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Is Trial Significant for Transition in Tunisia? – An Analysis of Tunisia’s New Economic and Financial Reconciliation Law

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The Tunisian Parliament’s passing of the new Economic and Financial Reconciliation Law on September 2017 has created unrest among opposition parties as well as civil society actors.

Most of the opponents see the law as a disguised amnesty for leaders from the former Ben Ali regime. Zine El Abidine Ben Ali, president since 1987, was abdicated in January 2011 after an intensive civil resistance movement against increasing unemployment, food inflation, and corruption along with allegations of human rights violations. Six months after his exile he, along with his wife, was found guilty in absentia for charges including corruption and was sentenced to 35 years.

One of the most progressive acts of the new regime was the passing of a Transitional Justice Law in December 2013. It framed a comprehensive structure to address the violations of the former regime by revealing past abuses, providing reparations to victims, and pursuing criminal accountability for serious crimes.

Under this law, a Truth and Dignity Commission to investigate and report past abuses, along with a Specialised Chamber for the prosecution were established. Criminal offenses as well as financial corruption and misuse of public funds were a major focus. The Truth and Dignity Commission started hosting a series of public hearings to gather statements on 9 June 2014, and it has gathered more than 63,000 statements to date.

Meanwhile, the current Tunisian President Beji Caid Essebsi proposed the new Economic and Financial Reconciliation Law during his independence speech on 20 March 2015. This proposed law has provisions of amnesty for corrupt government officials and businessmen of President Ben Ali’s regime.

Activists in Tunisia and international human rights and anti-corruption groups have actively been opposing this law since its inception in 2015. The law was finally passed by the Tunisian parliament after raucous deliberations on Wednesday, September 13, 2017.

The new law would effectively bring the Truth and Dignity Commission and the Specialised Chamber totally defunct as no prosecution could be initiated against anyone who obtains amnesty through the “reconciliation commission” established under the new legislation.

According to Human Rights Watch, this law could be a final blow to Tunisia’s transition and effectively defeat the very purpose of the Truth and Dignity Commission, which has the mandate to investigate corruption.

Is trial mandatory for Transitional Justice?

The political landscape of a society that is transitioning to democracy from autocracy or emerging from conflict has a continuum of transitional justice mechanisms, which include trials (both international and domestic), truth commissions, amnesties, property restitution, reparations, lustration policies, public monuments, and apologies. Scholarly opinion varies on the effectiveness and viability of these various mechanisms; some argue in favor of criminal prosecutions or alternate mechanisms like truth commissions and some for amnesties.

Even though there are so many developments in transitional justice, amnesty laws still feature prominently in post-conflict and post-authoritarian setups. The majority are self-declared amnesties proclaimed by outgoing regimes so as to protect themselves in the post-conflict and post-authoritarian period. The legality of such self-declared unconditional amnesty laws is questionable.

The Special Court for Sierra Leone, for example, in the Lomé Peace Accord decision has deemed the unconditional and free pardon to all participants in the decade-long civil war as illegal.Unlike in Tunisia, the Lomé case was on the amnesty laws, which pardoned perpetrators who were facing trial under an internationally constituted criminal court. Nevertheless, the initiatives like the new Economic and Financial Reconciliation Law in Tunisia, which is passed by the subsequent regime are usually more acceptable in respective national jurisdictions and are not generally condemned as illegal unless it is too biased or nepotic.

Criminal prosecution and amnesty are not the only viable options in a post-conflict and post-authoritarian setup. A truth commission is also generally favored as a “third wave” between punishment and amnesty.

Truth commissions can be defined in light of the “Theory of Denunciation.” Denunciation procedures are designed to engage offenders in an attempt to make them understand why their acts were criminal, while also reaffirming the norm in the community and educating society about the unacceptable nature of the conduct condemned, while also holding those responsible accountable. The Truth and Dignity Commission in Tunisia serves the objective of the Theory of Denunciation, as well as will have a deterrent effect, as the findings of the commission will be the basis of the prosecution by the Special Chamber.

