A curious person is currently on trial for murder in Tunisia: Habib Bourguiba, the country’s first president. He’s facing prosecution for ordering the assassination of rival independence leader Salah Ben Youssef on August 12, 1961 in Frankfurt. It’s a monumental and critical moment in Tunisian history, linked to the issues of national liberation, independence and sovereignty; yet few are even aware that the case has been slowly unfolding in court over the last three years. In a recent court session—one of nearly a dozen so far in the trial—only around 20 people were present and just two of them journalists including myself.
The Ben Youssef trial is part of the special tribunal system on transitional justice launched in 2019 by the Truth and Dignity Commission [TDC, or IVD in French]. After years of investigating past abuses, the TDC forwarded more than 200 cases to the tribunals. In addition to a lack of media attention, a lack of resources and a lack of cooperation or outright hostility from other State bodies and officials have crippled the process. Despite these challenges, human rights advocates, victims of state abuses, and some lawyers and judges have doggedly kept the tribunals going.
“At the first hearing…actually it was a very happy day for me in May 2019 because in the courthouse where Bourguiba used to inaugurate the judicial year every year, they mentioned him by name as an accused for the assassination of Salah Ben Youssef…This is incredible, this never happened in any other country, and to me that’s almost enough,” said Lotfi Ben Youssef, the son of Salah Ben Youssef, who has attended the court sessions and given testimony to the judges. “To me that was an incredible moment, and that’s almost worth the 32 years of exile that we lived through.”
Those years of exile ended in 1987, less than two months after Ben Ali deposed Bourguiba in what has been dubbed a “medical coup.” Yet when the Ben Youssef family arrived at the Tunis airport, a crowd of two to three thousand gathered to greet them. That, said Ben Youssef, gave the Ben Ali regime a scare and prompted authorities to quickly transfer the Ben Youssef family members from the airport directly to their relatives’ homes and away from the waiting crowd.
“They got scared…they did not expect popular support and that people remember,” said Ben Youssef.
When Bourguiba was finally put on trial in 2019, the opening of the case caused alarm among Bourguibists of all stripes who called it an Islamist plot to attack Bourguiba’s legacy. Some, like Ben Ali partisan Abir Moussi, used the occasion to once again call for shutting down the transitional justice process altogether.
Blocked Transitional Justice
At nine in the morning on January 31, 2022, people continually shuffled in and out of the swinging doors of courtroom number two in the main courthouse of Tunis. Built in 1902 in the Art Nouveau style, the building sits a few hundred meters from the Prime Minister’s office and also goes by the grand name of “Palace of Justice.” One hour after the scheduled start time, the five presiding judges entered and took their seats. The audience, sitting in wooden pews, struggled to hear the exchanges between the judges and witnesses over the roaring echoes coming from the colossally high-ceilinged hallway just outside.
The first two cases before the court that day dealt with State security forces charged for their role in killing demonstrators during the 2011 revolution. Many such cases have seen police outright boycotting the proceedings, refusing to attend or deliver summons to accused colleagues. However, two high-level security officials facing charges were present on this occasion to answer questions from the leading judge. Like a police investigator, she drilled into the minute-by-minute details of the killings, perhaps filling the void of police investigators who have so far not cooperated much with judicial authorities.
The burden on the five judges is huge: they’re dealing with dozens of specialized transitional justice cases in addition to their normal workload. And at the end of each year, when judges face new job assignments and promotions, a new set of five judges have to be trained for transitional justice specialization by the United Nations’ (UN) Office of the High Commissioner for Human Rights (OHCHR), the UN Development Program (UNDP), the International Center of Transitional Justice (ICTJ) and other civil society groups.
“I monitored some court hearings where they accumulated 20 cases. It’s crazy. It takes the whole day. And in most of the cases, perpetrators didn’t attend. And sometimes even victims didn’t attend,” due especially to transportation obstacles and Covid-19 logistical challenges, Mohamed Azer Zouari, at the time a Legal Officer at the ICTJ’s Tunisia office told Meshkal. “So they [the judges] take the systemic decision of postponing all the cases.”
