communities in which they are rooted. Rejecting the institutions of capitalism, empire, and other forms of repressive rule, People’s Tribunals make decisions that may not be binding and do not have the force of law, but their achievements in a discursive register can inspire present and future organizing. People’s Tribunals allow the oppressed to judge the powerful, defining the content as well as the scope of the procedures, which reverses the norm of the powerful creating and implementing the law.

The first formal instance of a tribunal of this kind was the Russell Tribunal set up in 1966 by British philosopher and antiwar activist Bertrand Russell to judge U.S. military intervention and war crimes in Vietnam. The same format reemerged in later Russell Tribunals dealing with the U.S.-backed Brazilian and Argentinian military dictatorships (1964 and 1976, respectively), the U.S.-backed coup in Chile (1973), and the U.S.-European interventions against Iraq (1990, 2003). There are, however, important examples of legal efforts to put the powerful on trial that go back even earlier. For instance, in 1951, an innovative campaign called We Charge Genocide: The Historic Petition to the United Nations for Relief of a Crime of the United States against the Negro People sought to indict white supremacy and the violence of racial capitalism in the United States. Organized by the Civil Rights Congress, the campaign submitted a petition to the United Nations, challenging it to live up to its claims of universality. Supported by the Communist Party and signed by a host of black leftist luminaries, including W. E. B. Du Bois, Claudia Jones, and Paul Robeson, the We Charge Genocide petition argued that the atrocities of slavery, Jim Crow, and contemporary institutionalized violence were on par with the crimes of the Nazis, since both were genocides aimed at destroying a whole people.[20]In a 1970 edition of the petition, the communist lawyer and activist William Patterson linked the “racist theory of government of the USA” and its exploitation and oppression of black people to “aggressive [U.S.] wars” against “foreign foes…[whose] lands are rich with raw materials worth billions to the imperialists.” See William Patterson, We Charge Genocide(New York: International, 1970).

When the powerful organize legal processes, they seem to have unlimited resources at their disposal, but when the oppressed try to put the powerful on trial, they depend on the volunteer labor of organizers, activist, journalists, scholars, witnesses, and victims. As in any legal process, lawyers are important in People’s Tribunals, but their role is fundamentally transformed. Lawyers, even when they attempt radical legal reforms, may ultimately, if inadvertently, be extending the life of the system. By contrast, the movement lawyers who work in People’s Tribunals take on the more ambitious project of reimagining the state and projecting new forms of social relations based on equality and solidarity.[21]Amna Akbar, “Toward a Radical Imagination of Law” (working paper no. 426, Ohio State Public Law, 2017). People’s Tribunals also transform the role of the victims and witnesses who enter the process as individuals or members of broader communities affected by violence. In transitional justice, true to the neocolonial power relations that underpin it, the authoritative expert always confronts a marginalized victim. People’s Tribunals, by contrast, aim to empower victims through providing ownership over ”the story.” Sharing the victims’ experiences thus ceases to be about legitimizing a legal process designed to keep them powerless and bring closure to a revolutionary moment. The victims instead become protagonists, pursuing the revolution by different means and making a first step in the redistribution of power.[22]Tshepo Madlingozi, “On Transitional Justice Entrepreneurs and the Production of Victims,” Journal of Human Rights Practice 2, no. 2 (2010): 208–28.

People’s Tribunals in Our Century

For Franz Fanon, decolonizing is the process of “making the last first.” This role reversal in the field of justice can assume different forms. It could be a straightforward People’s Tribunal or it could involve a related legal process such as a reparations demand. A particularly relevant example of the former is the 2016 International Tribunal for Democracy in Brazil, which critically examined the impeachment of President Dilma Rousseff. Various social movements, including Via Campesina International, the Brazil Popular Front, and Brazilian Jurists for Democracy organized the tribunal, which also got support from various grassroots groups including the Landless Workers’ Movement.[23]Azadeh Shahshahani, “An International Tribunal Declares the Impeachment of Brazil’s Dilma Rousseff an Illegitimate Coup,” Nation, August 26, 2016. Rousseff was impeached on spurious grounds. She had moved funds from a federal bank to cover cashflow shortfalls in government programs, but this is a common practice among Brazilian presidents. Moreover, in doing so, she had not violated any federal laws (in sharp contrast with Rousseff’s impeachers, many of whom, including her successor Michel Temer, have been indicted for corruption).[24]”Senators Push to End Impeachment Against Rousseff After Report Finds No Laws Broken,” teleSUR, July 16, 2016. The tribunal brought together eight activists from around the world, who examined the evidence and heard from many witnesses. It unanimously concluded that Rousseff’s impeachment was “in effect, a coup” that “violate[d] all the principles of the democratic process and the Brazilian constitutional order.[25]Shahshahani, “An International Tribunal Declares.”