Another interesting feature in the new reconciliation law in Tunisia is the provision for declaring the ill-gotten assets as a condition for amnesty. The government believes that this contributes to the country’s economic development. This is similar to the lustrations and property redistribution, which were the main mechanisms in formerly communist Eastern European countries’ transitional justice. However, such attempts were controversial because they flew in the face of due process and were highly susceptible to corruption and manipulation.

In Tunisia, susceptibility to corruption and manipulation is also high, as the details of amnesty – including the declaration of assets – under this new reconciliation law, will not be made public. There are already allegations that those seeking amnesty and those currently in power are well connected, and there is high chance that this law will be misused to their advantage.

The anomalies of alternatives to trials in transitional justice, including the reconciliation laws, are evident from the above discussion. Most of the alternatives, though helpful in negotiating peace, send out a message of impunity to future violators.

The Tunisian reconciliation law passed recently does not provide any clause which mandates the authorities to declare the details of the people who seek amnesty including how much money they declare as ill-gotten. This will send out a message of impunity as there is not even a revelation of who all the culprits were and how much money they declared as ill-gotten for benefiting amnesty.

In all post-conflict and post-authoritarian setups, it is important to have some form of deterrence that has the potential to dissuade future violators by punishing the present ones. The new reconciliation law does not deter future violators nor does it deliver retributive justice for the victims in a fair and equitable manner.

Further, supporters of the new law would argue that prosecuting and punishing leads to political instability in newly democratizing societies like Tunisia. For them trials are detrimental to a stable democracy after the transition.  However, historically trials and truth commissions do not have a determining impact on the quality of the new democracy when observed some years after the transition could be an answer. For example, Barahona de Brito a transitional justice scholar asserts that “Democracy is just as strong and deep in Spain, Hungary, and Uruguay, where there was no punishment or truth-telling, as in Portugal, the Czech Republic, or Argentina, which did experience purges and trials.”

Additionally, in the context of Latin American trials, there is no evidence that human rights and corruption trials undermine democracy. Further, the example of Argentina’s experiences today provides proof that trials can have neutral and arguably positive effects on democratic stability.

Hence, it can be very well resolved that the claim by the Tunisian government that the new reconciliation law will help in forging future democracy is not true as the success of a new democracy is independent of the transitional justice methods utilized.

Historically, in the majority of cases, domestic level mechanisms fail because of impunities brought about by mechanisms like reconciliation or amnesty laws. Often the most powerful authoritarian regimes either grant themselves amnesty or avoid legal prosecution through other means, and only the weaker outgoing regimes are eventually punished.

In some other cases, justice cannot be achieved because the violators continue to remain in power or strike deals with the subsequent rulers and shield themselves with immunities (e.g., reconciliation laws like in the present case). After all, the decision whether to punish or pardon a situation is largely constrained by the interest of the political elites of the state.

Hence it can be construed that trial for crimes in transitional societies like Tunisia is not only significant but also inevitable for proper delivery of justice, whether it is through trial or other mechanisms like truth commissions.

Giving blanket amnesty through a new reconciliation law without identifying and declaring the truth will not have a positive effect on the smooth transition and future peace process in Tunisia. Therefore, Tunisia should take immediate measures to annul the controversial new Economic and Financial Reconciliation Law and proceed with the trial of the corrupt under the former Transitional Justice Law.

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Middle East

The economic summit in Bahrain won’t be about Palestinian-Israeli conflict

Ksenia Svetlova

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In less than two weeks Jared Kushner and Jason Greenblatt will present in Manama the first part of the long-awaited “deal of the century”, the peace initiative of president Donald Trump designed to find an ultimate solution for the prolonged Palestinian-Israeli conflict.

Iraq and Lebanon will not take part in the event, while Tehran had already accused the participants, mainly Saudi Arabia of “betrayal of the Palestinian struggle”. Following the massive pressure on Arab leaders and promises of significant economic development, the American administration was finally able to secure the participation of Egypt, Jordan, the Gulf states, and probably Morocco. Israel didn’t receive an official invitation for this event yet. It is, however, clear that it will be invited, and some rumors imply that PM Netanyahu himself might come to Bahrain, a country with which Israel doesn’t have any diplomatic relations.