Another issue delaying things? Political pressure on judges from the powerful people and their allies who are facing prosecution—everyone from the larger-than-life Bourguiba, to the Ben Ali clan, to top-level security officials and oligarchs who continue to hold influence over State institutions.
“Corruption cases are on a big scale. Human rights cases are very important and contain very influential political figures. There is pressure on the judges; there is pressure on the victims,” said Zouari. He added that, to do their job properly, judges working on transitional justice need the same kind of financial compensation and security protection that their peers working on terrorism and normal corruption cases get.
From Bad to Worse
As a result of these blockages, none of the more than 200 cases the TDC forwarded to the tribunals in 2019 have been concluded yet.
“The specialized chambers are stuck, completely blocked procedurally, and legally,” said Zouari. “There is a need for external intervention from decision makers, from the legislation—in this exceptional circumstance, where the President has all the powers, a presidential decree—that states that prosecutors can engage in investigation, they can fulfill investigating the corruption cases etc.”
Yet despite his rhetoric supporting the 2011 revolution, President Kais Saied has so far worked against transitional justice, according to those who have worked on the issue. The head of the TDC, Sihem Bensedrine, told journalist Olfa Belhassine last September that by relying on the security forces to take power in July, Saied had empowered police forces to “take revenge on all those who have bothered them before, especially the Truth and Dignity Commission. It seems that all the Commission’s staff is on the red list and forbidden to travel.”
On July 27, 2021, Saied fired Abderrazek Kilani, who was heading two institutions that grew out of the transitional justice process – the General Authority of Martyrs and Wounded of the Revolution and the Management Committee of the Dignity Fund for Reparation and Rehabilitation of Victims of Tyranny (or Dignity Fund). Both institutions were designed to assist the victims, including covering their healthcare costs, but their roles are now unclear.
The TDC’s investigation and prosecution of past abuses has included political victims of the Bourguiba and Ben Ali regimes and these regimes’ international allies like France and international financial institutions. The victims include countless ordinary people but also specific political groupings like leftists, unionists, and Islamists from the Ennahdha party. Many of Ennahdha’s fiercest opponents have seen the inclusion of Ennahdha as victims in transitional justice and their eligibility for compensation as unacceptable. In fact, even though compensation to transitional justice victims through the Dignity Fund might come from international donors like Germany and Switzerland, the issue of reparations and financial compensation has been interpreted by some as a divergence of Tunisian public funds to the Ennahdha party, prompting street protests and media outrage that fueled some of the support for Kais Saied’s July 25, 2021 suspension of Parliament.
Transitional justice “is more than ever seen as ‘the Islamist process,’ with all the negative impact this can have on victims’ rights,” Salwa Gantri, the head of ICTJ’s Tunisia office told Meshkal.
Gantri notes that President Saied has further undermined transitional justice by not offering the legally mandated official State apology to victims, by granting amnesty to suspects who would otherwise face justice in the specialized tribunals, and by replacing the Higher Judicial Council (CSM by its French acronym) with another body that has so far not demonstrated commitment to transitional justice.
“The transitional justice process is worse after the 25 July events,” Gantri said, adding that President Saied has introduced decrees that follow “a new logic that is nearer to an amnesty than dismantling a system and setting guarantees of non-repetition.”
In the case of the Ben Youssef assassination, Lotfi Ben Youssef said that unlike former presidents, President Saied hasn’t even met with their family despite requests, let alone take measures to address their demands.
“My family met all the presidents asking them the same thing: repatriation of the body [of Salah Ben Youssef]—which was done by Ben Ali—recognition of their role in the assassination and asking for apology, rewriting of the history, and the cancellation of the [court] judgment against [Ben Youssef]…but Kais Saied has refused. I asked twice…Nothing,” said Ben Youssef.
A Unique Case
After the first two of three hearings before the special tribunal in January, the head judge opened the Salah Ben Youssef assassination case. After procedural formalities, three of the pro-bono lawyers representing the Ben Youssef family addressed the judge.
