Iran Human Rights: Events of the last few years have made the future of the Islamic Republic more uncertain than ever. The economic crisis has pulled a large sector of society into poverty and exposed systematic corruption and the authorities’ incompetence in solving people’s daily problems. Faced with discontent, the Islamic Republic’s only recourse has been to violently repress popular protests. The question is no longer "when” but "how" Iran will transition from authoritarian rule. An unaddressed question that requires an exploration of the alternative models that may fill the power vacuum following the collapse of the Islamic Republic.
Iran Human Rights: Events of the last few years have made the future of the Islamic Republic more uncertain than ever. The economic crisis has pulled a large sector of society into poverty and exposed systematic corruption and the authorities’ incompetence in solving people’s daily problems. Faced with discontent, the Islamic Republic’s only recourse has been to violently repress popular protests. The question is no longer "when” but "how" Iran will transition from authoritarian rule. An unaddressed question that requires an exploration of the alternative models that may fill the power vacuum following the collapse of the Islamic Republic.
Iran Human Rights has invited experts and academics to start the discussion on "Iran in Transition" from their respective specialist fields.
Read more about the aims of "Iran in Transition"
In this essay, Mehrangiz Kar examines "Transitional Justice." You can watch Raha presenting her paper at the end of the essay at the "Iran in Transition" online conference held on 31 January-1 February 2022.
Mehrangiz Kar is an Iranian human rights lawyer, internationally recognized writer, speaker and activist who advocates for the defence of women’s and human rights in Iran and throughout the Islamic world.
Is it possible to achieve a democratic system without creating an "independent judiciary"?
In the process of the transfer of power, can the forces overwhelmed by the joy of overthrowing the "former regime" and establishing a new order, guarantee an "independent judiciary" which can take a neutral approach in the new political system?
This key question is not easy to answer. People in every country, with different political systems, start on the path to "change" in the hope of taking revenge on the perpetrators of oppression and injustice. There is an unwritten rule that commands progressive forces on the path to change, provide the mechanisms and conditions to hold the perpetrators of the previous regime accountable. It is while carrying out this obligation that the judiciary’s officials, judges and executives are replaced with trusted individuals in the new system. The people and groups opposed to the previous system will flood the new judicial system with their complaints based on retaliatory sentiments.
Short-term results
The judiciary will be mired in the retaliation swamp and hasty investigations into the complaints, leaving no room to legitimately and accurately enforce the principles of fair trials. Thus from the outset, the judiciary becomes a place where hasty trials are justified. Human rights laws and the need to protect the rights of the accused are forgotten under the guise of the need to immediately punish the perpetrators of the former regime and to satisfy the people who are impatient for revenge. The political factions involved in the transition and change, each try to influence the judge’s opinion during the hearings according to their own party, group and gang interests. From this point on, the newly established judiciary comes under the domination of the new hubs of political power. Each political power hub tries to play a more prominent role in installing its influential pawns in the judiciary to satisfy its demands.
Long-term results
An "independent judiciary" is the beating heart of a democratic system. How can we prove that an independent judiciary guarantees democracy?
Freedom of expression and the right of the people to criticize, protest, and enjoy independent political and civil parties and organizations, are fundamental rights without which democracy cannot be realised. When the judiciary is not independent, any dissident, critic, or protester can be suppressed and silenced by a political power hub depending on the extent to which they have influence over judicial decisions. Arbitrary detentions are only possible by a non-independent judiciary dominated by political power hubs. In the absence of an independent judiciary, even if independent parties were able to form in the course of change, their survival would be unfeasible. Relying on their pawns within the judicial system, political power hubs can weaken parties by bringing trumped-up charges like acting against national security, against them, gradually moving the system towards a single-party ideological system.
A free press cannot form if the judiciary is not independent. Or if there are opportunities to freely publish, it will gradually disappear with the decline of the judiciary’s independence. The non-independent judiciary is the custodian of censorship at the behest of political power hubs. These hubs will use their pawns within the judiciary to stifle the free press, which is the voice of the people who criticize, oppose, and protest.
On the other hand, the non-independent judiciary turns a blind eye to complaints about electoral fraud and obstructs free elections. Such deterrent measures to restrict freedoms will undermine the democratic order and will not allow democracy to be established, and even if established, will not allow it to develop and endure.