Yet, it seems that this odd event in Manama will resemble a wedding without the bride. The groom will be there, so are the loving parents who will provide the dowry and the guests, but the bride, i.e. the Palestinian autonomy had already declared that it will not send any official or unofficial delegation to the upcoming economic conference.

The relations between the White House and the Palestinian administration had gone sour since President’s Trump decision to move the US embassy to Jerusalem. The Palestinians are suspicious of Trump’s attempts to promote “a deal” that might not include a reference to a two-state solution. For the last two years, the sole connection between Washington and Ramallah has been maintained by the respective security agencies.  Recent remarks made by the U.S. Ambassador to Israel on Israeli territorial claims in Judea and Samaria and the hints of Israel’s annexation plans intensified Palestinian concerns towards the unveiling of the first part of “the deal”. Palestinian officials had harshly criticized the participation of Arab countries in Bahrain conference, expressing hope that they will send low-key representation, while the Jordanian Kind explained that he decided to send a delegation to the summit “to listen and remain knowledgeable of what is taking place”.

Yet, the most fascinating thing about the economic conference is that it’s not at all about the Palestinian-Israeli conflict despite its title. With only one year left prior to the US presidential elections and considering the political turmoil in Israel and the unwillingness of the Palestinian partner to engage in any plan presented by Trump’s administration, there is little hope in Jerusalem, Ramallah or Washington that the “deal of the Century” will accumulate in peaceful solution in the current century.

Why, then, the American administration is investing time and energy in the upcoming Bahrain summit? The answer is clear: mostly, to consolidate the alliance of the “moderate Arab states”.  Considering the recent dramatic events at the sea of Oman and the attack on two oil-tankers, it will not be far-fetched to imagine that the growing tensions in Iran will overshadow the official reason for the gathering. In the same fashion, the “anti-terror” conference in Warsaw that took place in February this year, was solely about Iran, while all other aspects of anti-terrorism activities were left behind. The deterioration of the situation in the Persian Gulf is crucial for the hosts and their allies – the Arab countries in the Gulf. Egypt and Jordan were required to be there because they are key American allies in the region who also maintain diplomatic relations with Israel. The plan that is envisaged by Kushner and Greenblatt will include economic benefits and development programs for both Amman and Cairo who are dealing with pressing economic hardships. Would they prefer to stay away from the conference that is being shunned by the Palestinians? Probably. Could these two countries, who receive significant economic help from the US say no to the invitation and not show up at the wedding of the century? Highly unlikely.

Ironically, some 52 years ago in Khartoum, it was the Arab league that had unanimously voted on the famous “three no’s” resolution in Khartoum, declining any possibility of dialogue with Israel. Today, when the Arab states are weakened by the “Arab spring” and preoccupied with growing tensions in the Persian Gulf while the focus has shifted from the Palestinian question elsewhere, they are more prone than ever to go along with practically any American plan, while the only ones who refuse to cooperate with Trump and obediently fulfil his orders are the Palestinians who will be absent from Manama gathering. The support of the Palestinian struggle and its importance in Arab politics had dwindled, while other regional affairs had moved center stage. Considering this dramatic change of circumstances, the odd wedding in Bahrain doesn’t seem so odd anymore. It can be seen as yet another step in American attempts to consolidate an Arab alliance against Iran. The Palestinian-Israel conflict that will keep simmering after the conference just as it did before has nothing to do with it.

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Who benefits most of suspicious attacks on oil tankers, tensions in the Gulf?

Payman Yazdani

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The events roiling the Persian Gulf in recent weeks and days have the potential to affect everything from the price of gas to the fate of small regional states.

A look at the tensions going on around the world including the Middle East and Persian Gulf region, East Europe, Venezuela all indicate that these tensions originate from the US administration’s unilateral unlawful measures.

The White House’s unlawful withdrawal from the Iran’s nuclear deal (JCPOA), designation of the Islamic Revolutionary Guards Corps (IRGC) as a terrorist group, reimposing sanctions on Iran and trying to drive Iran’s oil export to zero all are provocative and suspicious moves of the US that have fueled the regional tensions.

The US and its regional allies including Saudi Arabia and the UAE’s suspicious and provocative move to accuse Iran of being behind the attacks on two ships at Fujairah in the UAE without presenting any document was also foiled by Iran’s vigilant approach and reduced tensions to some extent.

