Perpetrator, victim or both at the same time? This question is a core difficulty faced by societies in Sub-Saharan Africa and the Middle East when dealing with people affected by terrorism. In order to tackle terrorism, including its manifestations and root causes, and heal from it, States may choose to resort to Transitional Justice (TJ). Most well-known examples of TJ come from societies striving to rebuild after traumatic events, like in Rwanda or in South Africa in the 1990s. However, in the case of contemporary terrorism in Africa and the Middle East, TJ may contribute to ending ongoing violence and bringing lasting peace by promoting truth, justice, reparation, non-repetition and remembrance. In 2004, Kofi Annan, the UN Secretary General, defined TJ as “processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses in order to ensure accountability, serve justice and achieve reconciliation”[1].

When it comes to counter-terrorism, one of the main challenges is semantic. It is related to the definitions of terrorism, of what constitutes a terrorist act and of who qualifies as a terrorist. Nevertheless, for the sake of this paper, we will define terrorism as an operational mode consisting of criminal acts of spectacular violence that create a widespread feeling of insecurity within a society. The absence of a consensual definition provides much leeway to State authorities that may commit abuses when fighting and prosecuting alleged terrorist groups. This situation undermines the coherence and legitimacy of counter-terrorist efforts in the eyes of local populations. In fact, the latter are often caught in the middle and suffer from the brutality of all sides of the conflict. The multiplicity and complexity of individual situations in the context of a terrorist insurgency call for the implementation of clear, adapted and broadly approved mechanisms for societies to rebuild and for peace to last. TJ can turn out to be a decisive tool in the pursuit of this goal. Nevertheless, its mechanisms are only seldom used by State confronted with terrorism, and, when they use them, they do it in a flawed way that risks worsening the situation.

This paper attempts to provide an answer to the following question: how can transitional justice help States in Africa and the Middle East fight against terrorism and bring peace and security to their societies?

We will first see that, despite its recognised benefits, TJ is still underutilised by States in the fight against terrorism (I). Then, we will understand that the way TJ mechanisms are implemented is often flawed and counterproductive, unless some considerations are reckoned with (II).

I) Transitional justice is not sufficiently used in the fight against terrorism, despite having the potential to decisively improve the efficiency of counter-terrorism policies.

1.A) Transitional justice and counter-terrorism are rarely seen together, and the usual militaristic strategies to combat terrorism are often counterproductive.

On one hand, terrorism is most of the time absent from international TJ initiatives. As a matter of fact, terrorism is only included in the mandate of TJ courts as a specification of an international crime, like a war crime or a crime against humanity. It is only within the framework of the Special Tribunal for Lebanon (2009-2023) that an international tribunal’s scope was solely focused on prosecuting terrorism^[2]. The main reason stems from the absence of a clear definition of terrorism at the international level. In fact, the international community condemns terrorism and vows to fight it but never precisely defines it, as the UN Security Council Resolution 1566 (2004) illustrates[3].

On the other hand, TJ is most of the time absent from counter-terrorism strategies. The way Iraq deals with Islamic State’s fighters shows that societies that fell victim of terrorism tend to seek its complete eradication and show no mercy towards those associated with it. Iraqi judges stated that they felt social and political pressure to be ruthless in sentencing them, i.e. terrorists are only deemed worthy of receiving the highest punishment[4]. Likewise, in Chad, the death penalty was reintroduced in 2015 following attacks perpetrated by Boko Haram in N’Djamena[5].

However, this approach does not reckon with the diversity of the types of association with terrorism. Indeed, many people and communities end up associated with terrorism because they live in a territory controlled by extremist groups and have no choice but to comply with their rule. Such association with terrorism may include paying the zakat, cooking or driving terrorists around. Therefore, conflating all those remotely associated with terrorism with actual terrorists often results in heavy-handed and indiscriminate judicial and military counter-terrorism policies.