Is there a way to prevent the long-term damage to democracy in the absence of an independent judiciary?
Preventing short-term losses is the first and foremost step that must be taken concurrent with the transfer of power.
But how?
Which patterns of change are available?
How and with what pre-designed model can an independent judiciary be achieved in the process of change and transfer of power?
Before the transition of power in South Africa and the emergence of the model designed by its leaders during the non-violent transition, establishing an independent judiciary in the transitional stages of political systems seemed impossible.
Naturally, as soon as the angry and dissatisfied masses approach victory, they immediately demand the massacre of the perpetrators of the former regime. The most that can be done in order to turn them away from personal revenge and bloodthirstiness, is to give them hope that a new judiciary will be created and immediately put into action to harshly and cruelly address the complaints of the oppressed and excited people. The leaders of the transfer of power will not be able to ignore the waves of vengeance. Nor can they keep the judiciary impartial and hold fair trials with the high volume of complaints.
How has such an important issue related to democracy been dealt with in the modern era? Why is the South African non-violent transition in the late twentieth century referred to as a miracle? Which part of this victory is valued the most by those who teach the South African transition model in universities today? Which feature of this transition is most discussed in the library books across the world and why is it renowned?
Features of the non-violent transition in South Africa
The non-violent transition of power in the South African model managed to control vengeance and introduced a definition of "justice" that did not come close to bloodshed or revenge. Transition leaders devised and implemented methods by which the angry majority could not engage the emerging judiciary in retaliation under the facade of justice. If the newly formed judiciary became the tool for the angry masses from the very beginning, it could not turn into an "independent judiciary" that safeguards and guarantees a democratic and non-discriminatory system.
On the other hand, the leaders of the non-violent transition were faced with the question of how the oppressed people could file complaints without compromising the independence of the judiciary. How could people feel they have achieved justice from the perpetrators of the discriminatory and violent regime (apartheid), without dominating the judiciary?
The leaders spent a lot of time discussing this question in internal and confidential circles. Their main concern was how they could proceed without 90% of the population who were people of color, turning the judiciary into scenes of revenge, torture and execution.
This was such a sensitive concern that the leaders were afraid to share it with the oppressed and colored people who had experienced a bloody history of apartheid. They were concerned about the people's reaction if they adopted a soft and humane approach towards the perpetrators. Eventually, they found the middle ground solution; they hid the idea but implemented it step by step.
The group that came to this conclusion did not discuss it with the people when deciding to set up a Truth Commission as the middle ground solution. They realized that if they conducted a survey, the oppressed black population’s revenge fever would dominate the results and they would be unable to achieve anything less than a type of justice that is closer to bloodthirstiness, which would not be beneficial to the peaceful future of the country and guarantee the independence of the judiciary after the transition.
Thus with this foresight, several anti-apartheid figures conferred for hours, and finally established the Reconciliation Commission. The names of these figures have been recorded in the history of non-violent transition:
The historical context of the transition and the Truth Commission
The African National Congress (ANC) took the first step towards ending apartheid peacefully and entered into negotiations with apartheid officials pre-1990. The roles of this congress are of historical significance. By launching the Congress in 1911, the black elites were able to use it as an anti-apartheid party for many years and survive despite the repression by the apartheid regime. However, the restrictions and arrests reached a point when it became impossible for the Congress to continue its activities inside the country in domestic and confidential circles, forcing it to rebuild and redefine itself in exile. By the time the ANC leadership entered into negotiations with the apartheid regime, the Congress was in exile and the apartheid rulers were ready to change the political situation, realizing that the levels of violence by the black people, led by Nelson Mandela, were steadily rising and the survival of the apartheid regime was not only no longer feasible but would put the lives, property and security of the white population in serious danger.
Finally, through skilful and intelligent negotiations with the then rulers of the apartheid regime, the ANC leaders agreed that the white rulers would abide by an interim Constitution to provide an opportunity for the country to go through an important historical test. What was this historical test?