While the Japanese Prime Minister is visiting Iran after 4 decades and many expected even more reduction of the tensions in the region due his visit, in another suspicious and provocative move two oil tankers were targeted in Sea of Oman, a move that can intensify the tensions more than before.

Undoubtedly the US and its proxies in the region as usual will accuse of Iran being behind the incident without any document in hours once again, but the main question is that who is benefiting the most of the tensions in the Persian Gulf region?

Pondering the following reasons one can realize that the number one beneficiary of the tensions and attacks on tankers in the Persian Gulf and the Middle East is the USA and respectively Tel Aviv and the undemocratically  appointed rulers of some regional Arab states seeking their survival in following the US policies.

– Contrary to decades ago the US is now one of the biggest oil and gas producers in the world seeking to grab the market share of the other countries in the world. Following US unlawful withdrawal from the JCPOA and its efforts to drive Iran’s oil export to zero under the pretext of different accusations, in fact the US is making efforts not only to grab Iran’s share of the energy market but also to limit Iran’s income to reduce Iran’s regional influence. The US move to create tensions in Venezuela and East Europe and slapping sanctions against Caracas and Moscow can also be interpreted in this line.

– Any tension in the Persian Gulf not only will increase the energy price in global market but also will create enough pretexts for Washington to boost its military presence in the region. This means control of energy routes by the US in order to contain its rivals like China, EU, Japan and new rising economies like India which their economies are heavily dependent on the energy coming from the Persian Gulf and Middle East.

– Tensions in the region besides Iranophobia project will guarantee continuation of purchase of American weapons by some regional countries such as Saudi Arabia. By continuation of selling weapons to Saudi Arabia the US not only creates thousands of jobs for Americans but also keeps its rivals like China and Russia out of Middle East weapon market.

– Tensions and conflicts created by the US in Middle East has resulted in great rifts and divergence among regional states which is vital for Tel Aviv’s security and its expansionist policies.

From our partner MNA

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The odds of success for Japanese PM’s visit to Iran

Payman Yazdani

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US President’s recent retreat from his previous rhetoric stances towards Iran should not be misinterpreted as the White House’s retreat from its policy of ‘maximum pressure’ on Iran.

In line with its maximum pressure on Iran policy, on Friday the United States imposed new sanctions on Iran that target the country’s petrochemical industry, including its largest petrochemical holding group, the Persian Gulf Petrochemical Industries Company (PGPIC).

The main reason behind the changes to Trump administration’s tone against Iran in fact is internal pressure on him. Americans are against a new war in the region. Also opposition from the US allies which will suffer from great losses in case of any war in the region is another reason behind change to Trump’s tone.

Japanese Prime Minister Shinzo Abe is slated to visit Tehran on Wednesday June 12. He hopes to use his warm relation with Iran and the US to mediate between the countries.

Besides Abe’s warm relations with Iranian and the US leaders there are others reasons that potentially make him a proper mediator including Japan’s efforts to have independent Middle East policy and not having imperialistic record in the region which is a good trust building factor for Iran.

Above all, as the third largest economy of the world Japan is very dependent on the energy importing from the region. Japan imports 80 percent of its consuming energy from the Middle East which passes through Hormuz strait, so any war and confrontation in the region will inflict great losses and damages to the country’s economy and consequently to the world economy.

To answer the question that how Mr. Abe’s efforts will be effective to settle the tensions depends on two factors.

First on the ‘real will’ and determination of the US and Iran to solve the ongoing problems especially the US ‘real will’. One cannot ask for talk and at the same time further undermine the trust between the two sides by taking some hostile measures like new sanctions that the US slapped against Iran’s petrochemical section last night on the eve of Mr. Abe’s visit to Tehran. If there is a real will, even no need to mediator.

Second we have to wait to see that how the Japanese PM will be able to affect the US’ decisions. Iran’s Keivan Khosravi spokesman for the Supreme National Security Council said efforts to remove US extraterritorial sanctions against Iran could guarantee the success of Japanese PM’s visit to the Islamic Republic.

From our partner MNA

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