States have adopted militaristic strategies that neglect alternative ways to cope with terrorism, hence aggravating the crisis. They only address the manifestations of terrorism and fail to address its root causes, thus only addressing the threat partially and temporarily. Besides, the vagueness of the definition of terrorism provides State authorities with much leeway to overclassify opponents as terrorists for political or opportunistic reasons. The arbitrariness and mass repression fuel local populations’ grievances and feelings of revenge, which may result in them joining rebel groups, thus perpetuating the cycle of violence. For instance, Ibrahim Traoré’s military junta in Burkina Faso has reduced budgets allocated to development and service delivery in order to increase those of the army[6]. This particular emphasis on the military dimension of the fight against terrorism became obvious with the recruitment of 50,000 civilians as “Volontaire pour la Défense de la Patrie” (VDP) in April 2023. In addition to a permanent state of emergency that allows for regular infringement on the rule of law, repeated violations of human rights committed by the VDP have benefitted terrorist groups’ recruitment strategy.

Bereket Habte Selassie explains why the military tends to take such a prominent role. According to him, the military usually steps in during a crisis, when democratic institutions appear ineffective, because it believes that its structure, discipline and cohesiveness make it the most suitable actor to mitigate the crisis[7]. This self-perception, on top of egoistic rivalries for power, motivated the various coups that swept across the Sahel in the early 2020s. Furthermore, the junta have delivered speeches underlining the necessity for a strong response to terrorism in order to restore law and order in the face of violence. Such discourses have resonated amongst victims that have felt empowered by the perception that their government’s armed forces will avenge them[8].

This over-militaristic approach to the fight against terrorism contradicts the UN counter-terrorism strategy. The latter suggests indeed that peaceful resolution of prolonged conflicts helps address the conditions conducive to the spread of terrorism. Even when reconciliation with terrorist groups seems impossible, dialogue and negotiations should be promoted on specific issues such as cease-fire, prisoner treatment and the application of humanitarian law[9].

1.B) Transitional justice has many positive contributions to make to counter-terrorism policies.

TJ mechanisms could decisively improve the efficiency of counter-terrorism strategies. Indeed, TJ allows for a more comprehensive approach to terrorism compared to the militaristic option too often chosen by States in Sub-Saharan Africa and the Middle East. TJ serves as a conflict resolution instrument whose reparative and preventive dimensions could well complement and balance coercive policies currently in application[10]. Since TJ seeks to incentivise defections, promote negotiations and foster reconciliation, it constitutes an essential means to fight terrorism that spreads in divided societies, particularly among marginalised communities[11]. Broadly speaking, when it comes to terrorism, TJ’s key ambitions are: enticing combat disengagement, rendering justice, providing redresses, and preventing the repetition of atrocities[12].

In order to meet these objectives, some key TJ mechanisms are worth considering: truth commissions, prosecution, amnesty, reparations and security sector reforms (SSR)[13]. Truth commissions are instrumental in avoiding an oversimplification of the conflict so as to better tailor counter-terrorism policies to the local context. In fact, through hearings of victims, reports, archives and research centres, truth commissions contribute to prosecutions, choices of redress and designs of reforms. They allow for a better understanding of the causes of terrorism as well as of the diversity of ways in which individuals may have come into contact with terrorist organisations. As for criminal proceedings, they remove terrorists from society, deter the pursuit of terrorist projects, frame terrorism as a deviant behaviour, and satisfy vindictive expectations. They are often completed by amnesty programmes, general or conditional, that are often part of political negotiations and compromises aiming at national reconciliation. Usual TJ mechanisms of interest for counter-terrorism also include reparations (in kind, monetary or symbolic) that allow victims to recover morally, physically and economically from traumatic events[14]. SSR aim at creating an environment able to prevent radicalisation and the re-emergence of terrorism through vetting, training of law enforcement personnel, and restructuring security and justice sectors to bolster the rule of law. Thus, SSR are instrumental in state-building endeavours. They often reinforce States’ internal and international legitimacy and can inspire regional partners to follow the example. These reforms often comprise programmes of Disarmament, Demobilisation and Reintegration (DDR) that focus on the disposal of weapons, agreements to end hostilities, and the re-insertion of former fighters into society[15].