This verdict contrasted starkly with the position of U.S. leaders, who immediately established relations with Temer’s wealthy and almost exclusively white government, which lost no time in gutting the country’s social programs.[26]Shahshahani, “An International Tribunal Declares”; Kevin Gosztola, “At People’s Tribunal, Brazilian Grassroots Groups Leery of US Role in Rousseff Impeachment,” Shadowproof, August 3, 2016. U.S. support for the coup in Brazil comes as no surprise.[27]For extensive background on the coup and the U.S. role, see Brian Mier, Voices of the Brazilian Left: Dispatches from a Coup in Progress, vol. 1 (European Union: Brazil Wire, 2018). Rather, it is consistent with U.S. positions on recent coups in Paraguay and Honduras that overthrew democratically elected left governments challenging the region’s geopolitical and economic status quo.[28]Shahshahani, “An International Tribunal Declares.” An important achievement of this popular tribunal in Brazil was the way it broke with the nation-centered myopia of transitional justice by exposing the connections between U.S. imperial interests and the Temer coup. So doing, the tribunal identified the forces that would soon pave the way for Brazil’s fascists to win the presidency in 2018. With Jair Bolsonaro at their head, these forces have since been criminalizing activist organizations and targeting resistance, paving the way for U.S. capital to further dispossess and exploit the country.[29]U.S. arms companies are already eyeing the opportunities to expand their weapon sales as a result of Brazil’s return to the sphere of U.S. influence. See, Stavridis James, “Brazil’s Bolsonaro Completes a U.S. Sweep of South America,” Bloomberg, October 30, 2018.

If Brazil’s popular tribunal called attention to a situation quickly spiraling into fascism, then the 2018 International People’s Tribunal in the Philippines confronted a fascistoid government already in power.[30]Coauthor Shahshahani was invited to participate on the jury of eight human-rights leaders who took part in the International People’s Tribunal in the Philippines. Organized in Brussels by both Philippine and international groups, the tribunal has exposed and condemned the multiple forms of state violence visited on the people of the Philippines since Rodrigo Duterte became president in 2016. Under the guise of an antinarcotics campaign, Duterte is essentially carrying out a war against the poor in which thousands have been extrajudicially murdered by government forces, cases of rape have doubled, and millions have lost their jobs.[31]Julie Aurelio, “Palace Slams Verdict of Int’l People’s Court,” Inquirer.net, September 21, 2018; Peter Murphy, “The International People’s Tribunal Has Found President Duterte Guilty,” Equal Times, October 4, 2018; “Philippines’ Duterte Uses ‘War on Terror’ Tactics to Crack Down on Leftists,” Real News, April 17, 2018.

The tribunal heard from over thirty victims of human rights violations, expert witnesses, and community leaders, and examined a wide array of documentary evidence.[32]Murphy, “The International People’s Tribunal.” It found Duterte guilty of fourteen charges, including violations of civil and political rights; violations of economic, social, and cultural rights; and violations of the right to national self-determination.[33]Aurelio, “Palace Slams Verdict.” Donald Trump was held to be responsible for the same series of crimes—a charge evidently in view of the close longstanding ties between the two countries, which have grown even tighter in recent years, as tens of millions in military aid (including so-called aid for narcotics control and law enforcement) are channeled to the Philippines to counter China’s burgeoning role in the region.[34]Azadeh Shahshahani, “America’s Indefensible Alliance with the Philippines,” HuffPost News, February 23, 2018. This People’s Tribunal’s willingness to look beyond national frontiers and hound out imperial power relations was also economically sound. Despite some initial friction, it is the United States and its business leaders that stand to benefit from Duterte’s neoliberal economic policies.[35] Azadeh Shahshahani, “The Philippine People Are Under Attack from Washington—and Their Own Government,” HuffPost News, December 3, 2015.

