This essay is part of the Middle East-Asia Project (MAP) series on “Pathways to Transitional Justice in the Arab World — Reflections on the Asia Pacific Experience.” The series explores the pursuit of transitional justice in the post-Arab Spring Middle East, and how such efforts could be informed by past and ongoing justice processes in Asia-Pacific countries. See Resources …
 


The inclusion of justice measures that draw upon local or “traditional” culture and religion in transitional justice processes has been a feature of many recent transitions.[1] Such measures can help to increase the local legitimacy and ownership as well as popular acceptance of transitional justice processes, among other effects. In so doing, they can arguably contribute to the ultimate success of transitional justice in a particular country.[2]However, effectively incorporating local cultural or religious traditions into transitional justice processes is not as straightforward as it might seem to be. One aspect of the challenge is well illustrated by Tunisia’s experience with transitional justice since the Arab Spring. In Tunisia, there is very strong support for Islam playing a role in the country’s political life. Yet Tunisian transitional justice has not drawn upon the Islamic tradition and would almost certainly not have been able to do so in a way that contributes to the ultimate success of transitional justice there. Why?

This article will answer that question by focusing upon the circumstances of Tunisian transitional justice and by comparing them to the transitional justice process in Aceh, Indonesia, where Islamic practices were to some degree drawn upon. These case studies demonstrate that local cultural or religious practices must have widespread legitimacy and popular acceptance if they are to effectively contribute to transitional justice. As the article argues, legitimacy and acceptance can be ascertained by determining whether the practices are part of a larger belief system that has already defined, and been accepted as defining, the nature of the public sphere and political system. This is because the inclusion of a less accepted practice strongly risks giving rise to uncertainty, polarizing debates, and divisions that could distract from and even derail the already difficult processes of transitional justice.

Transitional Justice in Tunisia

The fall of the Ben Ali regime in Tunisia in January 2011 set off a process of rapid political change and very quickly gave rise to a variety of transitional justice measures. The first elements involved the establishment of investigative bodies to look at political reforms, violations that had occurred since December 2010, and corruption. Legal reforms soon followed, as well as prosecutions of senior government figures, including former President Zine el-Abidine Ben Ali, and the institution of a reparations program. At the same time as these measures were being implemented, an extensive public consultation process regarding an eventual transitional justice law was undertaken. A team travelled across the country and talked with Tunisians of all ages about what they would like to see included in such a law.[3] Drafting of the law was finalized in late 2012, and Tunisia’s National Constitutional Assembly ratified it in December 2013. The Law on Transitional Justice lays out a formal framework for transitional justice that incorporates the elements that have come to be expected in a comprehensive process: a truth and dignity commission, guidelines for criminal prosecutions, reparations and rehabilitation, institutional and political reforms, vetting, memorializing of victims, and measures aimed at deeper societal reconciliation.[4] Since ratification of the law, implementation of transitional justice measures has continued to move ahead, an example of which is the formation of a truth and dignity commission in May 2014.[5]

Yet nowhere within the country’s transitional justice law (or in the processes of transitional justice that have taken place so far as well as the underlying justifications offered for those processes) is there anything that might be characterized as an Islamic influence. This is particularly interesting given the very strong support for Islam playing a significant role in the country’s political life (a view held by 88 percent of Tunisians according to a 2013 survey), and the strong majority who feel that Islam is a significant and positive influence in Tunisia’s politics (a view held by 82 percent of Tunisians according to a 2012 survey).[6] These numbers have remained steady despite a precipitous drop in support for Ennahda, the Islamic party that, from 2011 until recently, had led the country. This seems to indicate that the views regarding Islam and politics represent core values not tied to the fluctuating fortunes of a particular political actor.[7]

