Lawyers, “Revolution,” and Transitional J ustice: the Case of Tunisia

1. Lawyers, “Revolution,” and Transitional Justice: the Case of Tunisia Marny Requa, Queen’s University Belfast 11 October 2014 Cornell Law School Post-Uprising Justice Administration conference

2. Overview • Project background and methodology • Tunisia: recent history • Lawyers and legal culture in Tunisia • Cause lawyering and the Ben Ali regime • Lawyers and social movements • Tunisian legal culture and international law • Transitional justice in Tunisia • Observations

3. Lawyers, conflict & transition: Queen’s University Belfast and the University of Ulster TJI • Project funded by the UK Economic & Social Research Council • Aim to explore the role of lawyers – within and outside the courtroom – in societies undergoing or transitioning from violence or authoritarianism • Case studies: Cambodia, Chile, Israel, Palestine, South Africa, Tunisia, building on research in Northern Ireland • Research questions include: • How do lawyers respond to extreme state repression? • What is the role of lawyers in social movements? • How do lawyers contribute to understandings of the “rule of law” in conflict and transition? • How significant is the issue of gender in determining the role of lawyers? • Do local lawyers engage with international law and legal actors? To what end? • How do lawyers contribute to efforts to “deal with the past”?

4. Methodology • Theoretical literature review • Local researcher report and data • Research instrument • 21 interviews (24 individuals) in Tunisia, June 2014 • Activist and “cause” lawyers • Governmental lawyers; new institutions • Politicians • Academics and judges • Local and international NGOs • Legal collective reps (Bar Association; Young Lawyers’ Association) • Data analysis across all jurisdictions (ongoing)

5. Tunisian recent history 1881: French colonization 1956: Independence 1987: Ben Ali presidency begins 2005: 18 October Coalition for Rights & Freedoms 2008: Gafsa Mining Basin Events Photo: AI/ nawaat.org

6. 2010-11: Pressure builds to Fleeing of Ben Ali (Jan 2011); Constitutional Democracy Rally dissolved; elections (Oct) 2013: Political assassinations; Ennahda hands power to caretaker gov 2014: New constitution (Jan); Truth & Dignity Commission (June) Elections (Oct/Nov) Photo: AP 2011 Photo: Morocco World News 2013

7. Lawyers and legal culture in Tunisia 30 December 2010, Tunis City (photo: ahramonline)

8. Cause lawyering and the Ben Ali regime Cause lawyering: • Moral activism … an abandonment of the traditional disavowal that law is political … the professional is political • An “activity that uses law-related means … to achieve greater social justice” (Menkel-Meadow 1998) • A profession “whose function is more than the deployment of technical skills but rather a vehicle through which to build a better society” (McEvoy & Rebouche 2007: 305) “In any conflict situation it is very difficult for a lawyer to be strictly a lawyer” - Priscilla Jana

9. In Tunisia, what ‘causes’? • Representation of political prisoners, Islamists, Salafists, activists • Protecting basic rights of individuals against state or the powerful; challenging corruption • Sexual harassment may be “feminist on the surface but with political waves underneath … the judiciary is implicated … the economic influence of the prosecuted” determines outcomes • Activities • Judicial and political strategies, boycotts, client welfare • “The Bar as a profession was the only opposition party in Tunisia” • Consequences • Pressure, physical assaults, occasional imprisonment; intimidation of clients, Ls’ offices raided and files confiscated, phones cut, cars stolen • The legal community: lawyers’ commitment to the profession often transcended political boundaries • “Even the people who belonged to Ben Ali’s ruling party did not want lawyers to be mistreated” • “They elected me as a member of the Bar Association as a form of protection … they helped me by giving me money”

10. Lawyers and social movements Elitist? Suspicious? Necessary? • Activists first • Keepers of the flame of change (Shdaimah 2006) • Comparative advantage – legal knowledge (Tushnet 1987) • Law is a tactic and a target (Cummings 2013) • Or ‘legal cooptation’ (Lobel 2007)? • Impose own (elite, resourced) agendas (Levitsky 2006) • Legitimate larger structures of domination (Kostiner 2003); support the illusion of functioning rule of law (Sfard 2009) • De-radicalization of movements; support status quo (Albiston 2011) • Litigation should be one element in wider mobilization (Tomik 2005) given limitations of juridical law (Rosenberg 1991) and risks of even successful outcomes (Schoenfeld 2010, Vanhala 2011))