The U.S. government was put directly on trial by a pair of innovative People’s Tribunals. These were the 2007 International Tribunal on Katrina and Rita and the 2018 International Tribunal on U.S. Colonial Crimes Against Puerto Rico. The former project, which brought together judges from around the world, exposed grave state crimes in the wake of a capitalist-induced ecological crisis, advocating reparations for those internally displaced by the hurricanes. The latter, convened last year, looked at the criminal oppression of Puerto Rico, beginning with the U.S. conquest in 1898 and up until the devastation wrought by Hurricane Maria in 2018. The tribunal’s final judgement called on the U.S. government to “acknowledge and apologize for colonial crimes committed against the Puerto Rican people…surrender all property and power forcibly taken from the Puerto Rican People…[and] pay reparations to victims of the crime of colonialism.”

Alongside People’s Tribunals, there are legal efforts seeking reparations for slavery and colonialism that share the same aim of decolonizing justice, putting the dominator rather than the dominated in the dock. A key project of this kind is the National Coalition of Blacks for Reparations in America which, since 1987, has sought “full Reparations for Black African Descendants residing in the United States and its territories for the genocidal war against Africans that created the TransAtlantic Slave ‘Trade’ Chattel Slavery, Jim Crow and Chattel Slavery’s continuing vestiges.”[36]Salim Muwakkil, “This Could Be Reparations’ Best Chance Since 1865,” In These Times, April 21, 2017.

It is just one example of reparations-based justice. For instance, the Caribbean states likewise came together in 2013 to inaugurate a regional body, the CARICOM Reparations Commission (CRC) seeking compensation to redress “the Crimes against Humanity of Native Genocide, the Trans-Atlantic Slave Trade and a racialized system of chattel Slavery.”[37]See the Caricom Reparations Commission, http://caricomreparations.org. Also, in Namibia, the Herero people are seeking reparations from the German government for its genocidal practices, including a gruesome episode in which sixty-five thousand people were exterminated by a colonial general’s order.[38]Daniel A. Gross, “Why the Herero of Namibia Are Suing Germany For Reparations,” NPR, May 6, 2018.

As with People’s Tribunals, demands for reparations need to be embedded in a carefully conceived discursive framework, critical of the existing world order. That is, it is important that the financial aspect of the claim form part of a broad strategy of envisioning a just society. For, without such a strategy, lasting structural changes are unlikely and, as Robin D. G. Kelley reminds us, there is no guarantee that they will be accompanied by a new vision and new values.[39]Robin, D. G. Kelley, Freedom Dreams: The Black Radical Imagination (Boston: Beacon, 2002) One extreme example of this is the post-Second World War reparations made by Germany to the settler-colonial state of Israel. Co-opting and capitalizing off Jewish suffering, the Zionist political project has employed these funds to dispossess and ethnically cleanse the land of the native Palestinian population, perpetuating atrocities that many Jews themselves had been subject to by the Nazis.

What makes counterhegemonic legal projects of this kind possible? It is essential to recognize that although the web connecting law’s empire with imperial interests is tight, it is not unbreakable. Both reparations demands and People’s Tribunals treat legal practices, whether national or international, as a contested terrain. The possibility of doing this—that is, of upsetting the global norm and opening a window on a truly decolonial and structural justice—depends, of course, on certain conditions of instability in real power relations. The law within capitalist states is first and foremost concerned with protecting capital, while international law, with its origins and structures rooted in capitalist colonialism, is usually the handmaiden of imperial domination. Yet, in certain moments of global turbulence it becomes possible to destabilize these norms.[40]Ayça Çubukçu, For the Love of Humanity: The World Tribunal on Iraq (Philadelphia: University of Pennsylvania Press, 2018). This is what Ayça Çubukçu, drawing on the work of Nancy Fraser, has argued. She claims that, in these exceptional moments, the hegemonic grammar of human rights and international law comes into question, and “the what, the who, and the how of justice become subject, at once, to substantive debate.”[41]Çubukçu, For the Love of Humanity.

Does such a possibility exist for the Tunisian people today? The long history of anticolonial resistance that recently resurfaced in the Arab revolts and the very ruptures we have observed within the country’s transitional-justice process point to a possible opening in global power relations: the very contested field where a People’s Tribunal could do its work.

Revolutionary Justice in Tunisia?

