Transitional Justice and the Arab Spring This book presents a varied and critical picture of how the Arab Spring demands a re-examination and re-conceptualization of issues of transitional justice. It dem- onstrates how unique features of this wave of revolutions and popular protests that have swept the Arab world since December 2010 give rise to distinctive concerns and problems relative to transitional justice. The contributors also explore how these issues in turn add fresh perspective and nuance to the field more generally. In so doing, it explores fundamental questions of social justice, reconstruction and healing in the context of the Arab Spring. Including the perspectives of academics and practitioners, Transitional Justice and the Arab Spring will be of considerable interest to those working on the politics of the Middle East, normative political theory, transitional justice, international law, international relations and human rights. Kirsten J. Fisher is a researcher at the Human Rights Research and Education Centre, University of Ottawa and an affiliated research fellow at the Erik Castrén Institute of International Law and Human Rights, University of Helsinki. She is the author of Moral Accountability and International Criminal Law and Transitional Justice for Child Soldiers. Robert Stewart is a researcher at McGill University’s Interuniversity Consortium for Arab and Middle Eastern Studies, and has recently returned to his doctoral studies at the University of Exeter. His work focuses on Islamist groups and Islamist political parties, as well as on transitional justice in the Arab world. Transitional Justice Series Editor: Kieran McEvoy Queen’s University Belfast The study of justice in transition has emerged as one of the most diverse and intel- lectually exciting developments in the social sciences. From its origins in human rights activism and comparative political science, the field is increasingly charac- terised by its geographic and disciplinary breadth. This series aims to publish the most innovative scholarship from a range of disciplines working on transitional justice related topics, including law, sociology, criminology, psychology, anthro- pology, political science, development studies and international relations. Titles in this series: Transitional Justice, Judicial Truth, Denial and Transition: The Accountability and the Rule of Law Contested Past in Northern Ireland Hakeem O. Yusuf (2010) Cheryl Lawther (2014) The Era of Transitional Justice: Transitional Justice and the Arab Spring The Aftermath of the Truth and Edited by Kirsten Fisher and Robert Stewart (2014) Reconciliation Commission in South Africa and Beyond Forthcoming titles in the series: Paul Gready (2010) The Concept of the Civilian The Dynamics of Transitional Justice Claire Garbett Lia Kent (2012) The Judiciary and the Politics of Gender Politics in Transitional Transition: Saviours, Scoundrels, Justice Scapegoats Catherine O’Rourke (2013) Marny Requa Identity, Reconciliation and Transitional The Art of Post-Dictatorship: Ethics and Justice Aesthetics in Transitional Argentina Nevin T. Aiken (2013) Vikki Bell Corporate Accountability in the Context International Trials and Reconciliation of Transitional Justice Janine Clark Sabine Michalowski (2013) The Trouble with Truth: Dealing with the Families of the Missing Past in Northern Ireland Simon Robins (2013) Kieran McEvoy Transitional Justice Theories Transitional Justice, Peace and Edited by Susanne Buckley Zistel, Teresa Koloma Beck, Democracy: Conflict Resolution in Christian Braun, Friederike Mieth (2014) Context Elin Skaar, Camila Gianella and Trine Eide Transitional Justice and the Arab Spring Edited by Kirsten J. Fisher and Robert Stewart First published 2014 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 a GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2014 Kirsten J. Fisher and Robert Stewart The right of Kirsten J. Fisher and Robert Stewart to be identified as editors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Transitional justice and the Arab spring / edited by Kirsten J. Fisher, Robert Stewart. pages cm. – (Transitional justice) Includes bibliographical references and index. ISBN 978-0-415-82636-5 (hardback) – ISBN 978-0-203-43114-6 (ebk) 1. Law–Political aspects– Arab countries. 2. Transitional justice–Arab countries. 3. Arab Spring, 2010- I. Fisher, Kirsten, editor of compilation. II. Stewart, Robert, editor of compilation. KMC70.T73 2014 340’.115–dc23 2013043458 ISBN: 978-0-415-82636-5 (hbk) ISBN: 978-0-203-43114-6 (ebk) Typeset in Baskerville by Servis Filmsetting Ltd, Stockport, Cheshire Contents Notes on Contributors vii Foreword xi Anthony f. LAng Jr. After the Arab Spring: a new wave of transitional justice? 1 Kirsten J. fisher And robert stewArt PART ONE The context and getting Arab Spring transitional justice right 15 1 The Arab world after the popular uprisings: a spirit restored? 