The ANC leadership had entered into negotiations with the apartheid rulers before 1990 when global conditions were right for such negotiations. The Cold War was over. The black majority of South Africans were engaged in violent protests led by Nelson Mandela from behind bars that demonstrated intolerance of the historical racial discrimination. Nelson Mandela was referred to as a "terrorist" in the Cold War period, but with the end of the Cold War, the West came to the conclusion that South Africa could no longer tolerate apartheid, and that the risk of bloody protests was such that black and white people would be at loggerheads and white minorities would be at risk of extinction. The global order was therefore prepared to put an end to apartheid in South Africa. The outcome of the ANC negotiations with the apartheid regime was that Nelson Mandela was released in 1990 after serving 27 years in prison. Following extensive negotiations with him, the white minority, with the assistance of the ANC, agreed to draft and approve an interim Constitution. In 1994, Nelson Mandela was elected as the first president of South Africa for five years, in the first free elections in which all citizens, of all races, colors, genders and ideologies had the right to vote. The foundations of apartheid collapsed with the participation of all citizens in the elections.
The leaders of the non-violent transition realized that they had to pass another historical test after the transition. They were worried that they would fail the second historical test.
The second historical test was to clarify, in line with the characteristics of South Africa, how to envision a democratic future based on justice at the lowest cost. The leaders insisted that the judiciary should not engage in historical retaliation or be dominated by political factions. This was how the ANC leaders were convinced to set up a Truth Commission. Those who came up with this solution to curb the waves of revenge after the end of apartheid, undoubtedly embarked on a dream but preferred not to make its mechanism public until it was implemented, lest black protests against it would close the path to the idea altogether.
Formation of the Truth Commission and its Function
The Truth and Reconciliation Commission was formed in 1995 and used in the transition period. The Commission was tasked with responding to a complex and key question about the non-violent transition. The question was:
Truth Commission's Mechanism
The Commission was active for three years, from 1995 to 1998. The members of the Commission were selected from civil society activists involved in the non-violent anti-apartheid movement in recent years and the opinion of the transition leaders, Nelson Mandela in particular, were decisive in their selection. The invitation to join the Commission was signed by Nelson Mandela himself. Prominent anti-apartheid activists from among the white population were also present at the Commission hearings. The concept of racial, gender and religious equality was observed in the selection of the members. The hearings were chaired by Desmond Tutu. For any researchers who have seen a few rare documentaries of how these hearings were conducted under the brilliant management of Desmond Tutu, they will undoubtedly conclude that he played the most humane, skilful, and difficult role in the peaceful transition in South Africa.
Only one Truth Commission was formed in South Africa during the transition. In South African transition literature, the Commission and everything that has happened in its hearings over the three-year period, has been the focus of philosophical, human rights, historical, justice seeking, and political analysis.
A total of 2,000 surviving apartheid perpetrators were summoned by the Commission. The procedure for selecting and summoning these so-called defendants, who used violence against dissatisfied black protesters during the apartheid regime, was set up in rooms affiliated with the Commission. The mechanism of selection, summons, and trial were not handled by the state judiciary or its main officials. The criminal procedure did not apply to the investigations and hearings. The Commission operated outside the jurisdiction of the judiciary. In documentary videos of the hearings, it sometimes seems that the methods of filing a complaint and responding to the complainants were based on the improvisation of Desmond Tutu’s creative and humanitarian mind, not on the basis of pre-written legal texts. The spirit of justice, peace and non-violence are evident in every moment of the Commission's hearings under the leadership of Desmond Tutu, which turned this experience into an unparalleled historic test.
At the hearings, the victims of the violent repression or their surviving relatives sat in the plaintiff’s seat, and former regime perpetrators, who in each case were found guilty and indicted, had to respond to specific complaints against them. Witnesses also played an important role at the hearings. They were present at the hearings and explained each case and shared their observations of the perpetrators at the scenes of the violence.
The complaint mechanism and the documentary videos of the violence that were projected on monitors in the large meeting room, showing how the perpetrators acted and, most importantly, Desmond Tutu's management, recreated an atmosphere of human suffering that shook everyone. The plaintiffs shared their sense of vengeance with members of the Commission. They screamed. They cried. They fainted. Sometimes the voices of perpetrators who repented and wept, could be heard from the other side of the room; those who confessed to their mistakes, revealed details of their crimes, and asked the plaintiffs for forgiveness.
