In recent years the involvement of economic elites and business in corruption has come under increasing scrutiny. In response, transitional justice has also come under pressure to address the link between the private sector, corruption and human rights violations during conflicts or a period of repression.
In Tunisia, the transitional justice process has opted to engage non-judicial mechanisms to tackle the role of economic elites in corruption. However, it will be argued that truth commissions of this kind are not sufficient to achieve justice and support the transition to a stable society.
Transitional justice, corruption and private sector
Corrupt practices in the private sector often play a significant role in contributing to serious human rights violations. The term corruption has no internationally accepted legal definition, but corresponds to the notion of “the abuse of entrusted power for private gain”. Within this definition is a range of economic crimes, including bribery and embezzlement. Corruption is also linked to the violation of human rights, in particular economic, social and cultural rights. This is because corruption can fuel the exploitation of natural resources and diverts public funds from services. In this way, acts of corruption may constitute, both, an economic crime and a human rights violation. For this reason, dealing with corruption very often becomes an important issue of transitional justice.
In Argentina and Tunisia, efforts to address private sector complicity in corruption and human rights violations have included non-judicial mechanisms, such as truth commissions and arbitration. Whilst experts from the United Nations have endorsed these efforts as a means to promote the aims of truth and justice, they also have warned that truth commissions cannot by themselves replace effective investigations and prosecutions.
Tunisia: dealing with business and corruption outside the court
The trigger for the Arab Spring in Tunisia is hard to pin down, however, corruption, high unemployment and state repression of freedoms are all recognised as catalysts. In fact, Ben Ali’s regime came to be defined by these features - with hundreds of businesses owned by the president and his family the Tunisian economy was designed to benefit the ruling elite. Despite this, international businesses readily engaged in this environment and benefited from culture of nepotism and cronyism that existed. The violations committed during Ben Ali’s regime were not limited to the economic realm, and labour rights for example were also ignored. The demands for bread, freedom, human dignity and social justice that erupted in Tunisia therefore reflected the close synergy that exists between corruption and the erosion of fundamental rights.
In response to widespread corruption and human rights violations, a Truth and Dignity Commission (Instance Vérité et Dignité) was established in December 2013. The Commission aims at revealing the truths of past abuses and holding those responsible to account, as well as providing reparations for victims and achieving national reconciliation. In recognition of the important role that economic elites and business played in the old regime, the Commission will also address the private sector and their responsibility for corruption-based human rights violations.
However, rather than pursuing corporate accountability through the courts, the transitional justice process in Tunisia is focused on promoting economic reconciliation with businesses via two non-judicial mechanisms: the Arbitration and Conciliation Committee, and a proposed Reconciliation Commission.
The term “economic reconciliation” has been used in the Canadian transitional justice context to indicate the attempt to readdress the historic economic deprivation of Aboriginal and First Nation peoples by promoting opportunities to develop their own land and resources. In Tunisia, however, economic reconciliation is employed in a different sense. Though there is no clear definition, Article 1 of the so-called “Economic and Financial Reconciliation Bill”, states that the Reconciliation Commission aims to create a favourable climate to encourage investments, revive the economy and improve confidence in state institutions. This is at odds with general principles of restorative justice, which generally requires the participation of the victim and offender in proceedings that focus on the harm caused by a crime, with aim of securing reparations and reconciliation. Though the arbitration mechanisms introduced in Tunisia echo some of these principles I argue that, in practice, these non-judicial mechanisms risk granting impunity to businesses and the economic elite.
- The Arbitration and Conciliation Committee
Within the Truth and Dignity Commission sits the Arbitration and Conciliation Committee, a body mandated to adjudicate cases of human rights violations and financial corruption. Arbitration can be requested by a victim, an offender or the National Anti-Corruption Commission can refer a case. Submitting to the Committee requires an acknowledgment of guilt on the part of the perpetrator, following which the Committee determines the harm and the remedy. The arbitration award is final and suspends further public prosecutions.