This possibility looks more like an urgent ethical and strategic necessity the more we reflect on the situation of the Tunisian people today. That is because, on the one hand, the country’s transitional-justice process drew widespread popular support and fueled hope for radical justice—what a government report identified as the desire for “reforms against systems of tyranny and impunity and [toward] the fulfilment of the objectives of the revolution,” including the dismantlement of the “systems of marginalization that have produced the state of inequality.”[42]The objectives of the revolution are the aggregate expression used in talking about what was initially raised as the main slogan in the uprising: Jobs, Freedom, and National Dignity. Reestablishing equal access to these rights—that is what is perceived as justice, prevented by the systems of impunity and violence. Report: Le Dialogue National. On the other hand, there was almost no chance that such radical demands would be satisfied without delinking them from the globally endorsed model of justice. Obviously, then, an alternative format is needed. How else to address the victims’ manifest desire for structural change?

In effect, a People’s Tribunal in Tunisia could build upon the popular justice claims that erupted into the TDC’s discussions. As we have seen, these open a window on the demands for structural justice that fit into Tunisia’s long trajectory of revolt. Both the history of anticolonial resistance and ongoing struggles around land, natural resources, and police violence could provide rich material for the debates in such a tribunal.[43]Aurelio, “Palace Slams Verdict.” The aim would not be mere truth-telling and catharsis but rather taking the first step—if only on a discursive plane—toward seeing justice realized in a concrete, structural, and revolutionary way. In that sense, a People’s Tribunal would operate by taking one step further the scattered discursive victories achieved during Tunisia’s transitional-justice process.

A set of reified narratives is always central to maintaining class relations, and only by questioning those stories and reimagining the world can we begin its revolutionary transformation. The People’s Tribunal we are proposing would attempt to pick up subaltern histories from the Tunisian context that call into question the ruling class’s preferred narratives. It is worth enumerating some of these histories—both of domination and resistance—that are fit for inclusion in such a process:

  1. The neocolonial-designed phosphates industry’s destruction of health and environmental conditions, which has alienated communities that have long survived off of the land and sea;[44]Gabes Labess—All is Well in Gabes,” directed by Habib Ayeb (2015), available at Athimar, http://athimar.org. Wassim Laabidi, “Repenser le Phosphate… Repenser l’Environnement,” Athimar, October 27, 2017.
  2. Worker resistance to racialized labor exploitation throughout the colonial era, which paved the way and participated in nationalist mobilization;[45]Rebecca Gruskin, “Trade Unions, Armed Resistance, and the Struggle for Independence in Tunisia: Unlikely Alliances and Contested Nationalism in the Gafsa Mining Basin, 1947–1963″ (lecture, Gafsa in Past and Present Symposium, Tunis, October 2017), available at Maghrib in Past & Present | Podcasts, http://themaghribpodcast.com. Martin Thomas, Violence and the Colonial Order (Cambridge: Cambridge University Press, 2015).
  3. The forced conscription of Tunisians to fight and die on behalf of their colonizers on the front lines of the First World War;[46]Laurent Ribadeau Dumas, “Les Tunisiens dans l’Enfer de la Première Guerre Mondiale,” Franceinfo, November 11, 2018.
  4. The violence that crushed the Fellagha anticolonial revolt and thus shaped the limited independence that followed;
  5. The role of the French and U.S. armed forces in imposing imperial interests and ensuring the incompleteness of Tunisia’s decolonial process;
  6. The series of accords signed between France and Tunisia at the time of Tunisia’s managed independence requiring continued security cooperation and Tunisian subservience to French imperial interests, as expressed in neocolonial contracts enabling the extraction and exploitation of Tunisia’s natural resources by foreign capital (e.g., COTUSAL);[47]Louati, Polémique Autour de la COTUSAL.
  7. The complicity of Western states through the provision of weapons and training to the various security apparatuses, with the violent repression of labor and other forms of popular mobilization in the 1968 student uprising, and, while Tunisia underwent neoliberal restructuring, the 1978 UGTT-organized general strike, the 1984 Bread Intifada against the IMF-imposed removal of food subsidies, and the 2008 Gafsa uprising;[48]Moutaa Amine El Waer, “Mars 68 et le Non-Mai 68 Tunisien,” SciencesPo Bibliothèque, April 2018.
  8. The role of imperialist states, especially the United States and the European Union, in militarizing Tunisia’s borders, imbricating its security institutions into imperial architectures, and thereby alienating the state from its people and from the Maghrebi, Arab, and African regions in which it is geographically, culturally, and historically embedded;[49]Corinna Mullin and Brahim Rouabah, “Decolonizing Tunisia’s Border Violence,”Viewpoint Magazine, February 1, 2018.
  9. The interference of international financial institutions, including the IMF and World Bank, U.S. agencies such as USAID, and regional bodies such as the European Union in the processes of law and policymaking through debt, conditioned aid, and trade deals, perpetuating neocolonial resource extraction, value drain, and the cultural and economic disembedding of Tunisia from its natural regional context;[50]Tunisie et FMI: Injustices_Transitionnelles, policy brief no. 2 (Tunis: L’Observatoire Tunisien de l’Economie, 2017); Historique des Relations Commerciales Tunisie-UE: L’Heure du Désenchantement?, briefing paper no. 1 (Tunis: L’Observatoire Tunisien de l’Economie, 2017); L’ALECA, un Instrument Clé dans la Politique de l’UE, briefing paper no. 2 (Tunis: L’Observatoire Tunisien de l’Economie, 2017). Mohamed Haddad and Khansa Ben Tarjem, “ALECA/Tunisie: Vous n’Imaginez Pas Tout ce que l’ALECA Peut Faire Pour Vous…,” Barr al Aman, January 2, 2019.
  10. The role of international financial institutions, regional bodies, and other imperialist actors in the deliberate dismantlement of Tunisian public institutions to the detriment of society as a whole but in particular to working-class and marginalized communities that depend on public services as they do not have the ability to access private services;
  11. The collective and individual agency and complicity of local actors with the extensive foreign intervention in policymaking that has functioned to maintain the coloniality of the structural inequality of power relations and to prevent full decolonization;
  12. The complicity of Western governments in Ben Ali’s consolidation of power and the structural, economic, political, and physical violence exercised against the population at various moments during his rule, in particular during the 2008 Gafsa uprising and the 2010–11 revolt;[51]Hèla Yousfi, Trade Unions and Arab Revolution: The Tunisian Case of UGTT (New York: Routledge, 2018).
  13. The complicity of foreign capital and Western governments, through their silence as well as through the provision of material support, with local actors in the violent repression of social movements following the 2010–11 revolt, including the protests in Kerkannah, Tataouine, El Kamour, and Gafsa;
  14. The complicity of Western countries with local actors in perpetuating the impunity and defaulting on the effort of the repatriation of stolen public money by Ben Ali and relatives.