17 bAsseL f. sALLouKh 2 Building a future, exhuming the past: the struggle for accountability in the wake of regional uprisings 36 Anne MAssAgee 3 Transitional justice in the wake of the Arab uprisings: between complexity and standardisation 54 hAbib nAssAr 4 Difficult but ultimately rewarding: lessons from transitional justice in Latin America 76 Andrew g. reiter 5 The costs of avoiding transitional justice: lessons from Lebanon 94 orA szeKeLy vi Transitional Justice and the Arab Spring 6 Risks and rewards: lessons from Central and Eastern Europe’s transitional justice experiences 112 KLLOAuNs DLbOAOcNNhD MAOnNn, robert stewArt And Kirsten J. fisher PART TWO Issues pertaining to Arab Spring transitional justice 129 7 Challenges of representation and inclusion: a case study of Islamist groups in transitional justice 131 Line KhAtib 8 Transitional justice and the Arab Spring from a gender perspective 151 eLLOhANMD MOAnNe A 9 Egypt and the struggle for accountability and justice 172 MichAeLL wOANhiDdO hNAn nA 10 Justice after the war: The International Criminal Court and post-Gaddafi Libya 188 MArK Kersten 11 Selectivity, legitimacy and the pursuit of post-Arab Spring international criminal justice 208 Kirsten J. fisher 12 Transitions in the Middle East and North Africa: new trajectories and challenges for transitional justice? 226 hugo vAn der Merwe Index 239 Notes on Contributors Klaus Bachmann is a Professor of Political Science at the University of Social Sciences and Humanities in Warsaw, Poland. Previous assignments include The American Institute for Contemporary German Studies at Johns Hopkins University in Washington, DC, the Center for European Studies at Renmin University, Beijing and the Universities of Stellenbosch, South Africa, Vienna and Bordeaux. He specialises in European integration and transitional justice and is the author (together with Thomas Sparrow-Botero and Peter Lambertz) of When Justice Meets Politics: Independence and Autonomy of Ad Hoc International Criminal Tribunals (Peter Lang International, 2013). Kirsten J. Fisher is a researcher at the University of Ottawa’s Human Rights Research and Education Centre, an adjunct Professor in the School of Political Studies and an affiliated research fellow at the Erik Castrén Institute of International Law and Human Rights at the University of Helsinki. She is the author of Moral Accountability and International Criminal Law (Routledge, 2012) and Transitional Justice for Child Soldiers (Palgrave Macmillan, 2013). She writes on issues of transitional justice, specifically post-atrocity accountability, and is an associate editor of the Finnish Yearbook of International Law. Michael Wahid Hanna is a senior fellow at The Century Foundation. He works on issues of international security, international law and US foreign policy in the Middle East and South Asia. He has published widely on US foreign policy, arab politics and international law, including articles in the New York Times, Los Angeles Times, Boston Globe, New Republic, Democracy, Middle East Report and World Policy Journal, and contributes frequently to Foreign Policy. He served as a consultant for Human Rights Watch in Baghdad in 2008. Prior to joining Century, Hanna was a senior fellow at the International Human Rights Law Institute. He received a JD from NYU School of Law. Hanna is a term- member of the Council on Foreign Relations. Mark Kersten is a PhD student in international relations at the London School of Economics where his research focuses on the effects of the International Criminal Court’s investigations and arrest warrants on peace processes in viii Transitional Justice and the Arab Spring Libya and northern Uganda. Kersten is also the creator and co-author of Justice in Conflict, a blog that examines the challenges and dilemmas of pursuing justice in the context of ongoing and recently concluded conflicts. In addition to his studies, Kersten has worked as a researcher for Lawyers for Justice in Libya, Justice Africa and the Refugee Law Project. Line Khatib is a senior fellow at the Interuniversity Consortium for Arab and Middle Eastern Studies (ICAMES), McGill University (Canada), and an Assistant Professor at the American University of Sharjah (United Arab Emirates) where she teaches political science. She is the author of a number of works including Islamic Revivalism in Syria: the Rise and Fall of Ba´thist Secularism (Routledge, 2011) and ‘Islamic Revival and the Promotion of Moderate Islam from Above’ (2013). Her research interests lie within the fields of comparative politics, religion and politics, and authoritarianism and democratisation in the Arab region, with a particular focus on Islamic groups as political movements. Anthony F. Lang, Jr. is Professor in the School of International Relations at the University of St Andrews, holds a Chair in International Political Theory, and also directs the Centre for Global Constitutionalism. He has taught at the American University in Cairo and served