In addition to the benefits that TJ has to offer to counter-terrorism policies, resorting to TJ is an opportunity for States and their citizens to redefine their social contract. Indeed, in many Sub-Saharan and Middle Eastern countries, States have lost the trust of their citizens, whose lives and rights they were supposed to protect. TJ mechanisms provide platforms for national dialogue where citizens can voice their concerns and expectations to the State. In fact, victims need to feel that the society they live in can protect its most vulnerable; it is a matter of legitimacy for State institutions. Nonetheless, it is evident that for State authorities to choose such a course of action requires political will and courage to face one’s deficiencies.

II) However, the implementation of transitional justice mechanisms should follow key principles; otherwise the terrorist threat may worsen.

2.A) The incorrect or partial application of transitional justice mechanisms can undermine counter-terrorism efforts and even aggravate the terrorist threat.

As a matter of fact, some States have abusively portrayed their actions in the fight against terrorism as “TJ”. However, they too often only resort to one or few mechanisms of TJ, whereas these mechanisms should be implemented as a package since they complement each other. Besides, the way these mechanisms are implemented usually fails to adapt to local circumstances and constraints, thus disappointing believers in the potential of TJ as a conflict resolution instrument[16].

The excessive use of amnesty usually reflects the absence of a legitimate and reliable national justice system capable of upholding the rule of law. Excessive amnesty tends to be framed as an attempt at national reconciliation, but the consequence is often the postponement of conflicts by freezing hostilities[17]. Moreover, such abusive use of pardon can lead to a feeling of impunity for terrorists and heighten victims’ resentment, which fuels grievances that then generate violence. Besides, mercy is too often granted on an ad-hoc basis and in opaque conditions. In Somalia, the lack of transparency around amnesty programmes and the arbitrary nature of screening practices can sometimes deter would-be defectors. Indeed, if one is a low-value defector from al-Shabaab, one has no guarantee of not being arbitrarily categorised as a high-value defector, thus risking the death penalty. Furthermore, if one receives amnesty, there is also usually no explicit guarantee against future discrimination and prosecution[18].

At the opposite end of excessive amnesty is the over-prosecution of all individuals associated directly or indirectly with terrorist groups. Given the cost and time required for investigating and prosecuting every case, over-prosecution drains limited resources. Moreover, it reduces the likelihood of rehabilitation and reintegration because the prolonged detention of low-risk individuals can induce resentment and lead to radicalisation. Additionally, it weakens alternatives, like conditional amnesty, since terrorists can only choose between continuing their activities and being prosecuted[19]. Besides, the negative effects of over-prosecution on national reconciliation are aggravated by procedural flaws that undermine citizens’ trust in the judicial system. In fact, in Iraq, the difficult collection of reliable evidence leaves judges only with witness testimonies and confessions that can turn out to be false denunciations. The involvement of the military in pre-trial investigations and the weakness of the public defence system also contribute to the loss of trust in the judicial system[20].

Some flaws can also be witnessed in the implementation of SSR in some African and Middle Eastern countries. As a matter of fact, the absence of a central State authority enjoying the loyalty of security forces hinders the country’s ability to conduct much-needed reforms of its security and justice sectors. In Afghanistan, political and geographical fragmentation combined with corruption resulted in the failure of SSR, which generated frustration among the population. Furthermore, the large-scale membership and the changing structure of extremist groups represent a challenge for DDR programmes that require long-term commitment and monitoring[21].