A People’s Tribunal could address, in turn, each of these episodes of violence from the history of the Tunisian people. As in the tribunals discussed earlier in this article, defendants would include both domestic and international actors. Its focus would be on structural violence, rather than individual crimes, hence transformative rather that retributive justice. The process would work to produce results both on a symbolic and an organizational level. Concretely, it would provide a space for political education, while, in an international context marked by increased skepticism regarding institutionalized politics and political parties, it would constitute a platform for coordinating strategies and tactics. Echoing the Bandung and Tricontinental conferences, it would generate regional and transnational solidarity based on a fuller understanding of the interconnections between diverse anticapitalist and anti-imperialist struggles.

Most importantly, like those historic examples, a People’s Tribunal would be an effort in self-emancipation: social movements in Tunisia and abroad could use the platform to advance the struggle against the underlying causes of injustice, as determined by the oppressed themselves. In doing so, this People’s Tribunal would bring us closer to delivering a justice that, in the words of the Tunisian scholar and activist Hèla Yousfi, is “capable of saving [Tunisia’s] dignity individually and collectively.”[52]Hèla Yousfi, Facebook post, December 14, 2018.

feature image: Flickr photo of Tunisian protests by marcovdz

Corinna Mullin was a Visiting Assistant Professor of International Political Economy/International Politics at the University of Tunis for five years. She now teaches at the New School and John Jay in New York. She tweets @MullinCorinna.

Nada Trigui is an International Political Economy graduate from the University of Tunis. She cofounded the Observatory for Food Sovereignty and the Environment and was involved in the Manish Msameh campaign. She tweets @TrNada

Azadeh Shahshahani is the Legal & Advocacy Director at Project South and former president of the National Lawyers Guild. She tweets @ashahshahani.

The authors would like to thank Ujju Aggarwal, Max Ajl, Samar Al-Bulushi, Moutaa Amine El Waer, Brahim Rouabah, and Hèla Yousfi for their help on the article, as well as Noah Lapidus for his research on people’s tribunals in Brazil and the Philippines.

Posted on Monthly Review May 1, 2019

References   [ + ]

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