Equally important, it seems likely that Islam and Islamic law could productively contribute to a transitional justice process. Indeed, a 2010 workshop on post-conflict justice and Islam organized by the United States Institute of Peace (USIP) and made up of scholars and practitioners of Islamic and international law noted the essential compatibility between Islamic law and legal principles and the international norms of transitional justice, particularly in terms of truth, accountability, and compensation for victims.[8] This is not to say that it is always clear how to apply some of those principles to transitional justice.[9] But such challenges of application do not detract from the fundamental fact of compatibility, which caused the workshop’s participants to conclude that “Islamic law―and its emphasis on social and criminal justice― is a cornerstone of transnational Muslim identity and thus offers a potentially powerful platform for implementing post-conflict justice in Islamic societies.”[10]

Debating the Role of Islam in Tunisian Politics

Understanding why Islamically influenced justice measures have not been drawn upon in Tunisia and would almost certainly not have been effective if they had been requires looking at the country’s recent history and present socio-political context. During the latter half of the 20th century and the first decade of the 21st century, Tunisia was dominated by a strong secular nationalism that permeated the political and legal systems under the successive authoritarian regimes of presidents Habib Bourguiba (1957-1987) and Ben Ali (1987-2011). Other than a very brief thaw at the beginning of Ben Ali’s tenure, political Islamists were heavily persecuted, demonized, and kept out of politics with only a limited presence in the public sphere.[11] The uprisings that broke out in late 2010 and that ultimately culminated in the fall of Ben Ali were initially led by secular actors. As the revolution progressed, however, the Islamists came to assume an increasingly prominent and confident role.[12] This soon fanned strong and often polarizing debates about the public role of Islam and secularism in the country, debates that continued and in fact intensified once an Islamist government was elected in October 2011. The debates were further stoked by the process of working on a new constitution, with its prospect of concretizing a more prominent role for Islam within the country. 

Such vociferous debates and the strong divisions that they lay bare make it clear that Tunisians are very much torn on the issue of Islam and politics. Read more specifically, although a large majority of Tunisians wants a significant role for Islam in the country’s politics, many of them are simultaneously uncomfortable with it playing that role―especially in a period of transition and relative uncertainty as has existed over the last few years[13]―or at least are unsure how it can constructively and productively do so.[14] At the same time, those Tunisians who are against Islam playing a role in politics often have very strong convictions in this regard. Overall, then, the significant antipathy and doubts regarding Islam in politics and more generally in the public sphere make Islamically influenced justice measures highly unsuitable for incorporation into a transitional justice process. This is because they would tend to breed discomfort, uncertainty, opposition, and polarizing debates in relation to that process, and thus would almost certainly risk undermining it.

Implementation of Islamic Compensation (Diyat) in Aceh

These observations about why drawing upon the Islamic tradition would not be an effective part of Tunisian transitional justice can also help us to understand reactions to the limited inclusion of Islamic justice measures in Aceh, Indonesia. In Aceh, the transitional justice process proceeded in fits and starts beginning in 1998, with renewed fighting between the Free Aceh Movement and the government interrupting the peace process multiple times until the peace agreement of 2005. Since then, it has expanded significantly―though not without problems―and has incorporated or has planned to include amnesty, demobilization, disarmament and decommissioning, a truth and reconciliation commission, and reintegration.[15] As part of reintegration efforts, there have been compensation programs for conflict victims. One of these programs is based upon the Islamic legal concept of diyat, which refers to payments made to the victim’s family in the case of intentional or unintentional murder and which according to classical Islamic jurisprudence should be 100 camels.[16]

The diyat program was put in place in 2002 by then-deputy governor of Aceh Azwar Abubakar at a time of severe fighting in the province, but administration of it was subsequently taken up by the Aceh Reintegration Agency (Badan Reintegrasi Aceh, or BRA) in 2005. The origins of the program lie in the belief of local officials that the fighting was being fueled by revenge murders for slain family members.[17] Within a provincial context where Islamic law was already being partially implemented―as a result of a 2001 Indonesian law that granted greater autonomy to Aceh, in the hopes that this would help to quell the separatist-fuelled conflict[18]―the diyat program sought to put a halt to the fighting by drawing upon classical Islamic jurisprudence as a basis for compensating victims. This Islamically rooted compensation to victims continued once the fighting had ended. In fact, in 2011 over 30,000 families were to receive diyat payments, representing about 22 percent of the BRA’s total funds for that year.[19]