Reparation and rehabilitation programmes may also face challenges when applied to societies under a terrorist threat. Indeed, in Iraq, after the territorial defeat of the Islamic State, properties had to be given back to former owners. However, unofficial property transfers took place, which caused widespread disputes regarding ownership. Broadly speaking, implementing reparation programmes necessitates sufficient resources as well as the ability to quantify economically the harm caused by terrorism. As for rehabilitation, it turned out to be coercive in the case of IS fighters in Iraq. They have been isolated with their families for undetermined durations in specialised camps. The incorrect implementation of these TJ mechanisms may, therefore, have had opposite effects to those initially expected[22].

Likewise, resorting to local leaders to implement different types of TJ mechanisms can lead to extrajudicial violence and inequalities of treatment. In fact, entrusting traditional leaders and local justice systems usually risks undermining the rule of law, especially due to the lack of due process. For instance, in Somalia, customary justice Xeer councils’ verdicts cannot be appealed, and women are usually underprivileged, even more if they come from a minority clan. Moreover, disagreements over the judgement or the amount of reparations requested can induce cycles of revenge and counter-revenge between different communities[23].

When not backed by enough efforts to comprehend the origin of violence, the implementation of TJ mechanisms often sees State authorities delude themselves into believing they have addressed the root causes of terrorism. Indeed, authorities usually focus on religion and radical ideology to explain violence. They then implement TJ mechanisms according to this analysis. For instance, in 2015, Niger created a programme in the prison of Kuje thanks to which voluntary jihadists could meet imams to correct their extremist reading of the Coran[24]. The effectiveness of this programme lies in the importance given to the reconstruction of individuals’ identity and perceptions[25]. Nevertheless, focusing on religious re-education diverts the attention from the real reasons for which people choose to join terrorist organisations. As a matter of fact, disenchantment with the government and socioeconomic difficulties are the main drivers of extremism[26]. According to a 2017 UN Development Programme report, 71% of respondents cite “government action, including traumatic incidents involving state security forces” as the main reason for joining extremist groups. The survey was conducted in Cameroon, Kenya, Niger, Nigeria, Somalia, and Sudan[27].

2.B) Therefore, transitional justice mechanisms should be adapted and take into account some key considerations.

Before implementing TJ mechanisms, inclusive consultations should be conducted in order to design a clear national strategy to fight terrorism. These consultations aim at finding the right balance between punitive and non-punitive instruments according to the population’s wishes. For instance, in Somalia, several women’s NGOs rejected initially altogether amnesty for al-Shabaab terrorists. Nevertheless, after consultations and discussions, they were inclined to accept amnesty if associated with apology and truth telling[28]. In Iraq, consultations would have enlightened State authorities on the population’s actual desire for prosecution and repression of terrorists. Indeed, a majority of Iraqis were open to a more forgiving approach to accountability, whereas judges believed that inflicting harsh punishments on IS fighters was a popular demand[29]. Based on such inclusive consultations, a clear national strategy should be designed to bring security and peace. This strategy should convey the unambiguous intentions of the State regarding terrorist groups, their victims, their members and their potential defectors. Once ready, the strategy should be communicated to the population, and TJ mechanisms implemented according to local needs. However, some recommendations can be formulated so as to better exploit the potential of TJ as a counter-terrorism instrument.

The establishment of truth commissions must meet some requirements in order to be successful. In addition to obtaining political and popular support, including international support for functioning costs, truth commissions should be established by States once hostilities are over or at the initiative of citizens themselves. For instance, in the USA, citizens created a Truth and Reconciliation Commission in 2004 to better understand how and why the Ku Klux Klan killed 5 people in Greensboro in 1979[30]. Moreover, such commissions need not be established exclusively at the national level. As Slye and Freeman suggest, a national and centralised commission is relevant when the experience of atrocities is consistent across the country. However, regional or local bodies may be more appropriate to deal with localised traumatic events[31]. Moreover, truth commissions need to do fine-tuning in order to find the right balance between letting victims speak out and controlling the level of anger expressed for the sake of reconciliation. Besides, truth commissions have the complex task of balancing the need for truth and the need for justice. Indeed, sometimes amnesty may be granted on the condition that former fighters testify before a truth commission. Such a situation carries the risk of disregarding victims’ right to justice. However, in countries where the judicial system is deficient, the search for truth to achieve national reconciliation may come as a priority. Moreover, letting former jihadists participate in the work of truth commissions makes them reintegrate symbolically into the society they hated as they contribute to its healing[32].