11. Why activism?: “The core of the lawyers in Tunisia is highly politicized”; lawyers had “some kind of immunity” and solidarity • Position within movements: Looked to as leaders; linked to politics – involvement assumed, but to an extent disconnected from youth, grassroots • Effect: Encouraged wide support, law brought imprimatur of justice/morality, but changes not radical – structures remain

12. Post-14 January 2011 focus on building a “rule of law state”, as understood by legal activists • Enact progressive laws and draft new constitution • Negotiate “appropriate” TJ mechanisms, challenge impunity • Lawyers working within the state on reform projects • Political crises • Currently a holding pattern until Oct/Nov elections • Interviewees’ views: lawyers are “Tunisia’s first democrats” or lawyers are “greedy”? • The larger group of lawyers active in the uprising/post-uprising period has been reactive; now back to business, not radical • Major role of lawyers in politics, and of politics in the Bar • Lawyers within government: reformists but pragmatists • Period of upheaval had contained divisions amongst lawyers; now apparent • Thick or thin rule of law agenda?

13. Tunisian legal culture and international law • International law allows some to circumvent oppressive legal system and for resistance within law (Jabareen 2010) • In transition, melding of past, present and future legal cultures (Krygier 2006) • Post-colonial considerations: • Rule of law as norm creation and culture  need significant adaptation of foreign order to the local, and accommodation of local legal heritage (Brooks 2003; Berkowitz 2003) • Cause lawyering can resist colonialism rather than support it • Human rights institutions: where cause lawyers’ concerns can be heard and operationalized, if accompanied by enforcement powers (Hajjar 1997: 475)

14. International law used politically during dictatorship • Trials were “a battle, for us to show that the regime was dictatorial ... It was an opportunity for us to show to the rest of the world … that these were not court hearings just legal theatre. When we plead we would hurt them, and when we would walk out of the courtroom we would hurt them even more” • “Ben Ali ratified international conventions just for the image … judges were furious” when treaties such as the Torture Convention were invoked in court. “It is proof that the regime is not democratic and does not respect its commitments” • International pressure had a “major impact,” and lawyers appealed to foreign media, even to facilitate access to clients • Politicized use of international law continues • Debates over meaning of laws and rights • International law and connections generally valued • Symbols of justice in society • Some resistance to foreign role and role • Viewed as imposing norms, agenda • Sustained engagement with international law and institutions lacking (for better or for worse?) “What is our vision of human rights? The ministry still doesn’t have a clear vision”

15. Transitional justice in Tunisia • Social transition brings ‘paradigm shifts in the conception of justice’ (Krygier 2006; see Teitel 2006) • Has TJ discourse negotiated ‘a cosmopolitan conception’ of justice rather than simply introduced a toolkit? (Bell 2009: 23-27) • Risks: inflexibility, foreign interest, technical approach, disregard of local; law can dominate, overshadow goals • Hopes: challenge impunity and denial, draw on legal tradition, elicit participation, inspire local demand, cross disciplines and demographics • Mediating function of law (Dezalay & Garth 2011); activists as translators (Merry 2008) • But some TJ processes can be a means of absorbing and regulating challenges (Moon 2012)

16. A model of transitional justice? • Ministry of TJ; national dialogue; “exceptional measures” required “new structures” • “Based on the past, it relies on the present to build the future” • Questions raised about enforcement, scope • “The committee itself has been the result of political wheeling and dealing … I’m not sure these people will act with full impartiality and transparency and fairness”. • “Few people understand what transitional justice is” • Contradictory measures; open to challenges? • TJ versus broader reforms and human rights agenda • “We are still suffering from the same practices that prevailed before [regarding] the security apparatus and the judiciary” • “It is important to … undertake major economic and social reforms to ensure progress because people who cannot find bread will not enjoy freedom”

17. Observations / questions • Appetite for change highest after a critical juncture • Politician lawyers as a different breed of cause lawyer: Do they stimulate or undermine projects of reform? • Post-uprising cause lawyering still vital to “thicken” rule of law, and to expand space for non-legal, intergenerational activism and participation • “The only thing that has really changed is that we can express ourselves freely … there are more than 150 political parties now... If we don’t defend our rights we might lose them.” • TJ “mainstreamed” in Tunisia; local interviewees raise questions on implementation. How can the international community exercise power and resources responsibly?

18. More on the project: http://lawyersconflictandtransition.org @lawyers_TJ