The implementation of Aceh’s diyat program has been strongly criticized because it has not been embedded in a wider set of transitional justice processes.[20] The various criticisms are certainly very important and suggest a program with many serious problems. For the purposes of this article, however, it is significant that the criticisms do not center upon the legitimacy of an Islamically rooted legal concept to constructively inform Acehnese transitional justice.

Popular Acceptance of Islamic Law

Islamic law has been operational in Aceh since at least the 16th century, if not earlier, and was a popularly accepted and thus legitimate part of the province’s overlapping legal systems prior to and during the period of Dutch colonization that began in the late 1800s.[21] While the purview of Islamic law was reduced during the first decades after Indonesian independence, the salience of Islam and of Islamic law as key elements in Acehnese identity did not decrease and in fact became if anything more important during the struggle with the Indonesian government after 1989. Significantly, the broader implementation of Islamic law in the province since the 2001 law granting greater autonomy to Aceh seems to have been accepted as legitimate by the vast majority of Acehnese. This is not to say that there have been no reports of dissatisfaction relative to shari‘a, particularly among the small number of non-Muslim Acehnese since Islamic law was made applicable to them.[22] But such protests do not detract from the overall sense that Islamic law is popularly seen as an integral and accepted part of the province’s justice system, a sense that is reinforced by the noticeable absence of widespread protest and divisive debates about it.[23] In such a climate, drawing on a justice measure whose roots are Islamic, such as diyat, is highly likely to be accepted as legitimate among the vast majority of citizens, which in turn greatly facilitates its ability to positively contribute to the larger transitional justice process if properly implemented.

Conclusion

Our examination of Tunisia and Aceh, Indonesia has made clear the importance of local cultural and religious practices being rooted in a larger belief system that enjoys widespread legitimacy and popular acceptance, and has argued that a key way of judging this is by first determining whether the belief system has defined and been accepted as defining the public sphere and the politico-legal system. The article has also noted that drawing upon local practices can necessitate adapting and reinterpreting them such that they fit with the goals of transitional justice. It is here that work remains to be done relative to Islamically influenced justice measures, as was noted in the report from the workshop on post-conflict justice and Islam organized by USIP and referred to earlier. Yet the existence of such challenges does not undermine the ability of local cultural or religious practices, including the Islamic legal tradition within the right national setting, to positively contribute to transitional justice. Rather, it represents an opportunity for transitional justice to continue to evolve by flexibly adapting to particular contexts as part of an effort to maximize local agency and thus ultimately contribute to its own overall success.

Note: I would like to thank Line Khatib and Kirsten J. Fisher for their valuable comments on a draft of this article.


[1] Sierra Leone and Uganda, for example, used traditional rituals to promote reconciliation and reintegration. South Africa’s justification of restorative justice mechanisms was based upon the concept of Ubuntu. Rwanda implemented traditional Gacaca community courts to promote social peace and cohesion and to mete out punishments. See: Cecily Rose and Francis M. Ssekandi, “The Pursuit of Transitional Justice and African Traditional Values: A Clash of Civilizations – The Case of Uganda,” International Journal on Human Rights 7, no. 4 (2007): 100-125; Landon E. Hancock and Aysegul Keskin Zeren, “Whose Truth, Whose Justice?: Religious and Cultural Traditions in Transitional Justice,” Journal of Religion, Conflict, and Peace 4,  no. 1 (Fall 2010); Bronwyn Leebaw, “Legitimation or Judgment? South Africa's Restorative Approach to Transitional Justice,” Polity 36, no. 1 (October 2003): 23-51; and Hanneke Stuit, “Ubuntu, the Truth and Reconciliation Commission, and South African National Identity,” Thamyris/Intersecting 20 (2010): 83-102. For further information on traditional justice measures, see  “What is Transitional Justice?,” International Center for Transitional Justice,  http://ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice-20….

