No subject has been more important since the 30 June Revolution than that of transitional justice. This is the avenue towards the realisation of one of the most important demands of the Egyptian revolution: retribution for the deaths and other forms of serious harm caused by those responsible for the political, organisational and financial corruption in the country. It is a process that seeks to minimise unbridled vengefulness and to end the cycle of hatred, in order to allow society to heal itself from the animosities of the past and to move forward. Unfortunately, the government of transitional Prime Minister Hazem Al-Beblawi has yet to produce a vision for the policies and legislation necessary to give life to this overlooked duty ordained by the 25 January Revolution. Perhaps the task appears too difficult to broach at this time in view of the challenges posed by political tensions and the lack of security in the streets. But what is certain is that the creation of a transitional justice law to replace the ordinary criminal law as the instrument for handling the retribution process would contribute greatly to the restoration of calm and to ensuring the success of the path to the future that was endorsed by the people during the 30 June Revolution. But where do we begin with such a law and such a process? The experiences of other countries that have preceded us on the path to revolution and democratic change can provide many of the answers. Former UN secretary-general Kofi Annan has described transitional justice as more valuable and less costly than ordinary criminal justice, which in many instances has failed to yield the desired results. He presumably based his assessment on the experiences of some 40 countries that have instituted systems of transitional justice following civil war or periods of widespread civil strife, or after the end of dictatorial rule and at the beginning of a process of democratic transformation. Undoubtedly, the concept could also apply to the transition from foreign occupation and towards independence when transitional justice procedures are similarly required. The concept of transitional justice is, by definition, an interim arrangement. It does not preclude recourse to the criminal justice system to prosecute people for murder, looting and destruction, along with other crimes. What is crucial to the concept is that it is not merely legalistic. It is a holistic concept that takes into account a variety of political and social factors such as the need for communal peace, the circumstances pertaining to the level of development of the country in question, and, of course, humanitarian considerations. Although the idea of transitional justice has gained currency over the past four decades, especially since the Moroccan experience in 1997 under the government of Abdel-Rahman Al-Youssefi that gave rise to much discussion and literature on the subject, the concept may still remain confusing to many, especially in terms of its relationship to the principles of conventional justice. Regrettably, there have also been instances in which the concept has been abused or misapplied, compounding the confusion and leading some to believe that the process has been more of an instrument for collective vengeance than a route towards a healthy transition. Campaigns to eliminate or marginalise the political parties and affiliates of the former regimes in Iraq, Libya, Tunisia, Yemen and elsewhere have triggered endless debates that have fed rather than reduced the existing acrimony and tensions in these societies. This in turn has contributed to distorting the concept of transitional justice in some people's minds. If international experiences with transitional justice have varied in approach between the logic of rupture with the past and that of continuity, the Arab Spring revolutions have thrown the subject into relief in other terms. In these countries, the debates have been framed within the context of the “new legitimacies” that arose following the fall of the “old legitimacies” and opinions have varied between a vehement insistence on the “isolation” of partisans and affiliates of the former regimes and a more flexible approach to the principle of transitional justice. Nevertheless, the predominant outlook has favoured exclusion and it has also been characterised by the insistence on applying criteria from the domestic criminal justice system to the new circumstances. This attitude has prevailed in particular among the revolutionary youth and some of their leadership. The controversy, with its particular polarities, has wended its way into the press and into parliament, and eventually it has found expression in some draft legislation and in the wordings of some constitutional provisions. Although the new legitimacies in the countries of the Arab Spring have yet to take root in the form of legal frameworks that establish the rule of law, it is important to ensure that the interim phases are endowed with a mode of justice that combines the principles and methods of criminal litigation with a range of complementary social and political processes that promote national reconciliation, this, after, all, being the chief aim of transitional justice. Indeed, the implementation of such a mode of justice is all the more crucial at a time when, firstly, the desire for political isolation laws is still strong and often rears its head in ugly ways in public discourse in tandem with flare-ups in political tensions, and when, secondly, broader segments of the populace have become politically engaged after decades of having been barred from political expression. Because different countries have chosen modes of transitional justice tailored to their own circumstances and experiences, it is impossible to clone or import any one particular format. Nevertheless, it is extremely useful to study all of them. The Argentinean experience in Latin America, for example, was largely shaped by the enormity of the crimes that had been committed under the previous regime and the large number of people complicit in them. If ordinary criminal justice had been brought to bear, there would have been an endless series of investigations and prosecutions, the circumstances and results of which would have worked to deepen social divides and perhaps lead to anarchy. Therefore, those steering the democratic transformation process in Argentina chose instead to “bury” many cases and