The Committee has just recently started its operation, and by 15 June 2016, had already received 6600 dossiers. Members of the economic and political elite have been some of the first to take advantage of the new arbitration mechanism.
On 5 May 2016, the first arbitration and reconciliation agreement was signed between the State and Mohamed Slim Chiboub, the son-in-law of President Ben Ali. What is concerning is that Slim Chiboub had previously been arrested, on 18 November 2014, on allegations of corruption and money laundering. Other members of the economic elite have also allegedly submitted dossiers to the Committee, including Ben Ali’s brother-in-law Belhassen Trabelsi, who faces charges of fraud and corruption in Tunisia. Whilst Ben Ali’s son in law, Sakher El Materi, who was sentenced to 16 years in prison and fined in absentia for corruption and property fraud, is also alleged to have submitted a dossier.
Though it remains to be seen how the Committee’s work continues, its inception has exposed how the narrative of national economic reconciliation based on a loose notion of restorative justice risks to erase the demand and the need for judicial accountability.
- The Reconciliation Commission
President Beji Caid Essebsi presented the “Economic and Financial Reconciliation Bill” in June 2015. According to the draft law, a new Reconciliation Commission would be established to consider requests made by public officials and businesses that profited from corruption. The Commission would be mandated to calculate the profits made, obtain some form of limited restitution, and in return amnesty would be granted to the individuals involved.
The Reconciliation Commission has been defended on the grounds that it would encourage investment and rescue the Tunisian economy. However, Human Rights Watch have warned that the Commission outcome will be the granting of impunity to those that engaged in and benefitted from corruption.
In Tunisia, the proposal sparked demonstrations with people declaring Manich Msameh (“I will not pardon”). The Bill was also examined by the Venice Commission, which concluded that it lacked independence and would fail to promote the truth in respect of financial corruption. The Economic and Financial Reconciliation Bill had been temporarily shelved, but has recently resurfaced amid huge public criticism.
The rhetoric of reconciliation
In Tunisia, the emphasis on using non-judicial mechanisms seems to be falling short of the chief aim of the transitional justice law, that is, holding those responsible for corporate-related human rights violations to account. One of the reason in laws for this is that restorative justice principles are not being adhered to.
First, the high-profile settlements agreed via the Arbitration and Conciliation Committee are between the state and the individual perpetrator – thereby excluding the people whose rights were affected from participating and demanding just satisfaction in the process. As a result, there is no meaningful participation or oversight to guarantee that the remedy is adequate to warrant reconciliation, yet the economic elite of the past regime is rewarded with what essentially amounts to an amnesty.
Second, the Reconciliation Commission does not require an apology for an offender to participate, thereby erasing the need to acknowledge the damage caused by the crime. In addition, the blanket amnesties provided for in the Bill disregards the important role of the threat of criminal sanctions in ensuring that non-judicial mechanisms deliver an adequate remedy.
For a reconciliation process to address the role of businesses in corruption and human rights violations via non-judicial mechanisms in a fair and just manner, I argue that certain conditions must be fulfilled. These include, but are not limited to, the following:
- Any non-judicial mechanism must be independent and meet international standards to effectively discharge the state’s duty to investigate, and provide effective remedies for corporate-related human rights violations.
- Restorative justice principles of participation and reparations must be fulfilled, as it is only once these elements are met that reconciliation may be achieved.
- The threat of criminal sanctions must remain real. This is necessary both as a means to coerce businesses to engage with the restorative justice process, and because those affected must have recourse to judicial sanctions.
President Beji Caid Essebsi has put national reconciliation at the heart of the transitional justice agenda in Tunisia, ‘no matter the cost’. In the process, however, the aims of truth, preserving of memory, accountability, reparations and institutional reform are at risk of being ignored, especially in relation to businesses involved in corruption.
It is crucial to remember what is laid down in Article 15 of Tunisia’s transitional justice law itself: “[r]econciliation shall not mean impunity and lack of accountability for those responsible for violations”.
However, when reconciliation is sought via non-judicial mechanisms that fail to adhere restorative justice principles corporate accountability cannot be achieved.