To prevent impunity and provide some level of accountability, amnesty should reckon with the need for justice by imposing conditions. The latter can revolve around truth-telling (as mentioned above), disarmament, reparations and non-recidivism, for example. Furthermore, it appears relevant, for the sake of reconciliation, to demonstrate leniency towards individuals who were coerced to associate with terrorist groups. In fact, these people often had to pay taxes to terrorist groups who controlled the area in which they lived, de facto financing them[33].

Criminal proceedings should be more discriminate, proportional and done in cooperation with the military to exit cycles of grievances and violence. In order not to exceed the capacities of prisons and preserve financial and human resources, prosecution should focus on high-risk individuals who committed serious crimes[34]. Besides, sentences handed down by judges, whoever they condemn, should be based not on one’s membership but on the severity and scope of one’s offense[35]. Overall, the intensity of the prosecution depends on the balance sought by the TJ strategy between dissuasive effects and incentives for defection and reintegration into society. Besides, when striving to reinforce the judicial sector’s credibility and legitimacy within the framework of counter-terrorism policies, it appears crucial to also take into account the deeply entrenched militaristic nature of several States in Sub-Saharan Africa and the Middle East. Indeed, the militaristic approach to combating terrorism will not be replaced overnight, even less so without reactions from the military that may fear being set aside. Therefore, coordination between military and judicial powers should be fostered. Not only will it prevent violent reactions by the military, which regards itself as the spearhead of counter-terrorism, but it will also induce a better handling of crime scenes. As a matter of fact, the lack of training and awareness of military personnel regarding criminal investigations often leads to the degradation of the chain of evidence. It results in prolonged periods of administrative detention and abusive practices[36]. Hence, a stronger cooperation between State armed forces and justice can improve the reliability of criminal proceedings and reduce the likelihood of abuses.

To better recover from traumatic terror events, reparations should be provided with both an individual-based and a community-based approach. In fact, they should combine both psycho-social and socio-economic mechanisms that are adapted to the type of violations, resources available and cultural norms. For example, in Timor-Leste, the commission for Reception, Truth and Reconciliation^[37] decided that perpetrators of human rights violations had to carry out “acts of reconciliation” such as community service, service to victims and donation of money so as to be reaccepted in local communities^[38]. As Slye and Freeman propose, these redresses should be particularly substantial if perpetrators benefitted from a high degree of leniency (limited prosecution and conditional amnesty)[39].

Moreover, when discussing the reintegration of former combatants, it is essential to recognise the burden it may represent for communities taking them. It is worth noting that the return of former fighters creates fear, as a clan elder in Somalia implied: “Al-Shabaab are our sons, but don’t leave us alone to deal with them.” If local communities are not helped in this reintegration process and offered security guarantees, there is a risk that former terrorists end up marginalised or even mob lynched[40]. To mitigate this risk, it is essential to carry out information campaigns to inform local communities that, sometimes, the people they have to reintegrate were only indirectly associated with terrorism – often because they had no other choice. It would help reduce stigmatisation and prevent discrimination[41]. Additionally, reintegration programmes should not solely focus on defectors and former combatants because receiving communities may feel neglected in comparison. Indeed, the latter should also benefit from material opportunities provided by the State in the form of job creation, vocational training and public services[42].

Due to a generalised lack of trust in central State authorities, it is relevant to involve traditional leaders in the implementation of TJ mechanisms. Indeed, their legitimacy can be of use to convince local communities of the soundness of the national TJ strategy[43]. Nonetheless, traditional leaders’ actions should be coordinated across the country and regularly monitored so as to avoid inequalities of treatment and violations of due process. It is also worth mentioning the fact that local clan chiefs can offer inexpensive and effective alternatives to overburdened State courts whose legitimacy is questioned. In this perspective, providing them with specific training and recognising them as State servants would improve the efficiency of the overall TJ strategy and reinforce national unity[44].