[2] See, for example, Hancock and Zeren, “Whose Truth, Whose Justice?”; Daniel Philpott, “What Religion Brings to the Politics of Transitional Justice,” Journal of International Affairs 61, no. 1 (Fall/Winter 2007): 93-110; and Daniel Mekonnen, “Indigenous Legal Tradition as a Supplement to African Transitional Justice Initiatives,” African Journal on Conflict Resolution 10, no. 3 (2010): 101-122.

[3] Anne Massagee, “Building a Future, Exhuming the Past: The Struggle for Accountability in the Wake of Regional Uprisings,” Kirsten Fisher and Robert Stewart, eds., Transitional Justice and the Arab Spring (Abingdon, Oxon: Routledge, 2014): 37-39.

[4] “ICTJ Welcomes Tunisia’s Historic Transitional Justice Law”; “Organic Law on Establishing and Organizing Transitional Justice,” on file with author; “What is Transitional Justice?”; Monica Marks, “Tunisia’s Transition Continues,” Foreign Policy, 16 December 2013, http://mideastafrica.foreignpolicy.com/posts/2013/12/16/tunisias_transi…; Wahid Ferchichi, “Tunisia’s Law of Transitional Justice: Promises and Pitfalls,” The Legal Agenda, February 10, 2014, http://english.legal-agenda.com/article.php?id=585&lang=en#.U4c5tRbe5g0.

[5] “Tunisia Forms Commission to Compensate Ben Ali Victims,” 20 May 2014, https://www.ictj.org/news/tunisia-forms-commission-compensate-ben-ali-v….

[6] “Tunisians Disaffected with Leaders as Conditions Worsen: Doubts about Democracy, Most Support Political Role for Islam,” Pew Research Center, Global Attitudes Project, 12 September 2013, http://www.pewglobal.org/files/2013/09/Pew-Global-Attitudes-Project-Tun…; “Most Muslims Want Democracy, Personal Freedoms, and Islam in Political Life: Few Believe U.S. Backs Democracy,” Pew Research Center, Global Attitudes Project, 10 July 2012, http://www.pewglobal.org/2012/07/10/chapter-3-role-of-islam-in-politics/.  Neither survey offers a definition of what respondents understand by the term “Islam.” Nor is it clear that respondents were offered a definition by the surveyors. Given that Islam is a highly diverse tradition, it is therefore possible, and even likely, that there are multiple understandings of the term at work in this finding.

[7] “Tunisians Disaffected with Leaders as Conditions Worsen”; “Tunisia: Divided & Dissatisfied with Ennahda,” Zogby Research Services, September 2013, http://b.3cdn.net/aai/b8cc8e61b78158d847_8pm6b1oog.

[8] “Analyzing Post-Conflict Justice and Islamic Law,” PeaceBrief, United States Institute of Peace, March 23, 2011: 2-3.

[9] “Analyzing Post-Conflict Justice and Islamic Law,” 3.

[10] “Analyzing Post-Conflict Justice and Islamic Law,” 3.

[11] Michael Koplow, “Why Tunisia’s Revolution Is Islamist-Free,” Foreign Policy, January 14,  2011.

[12] Malika Zeghal, “Competing Ways of Life: Islamism, Secularism, and Public Order in the Tunisian Transition,” Constellations 20, no. 2 (2013): 254-274.

[13] Zeghal, “Competing Ways of Life.”

