Dealing with colonial legacy through transitional justice: The case of Tunisia
The experience of the Truth and Dignity Commission in Tunisia offers an important precedent for how truth commissions can contribute to addressing and seeking justice for colonial crimes, as demonstrated by Sihem Bensedrine, President of the Truth and Dignity Commission (IVD), in this article.
On 18 July 2019, the Truth and Dignity Commission (IVD) addressed a memorandum to the President of the French Republic ‘concerning the reparation due to the Tunisian victims of the massive violations of human rights and economic and social rights‘. Although the Tunisian law on transitional justice does not explicitly address the issue of the colonial past, the IVD has used the gap in the period addressed in its mandate (July 1955 – December 2013) and the broad definition of the perpetrators of violations and the competences of the Forum. It should be recalled that the IVD, the Tunisian truth commission, was responsible for investigating human rights violations and corruption, defining responsibilities, initiating a judicial accountability procedure, rehabilitating victims and recommending reforms to guarantee non-repetition.
How has the IVD interpreted its mandate in relation to the colonial legacy and what is the legal framework for this initiative?
The Transitional Justice Law obliges the IVD to determine the responsibilities of the state apparatus or any other parties in the violations committed since 1955 (Art.39). In conducting its investigations, the IVD found that some violations that occurred between July 1955 and July 1961 were not committed by the Tunisian State and concluded that the French State was responsible.
Prior to independence, France had signed the Conventions of Internal Autonomy with Tunisia in 1955. These Conventions partly restored Tunisia’s internal sovereignty, but set limits and restrictions. ‘There are competences maintained by the French authorities without any time limit: these are the competences and services that are necessary for them to fulfil their obligations and responsibilities in terms of defence or arising from Article 3 of the Bardo Treaty. These are the military gendarmerie, territorial and border surveillance services as well as the control and surveillance of coastal waters, ports, airfields and air navigation. In the strategic zone of Bizerte-Ferryville and the border zones, special provisions regulate the police powers of the French authorities‘ said Pierre Commin, the rapporteur of the Foreign Affairs Committee before the French Parliament during the debate.
The Protocol of Independence signed on 20 March 1956 reaffirms this principle of interdependence: “France solemnly recognises the independence of Tunisia. It follows […] that those provisions of the Conventions of 3 June 1955 which are in contradiction with the new status of Tunisia as an independent and sovereign State shall be modified or abrogated. This means that the conventions that are not modified or abrogated remain in force. This is what the French diplomatic note of 17 June 1953 recalls. In fact, only the judicial convention will be formally abrogated and replaced by another one that defines a full sovereignty of Tunisia over the judiciary.
Shared sovereignty or co-sovereignty
This was the gap that allowed the IVD to determine the responsibility of the French State in the violations committed. It should be recalled that the IVD had received 5052 complaints, including 3 collective ones, relating to violations that occurred during the French decolonisation, including 650 for the aggression of Bizerte in 1961 alone. In carrying out its investigations, the IVD was able to establish that, between 1956 and 1961, when Tunisia was independent, numerous violations were committed by French troops and resulted in more than 7000 Tunisian victims, including those in the mountains of the south-east and the north, particularly in the border areas with Algeria in the midst of the war of independence.
The French army was responsible for bombing and artillery engagements in the Djebels of north-western and central-western Tunisia between autumn 1955 and spring 1957.
Declassified documents archived at the Centre des archives diplomatiques de Nantes (CADN.46tu900-945) containing minutes of interrogations of prisoners reveal that the French army did indeed carry out punitive expeditions in the mountains of Jebel Agri and Jebel Bouhlel between May and June 1956. The IVD, seized by the families of the victims, carried out an investigation and collected some of the bones of the victims of the bombardments scattered on the mountain at Jbel Agri and Jbel Bouhlel, which it entrusted to the Pasteur Institute for DNA analysis.
On 8 February 1958, under a “droit de suite”, the French air force bombed the border village of Sakiet Sidi Youssef, killing 80 people including schoolchildren.
The Bizerte massacre, undertaken from 19 to 23 July 1961, was a confrontation between the third largest military force in the world and a small country whose army in the process of being formed consisted of a single artillery group, the rest of the combatants being civilians. While the French army had lined up a joint regiment with four air and sea defence companies, some thirty defence sections, a fighter wing, and naval air flotillas. “Strike fast and hard” had ordered General De Gaulle. The result: about 5,000 Tunisians and 27 Frenchmen killed in the engagements.
International humanitarian law framework
In its approach, the IVD also relied on the legal framework provided by international instruments such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Geneva Conventions and the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
Given that the mandate of the IVD also extends to economic and financial violations, the IVD included in its memorandum requests relating to the reparation of the prejudices suffered by Tunisia in this field. The IVD relied on its legal competences, but also on United Nations instruments such as the United Nations Resolution 31/11 dated 21 March 2016 on the ‘Effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights’, and the “United Nations Resolution 34/3 dated 6 April 2017 on the mandate of the Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights.”
The IVD was thus able to demonstrate (through the annexes accompanying the memorandum) that France, as a colonial power, maintained a dominant position in Tunisia and preserved its economic advantages while leaving its former protectorate. French companies retained preferential treatment in the exploration and exploitation of natural and mineral resources, and the agreements concluded deprived the Tunisian state of its sovereign right to terminate or modify the terms of the conventions and concessions in force.
In financial terms, the debt of the young independent Tunisia was multiplied by 25 by the fact of the purchase of colonial agricultural properties and large companies. The Tunisian state reappropriated the land confiscated from Tunisian farmers during colonisation in return for compensation. The same happened with the oil, electricity and railway companies. And once again, the compensation was paid thanks to credits granted by France, which added to the public debt.
Challenges and stakes of the Tunisian initiative
In its memorandum, the IVD demanded reparations including an apology; the payment of pecuniary compensation to the individual victims, to the victimised regions as well as to the Tunisian state in its capacity as victim of the unfair financial arrangements; the restitution of the archives from 1881 to 1963; and the cancellation of Tunisia’s bilateral debt as illegitimate debt.
What is at stake in such an approach is the questioning of the foundations of the domination of the former metropolis over its colonies, which continues through its local networks, where elites loyal to the interests of France are involved and who serve it from positions of influence in the state, thus maintaining the country in a dynamic of underdevelopment generated by this dependence.
This is what the IVD was able to verify in the treatment given to this memorandum. Thanks to the French-language media, which gave wide coverage to the IVD’s approach, and called on the Quai d’Orsay, which had promised to look into the matter with its Tunisian counterparts. The IVD subsequently learned that the Tunisian Foreign Minister had replied that he would not take the matter into account and there has been no follow-up to date.
In return, Tunisian civil society reacted positively to this initiative. The issue is now back on the table and will have an impact on the internal political game in a context of exacerbated economic crisis.
Sihem Bensedrine is a journalist, writer and prominent human rights activist who has received numerous international awards for her struggle from Amnesty International, Human Rights Watch and the Canadian Association of Journalists, among others. She has been imprisoned several times, subjected to persecution and defamation campaigns because of her involvement in Tunisian civil society to denounce human rights violations and defend freedom of expression. She founded the Tunis Centre for Transitional Justice (CTJT) in 2011 and was the President of the Truth and Dignity Commission (2014-2019). She currently runs an association for the preservation of memory ‘Memory and Citizenship’.