as a programme officer at the Carnegie Council for Ethics in International Affairs. His research and teaching focus on international political theory, global constitutionalism, the just war tradition and Middle East politics. Elham Manea is an Associate Professor (Privatdozentin) of Political Science at the University of Zurich specialising in the Middle East. She is also a writer, a human rights activist and is of dual nationalities, Yemeni and Swiss. She has published academic and non-fiction books in English, German and Arabic in addition to two novels in Arabic. Her latest academic book is entitled The Arab State and Women’s Rights: The Trap of Authoritarian Governance (Routledge, 2011). She works at the Political Science Institute, University of Zurich and is a consultant for Swiss government agencies and international human rights organisations. She is a Member of the Federal Commission for Women Affairs. Anne Massagee is an expert in human rights and transitional justice in the Middle East and North Africa, with over 20 years of experience across the region. From 2006 to 2013, she worked for the International Center for Transitional Justice, and previously with such NGOs as al-Haq: Law in the Service of Man and Amnesty International. She has authored numer- ous publications on human rights and humanitarian law, including, most recently, ‘Beyond Compensation: Reparations, Transitional Justice and the Palestinian Refugee Question’, in Compensation to Palestinian Refugees and the Search for Palestinian/Israeli Peace (available online at www.peacepalacelibrary. nl/ plinklet/index.php?ppn=357965604). She has an LLM in International Human Rights Law from the University of Essex (UK) and a BA in History from Emory University (US). Notes on Contributors ix Habib Nassar has 15 years of experience working on human rights and tran- sitional justice in the Arab region. He is currently the Director for the Middle East and North Africa at PILnet. Before joining PILnet, he advised the UN Office of the High Commisioner for Human Rrights on transitional justice in North Africa, worked at the International Center for Transitional Justice where his positions included Director of the MENA Program, and worked for several grassroots and international human rights groups. He teaches transi- tional justice and human rights at Hunter College in New York. He has an LLM from New York University, an MA in International Law from Université Paris II and a law degree from Université Saint-Joseph in Beirut. Andrew G. Reiter (PhD, University of Wisconsin-Madison) is an Assistant Professor of Politics at Mount Holyoke College, where his teaching and research focus on political violence, conflict-resolution, and transitional justice. He is co-author of Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (United States Institute of Peace Press, 2010) and has published widely on global transitional justice processes. Reiter is co-founder of the Transitional Justice Data Base, a project that has developed a global dataset of transitional justice mechanisms, and he is also a collaborator on two ongoing transitional justice data collection projects funded by the National Science Foundation. Bassel F. Salloukh is Associate Dean of the School of Arts and Sciences and Associate Professor of Political Science at the Lebanese American University (LAU) in Beirut. He is author, co-author and co-editor of a number of books, chapters and journal articles on Arab politics, the domestic and foreign poli- tics of Lebanon and Syria and Middle East international relations, including Beyond the Arab Spring: Authoritarianism and Democratization in the Arab World (Lynne Rienner Publishers, 2012), Mapping the Political Landscape: An Introduction to Political Science, 2nd edn (Nelson Publishers, 2007) and Persistent Permeability: Regionalism, Localism, and Globalization in the Middle East (Ashgate Publishing Limited, 2004). Robert Stewart is a research fellow at McGill University’s ICAMES, has worked as a researcher at the Montreal Institute for Genocide and Human Rights Studies run by Lieutenant-General (retired) Roméo Dallaire and Professor Frank Chalk, and has recently returned to his doctoral studies at the University of Exeter. His work focuses on Islamist groups and Islamist political parties, as well as on transitional justice in the Arab world. His most recent publication is a co-authored chapter on Syria entitled ‘The Secular Uprising and the Possible Resurgence of Post-Islamism’, in Popular Protest, Politics and Post-Islamism in the New Middle East (IB Tauris). Ora Szekely is an Assistant Professor in the Department of Political Science at Clark University in Worcester, MA, where she teaches classes on civil war, comparative politics and the politics of the Middle East. Her research examines the consequences of the domestic and foreign policy decisions made by non- state military actors in the Middle East. Her current book project explores the