to restrict the retribution process to a relatively few number of officials in the interest of promoting reconciliation and the restoration of social peace and harmony. The South African experience after the end of the apartheid regime in the early 1990s, spearheaded by Nelson Mandela, proceeded from the premise that people should live for the future rather than remain mired in the past, and that there must be a settlement between the country's majority black population and the security establishment. The Chilean experience, which followed a long conflict between a dictatorial government and the opposition, opted for a middle course. The opposition agreed to let General Augusto Pinochet, who had led the military coup against the government of president Salvador Allende in 1973, issue a blanket amnesty for the members of the army responsible for the deaths of over 3,000 people and the torture of thousands of others in exchange for holding new democratic elections. Following the promulgation of a new and more democratic constitution, the opposition swept the board in the Chilean elections in 1988. In other words, the dictatorial regime in Chile was brought to an end by a political pact between the government and the opposition. This may have been the only viable solution after years of a conflict that was likely to drag on indefinitely as neither side could gain the upper hand. In Poland and Hungary after the fall of the communist regimes in Eastern Europe in 1989, the logic of continuity served as a basis for the way forward. A portion of the existing regimes and the opposition succeeded in striking agreements that enabled these countries to make a smooth transition from a totalitarian epoch to a democratic one. Elsewhere in Eastern Europe, Czechoslovakia followed a somewhat similar course in which a portion of the ruling authorities recognised the opposition and the two sides agreed to create a new democratic constitution and hold elections within that framework. East Germany, by contrast, made a total break with the past when it united with the Federal Republic by applying the latter country's accountability laws. The Moroccan experience in transitional justice after 1997 has been unique in that it has offered the opportunity to the new government to implement democratic reforms within the framework of a political accord in which the will of the monarch has been aligned with that of the opposition and civil society in particular. It is noteworthy that human rights organisations in Morocco have been instrumental in mobilising this drive, which has set in motion a smooth and largely non-acrimonious transformation and a form of transitional justice that has responded to the particular needs of the Moroccan experience. There will always remain unanswered questions with regard to the line to be drawn between transitional justice and retaliatory justice, the extent of the leniency that should be applied, or the boundaries of accountability and the exposure of the truth. To what extent and how precisely should justice and accountability or truth and fairness committees be empowered to pursue extrajudicial measures in cases involving actions of a criminal nature that would ordinarily require an independent court to arbitrate? What should be the timeframe for a transitional justice period, especially in the light of the political pressures stemming from demands for the political isolation or professional exclusion of certain parties or segments of society from government or public life? Transitional justice is an extraordinary arrangement, which is to say that it is an inherently interim and temporary process. Its mission is to confront the legacy of the past. It involves criminal justice, compensatory justice and social justice, the instruments of these forms of justice being brought to bear in order to expose the truth, to bring to justice the perpetrators of crimes, and to ensure an acceptable level of material and moral recompense to the victims. It also entails significant reforms to legal structures and executive, judicial and security establishments in order to prevent the repetition of such crimes. The overall aim of transitional justice is to create the climate for a comprehensive national reconciliation that is inspired by the principles of the acceptance of the other, peaceful coexistence and democratic interplay. Here, in particular, is where the courage of the victor to include the defeated must come into play, just as the other side must summon the courage to accept the consequences of defeat and prepare itself to head into the future with a rational spirit in the framework of a democratic process. This, I believe, is the essence of transitional justice. It is not the justice of the victor. It is the establishment of a society's right to change, collectively, in a positive and healthy direction. As such, it seeks not only to bring the perpetrators of injustice to justice, but it also seeks to promote consensus, give voice to the victims and the demands for restitution, change attitudes through awareness-raising, and, ultimately, to achieve national reconciliation. Such a process unfolded in South Africa after 1992, consigning to history a cruel and inhumane apartheid system after decades of struggle. In Argentina, a solidarity movement with the victims of injustice was instrumental in promoting a process of transitional justice, one of the chief cornerstones of which was the preservation of the collective memory of the past in a manner that put to rest the cycle of hatred and revenge. A similar process ended the dictatorship in Chile. Post-Franco Spain also succeeded in turning the tables against the former dictator's government system in order to institute transitional justice. In parts of Eastern Europe after 1989, the spirit of European rationalism was instrumental in ensuring peaceful processes of democratic transition, though, sadly, it took a while for that spirit to prevail in the countries that arose from the former Yugoslavia and in Romania. Will the Arab countries and Egypt in particular succeed in developing a climate and spirit conducive to transitional justice? Not only do we have the experiences of other countries to learn from, but we can also draw on our Arab and Islamic historic and cultural heritage, especially those enlightened aspects that encourage mutual acceptance and understanding and that underscore shared humanitarian values.