The voices of revenge and justice, the voices of apology and remorse, and the soft and peaceful voice of Desmond Tutu mingled together, giving the history of non-violence a humane face. In this atmosphere, the perpetrators became aware of their human nature and whenever the plaintiffs, who cried loudly, were sure sthe perpetrator felt remorse from the bottom of their hearts, it healed their wounded souls and they would gradually forgive the perpetrator with the patient support of Bishop Tutu. Tutu's sermons were decisive in this human mechanism. He used pre-existing Christian aspects and concepts of forgiveness, with the aim of healing the oppressed and returning the violent perpetrators to their compassionate human nature. Christianity, which both the black and white races believed in, helped to heal the historical sufferings of apartheid. Desmond Tutu sometimes cried along with the victims; sometimes he read a text aloud with emotion; sometimes he put his head down and enforced a cautionary silence during the hearings.
Sometimes the defendant continued to deny the allegations up to the last moment or insisted that their actions were carried out in the right way. In such cases, the Commission would send his case to court to be tried within the framework of human rights principles governing fair trials. It should be noted that in 1989, in the preamble to the transition, the death penalty and the deprivation of life were removed from the country's criminal laws. Later, when the first judge was appointed to the newly established Constitutional Court, he declared that the 1993 Constitution recognized the right to life and that the death penalty was therefore, unconstitutional. Thus, in cases referred to the court by the Commission, the death penalty was not a consideration. The number of such perpetrators, who stayed loyal to the apartheid regime and its violent methods and remained in denial, was small.
The question is:
Was 2,000 the total number of oppressors and perpetrators of the apartheid regime?
The managers of the transition have always said:
No, the non-violent transition leaders preferred to identify and summon those who had perpetrated violence near the end of apartheid. Apartheid had a long history, and if they were to charge all the perpetrators, it would have consumed the most energy and money without human reconciliation.
On the other hand, many oppressors were no longer alive or were very old.
The Truth Commission made the victims and perpetrators sit in front of each other for three years and witnessed their conversations; a new and unique method of justice, that could be called the symbolic trial of all the perpetrators of the apartheid era. The method, when chosen by the transition leaders, was unlikely to be implemented to their liking. But thanks to the leadership of Desmond Tutu, it was well implemented and gave the non-violent transition model a miraculous look.
Moreover, in the non-violent transition in South Africa, the most energy was focused on drafting and approving a democratic Constitution and considering mechanisms that would ensure the implementation of its content. An important mechanism was to prevent the judiciary from losing its independence under the pressure of historical grudges and the desire for revenge.
Exploring other features of the South African model
A non-violent transition is the most challenging method of transferring power from an undemocratic political order to a democratic political system, just as democracy is the most challenging form of governing a country, and safeguarding its principles is no easy feat.
I begin my description of the non-violent transition process in South Africa by quoting some of the basic views of Pierre Devos, Law Professor at the University of Cape Town. In 2010, I had the opportunity to attend some of his classes. The professor began the class with the definition of "apartheid":
It is incorrect to think that South African universities only found an opportunity to openly debate anti-apartheid views on the basis of human rights standards after the end of apartheid. Many years before the non-violent transition, debates could be held in certain white universities and in certain black universities without the apartheid regime preventing them; no restraints were imposed on such academic freedoms.
Influential human rights writers and theorists had reached the conclusion that in a situation where racist laws are enforced, they should value laws based on human rights in universities where there is a safe environment. The academic debates laid the foundation for establishing a modern constitution that combines the rule of law with an emphasis on a human rights approach. The roadmap for this rocky and bumpy route was designed in universities. The apartheid regime rarely showed any sensitivity to these debates, and as a result, debates grew in academia using the freedom of expression granted in that environment.
Basic Features of the Constitution
The specific approach that inspired the drafting and establishment of the new South African Constitution (1996) was that the Constitution must simultaneously guarantee the type of power structure and as well as how power is restricted within that structure. This approach is highlighted by two features:
First, the Constitution must provide the government with sufficient power to govern affairs.
Second, the Constitution must simultaneously limit the power of the state to such an extent that it may not violate human rights laws and principles.
Fulfilling both the first and second requirements simultaneously made the South African Constitution a modern role model, and it is because of this feature that the post-apartheid Constitution is referred to as the twentieth century miracle of the oppressed.
The important purpose of establishing the Truth Commission was that the most important institution that guarantees democracy and preserves the Constitution, namely the judiciary, should not lose its independence.
The South African model is exemplary only if it is adapted to the characteristics of the country in need of transition and only if the people have been able to choose transition leaders from among the few who care about the independence of the judiciary as the most effective mechanism for protecting freedoms and democracy.