Before concluding, it should be underlined that TJ is not a panacea. It requires parallel structural reforms in the State governance so as to ensure sustainable peace and security. Indeed, socio-economic development, education for all, including nomadic communities, employment opportunities, judges’ integrity, the establishment of conflict management mechanisms, the formation of armed forces and the prevention of embezzlement are as many policy areas that should be prioritised by States resolved to combat terrorism and restore peace.

Conclusion

We have now come to the conclusion that TJ mechanisms are still not sufficiently, or just incorrectly, incorporated in counter-terrorism strategies found across Sub-Saharan Africa and the Middle East. TJ’s reparative and preventive effects are instrumental in fostering national reconciliation while meeting the needs for truth and justice of the victims of terrorism. Nevertheless, in order to exploit this potential, the implementation of TJ mechanisms should align with a coherent and clear national strategy designed through inclusive consultations. Every conflict being unique, the ends and means of this strategy should be adapted to local circumstances and constraints. However, if the international community recognises the benefits of TJ in post-conflict areas that experienced terrorism, it still has to officially and more systematically grant TJ a central role in counter-terrorism strategies.

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[2] Sciandra, Elena. Facing States of Fear: The Emerging Issues of Terrorism and Counterterrorism in Transitional Justice. The Palgrave Handbook of Global Counterterrorism Policy, edited by Scott Nicholas Romaniuk et al., Palgrave Macmillan UK, 2017, pp. 135–59.

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[6] Bobuin, Jr Valery, and Charles Some. Transitional Justice Tools to Address Radicalism and Violent Extremism in Burkina Faso. Centre for the Study of Violence and Reconciliation, Feb. 2024, https://www.csvr.org.za/transitional-justice-tools-to-address-radicalism-and-violent-extremism-in-the-sahel-region/.

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[10] Sciandra, Elena (2017).

[11] Slye Ronald, and Mark Freeman. Toward a Transitional Justice Framework for Preventing and Overcoming Violent Extremism. United Nations University – Centre for Policy Research. The Limits of Punishment Transitional Justice and Violent Extremism, May 2018.

[12] Slye & Freeman (2018).

[13] Slye & Freeman (2018).

[14] Slye & Freeman (2018).

[15] Sciandra, Elena (2017).

[16] Hubrecht, Joël. Le Terrorisme. Un Défi Pour La Justice Transitionnelle. Les Cahiers de La Justice, vol. N° 3, no. 3, Dec. 2019, pp. 393–402.

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[20] Revkin (2018).

[21] Sciandra, Elena (2017).

[22] Revkin (2018).

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[24] Hubrecht (2019).

[25] Monod, Guillaume. En prison, paroles de djihadistes. Gallimard, 2018

[26] Bobuin & Some (2024).

[27] United Nations Development Program. Journey to Extremism in Africa. 2017, p.87. 

[28] Slye & Freeman (2018).

[29] Revkin (2018).

[30] Remembering the 1979 Greensboro Massacre: 25 Years Later Survivors Form Country’s First Truth and Reconciliation Commission. Democracy Now!, Nov. 18, 2004. http://www.democracynow.org/2004/11/18/remembering_the_1979_greensboro_massacre_25.

[31] Slye & Freeman (2018).

[32] Hubrecht (2019).

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[34] Revkin (2018).

[35] Nozawa & Lefas (2018).

[36] Nozawa & Lefas (2018).

[37] Commission created to address violations of human rights committed between 1974 and 1999.

[38] Slye & Freeman (2018).

[39] Slye & Freeman (2018)..

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[42] Felbab-Brown, Vanda. The Hard, Hot, Dusty Road to Accountability, Reconciliation, and Peace in Somalia. 2018.

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[44] Bobuin & Some (2024).