[14] This to some degree explains the apparent discrepancy between the fact that more than 80 percent of Tunisians strongly support Islam playing a role in the country’s political life and strongly believe that Islam is an important and constructive influence in the country’s politics, yet only around 40 percent voted for political Islamic candidates in the 2011 elections. This contradictory stance is likely due to a confluence of factors, including lingering doubts about political Islamists due to their being very negatively portrayed by previous regimes; an instinct to cleave toward the familiar secular system, particularly at a time of transition; a sense that the existing political Islamic actors are not articulating and representing the vision of an Islamic influence in politics that they want; dissatisfaction with the performance of the country’s existing political Islamic actors since 2011; and basic lack of support for the country’s existing political Islamic actors. 

[15] Ross Clarke and Galuh Wandita Samsidar, “Considering Victims: The Aceh Peace Process from a Transitional Justice Perspective,” International Center for Transitional Justice (ICTJ), January 2008.

[16] Leena Avonius, “Reintegration: BRA’s Role in the Past and its Future Visions,” Crisis Management Initiative: 21; Edward Aspinall, Peace Without Justice? The Helsinki Peace Process in Aceh (Geneva, Switzerland: Centre for Humanitarian Dialogue, 2007): 25.

[17] Aspinall, Peace Without Justice? 25.

[18] “Special Autonomy Law on Nanggroe Aceh Darussalam (NAD) Law No. 18 of 2001,” http://www.kbri-canberra.org.au/s_issues/aceh/aceh_specautonomy.htm.

[19] Avonius, Reintegration, 12-13.

[20] Read more specifically, it has been criticized for not being joined to a truth-telling process and not being part of a holistic set of justice measures; for assuming that acceptance of the payments implies that victims have forgiven and are willing to move on; for the fact that payments are given by the government while classical Islamic jurisprudence stipulates that it should come from the perpetrator’s family (with supporters of diyat counterarguing by analogy from a tradition of the Prophet that the government should pay when it did not protect the victim or identify the killer); for lack of transparency in decision-making surrounding who would receive diyat; for occasional disruptions in payments (notably in 2010); and for favoring payments to former fighters rather than victims’ families. See Aspinall, Peace Without Justice? 25-26; Avonius, Reintegration, 21-22; Clarke and Samsidar, “Considering Victims.”

[21] “Access to Justice in Aceh: Making the Transition to Sustainable Peace and Development in Aceh,” a report prepared for UNDP Indonesia, 46, http://www.undp.or.id/pubs/docs/Access%20to%20Justice; Ratno Lukito, Legal Pluralism in Indonesia: Bridging the Unbridgeable (Routledge, 2012): 6, 25-26; Mark E. Cammack and R. Michael Feener, “The Islamic Legal System in Indonesia,” Pacific Rim Law & Policy Journal 21, no. 1 (January 2012): 13-42.

[22] Hotli Simanjuntak and Ina Parlina, “Aceh Fully Enforces Sharia,” The Jakarta Post, February 7, 2014, http://www.thejakartapost.com/news/2014/02/07/aceh-fully-enforces-sharia.html; Hotli Simanjuntak, “Sharia Should Not Apply for non-Muslims: Aceh Ulema,” The Jakarta Post, February 8, 2014, http://www.thejakartapost.com/news/2014/02/08/sharia-should-not-apply-n….

[23] Aaron Connelly, “Does Aceh Want Shariah?” The Interpreter, 21 September 2010,  http://www.lowyinterpreter.org/post/2010/09/21/Does-Aceh-want-Shariah.a…;; “Access to Justice in Aceh: Making the Transition to Sustainable Peace and Development in Aceh.” Report prepared for UNDP Indonesia, http://www.undp.or.id/pubs/docs/Access%20to%20Justice; “Aceh's Sharia Court Opens,” BBC News, 4 March 2003, http://news.bbc.co.uk/1/hi/world/asia-pacific/2816785.stm. Note that in the above-cited pieces and other commentaries, many Acehnese emerge as quite moderate in the interpretation of sharia law that they support, with the implication that their support could slip if a more hard line position were adopted.