Some cases “have a historical and political dimension which differentiate them from other cases. This case is like that. And it’s not just the case of Salah Ben Youssef, it’s also the case of the entire movement and the people who were martyred in this context. This case goes beyond the Tunisian context,” said lawyer Afif Ben Youssef, whose father was Salah Ben Youssef’s cousin. Afif Ben Youssef then requested that the case be granted a separate hearing dedicated solely to it—a request the judge later granted, leading the next session in April to be held on its own.
“All the countries under colonization, and…the transition from direct colonization to neo-colonization, economic and cultural colonization…this is not just about Salah Ben Youssef and Bourguiba. There is a Bourguiba in all the countries that were colonized, and there is a Salah Ben Youssef in all the countries that were colonized,” he added.
The story of Bourguiba and Ben Youssef is one that reflects a divergence that was common within national liberation movements in colonized countries across the globe, his family say.
“All the militants that chose the path of total and true independence in the frame of third-world solidarity, free of neo-colonialism like Salah Ben Youssef, like Mehdi Ben Barka in Morocco, like Patrice Lumumba in the Congo…they all were for immediate and true independence and they were all eliminated physically,” Lotfi Ben Youssef told Meshkal. “They were eliminated because they took a path that was unacceptable, a path that they thought was good for their people but that was unacceptable for the dominating power at that time.”
Bourguiba and Official History on Trial
The official story of Tunisia’s independence from France, told through the State education system and historians who were ministers under Bourguiba or close to him, has focused largely on Bourguiba as a larger-than-life, father figure. Historian Moncef Chebbi, in his book on Salah Ben Youssef, claims that this official version of history constitutes an “attack” which “essentially targeted the role that the Tunisian people played in freeing themselves from the colonizer…the expulsion of the popular masses from historical action.”
“The official history… attacks men and women who devoted their lives to giving life and meaning to the people’s liberating will. All must be erased. All, but one, the self-proclaimed father of the national movement [Bourguiba]. As if this movement could not suffer having many fathers, many mothers,” Chebbi writes.
The real history of independence is, of course, a bit more complex than the omnipresent Bourguiba hagiographies.
“It’s all a hidden history. It’s not spoken about at all. It’s sad,” said Lotfi Ben Youssef.
The split between Bourguiba and Ben Youssef, respectively President and Secretary General of the Tunisian nationalist Neo-Destour party, can be traced to 1954. At that point, Tunisian “Fellagas” resisting French rule had carried out an armed struggle for two years. But in late July 1954, France faced revolt in neighboring Algeria—a revolt supported by Egypt which was led by the newly ascendent, pan-Arabist Gamal Abdel Nasser. Following France’s defeat in Vietnam at the battle of Dien Ben Phu, a new French government under Prime Minister Pierre Mendès-France shifted tack from brutal repression of Tunisia’s revolt to offering “internal autonomy” and negotiations on an accord with the Neo-Destour.
At that moment, Bourguiba—in exile in France—sought to convince the Fellagas to lay down their arms to allow the negotiations to succeed; in contrast, Ben Youssef—in exile in Egypt—tried to facilitate even more arms shipments from Egypt to the Fellagas fighting in both Tunisia and Algeria. If Bourguibists discuss this history at all, they have tried to smear Ben Youssef’s position, with one such writer quoted in the Arab Weekly as saying: “Ben Youssef eyed Arab armies, which meant foreign forces, to fight for Tunisia’s independence”—apparently unaware that French foreign forces assisted Bourguiba in his crackdown on the Youssefists, or that for many Tunisians, like those who went to fight in Palestine in 1948, other Arabs are not seen as “foreign.” A common Bourguibist argument that is often levelled against other political currents is that they are undermining Tunisianité (Tunisian-ness), often read as Tunisia’s exceptionalism standing apart or above the rest of the Arab world.
Independence Now, Eventually, or Never?
According to Chebbi, Ben Youssef’s approach aimed to gain even more leverage in the negotiations in order to push for complete independence immediately instead of Bourguiba’s strategy of independence in steps. France excluded Ben Youssef from the negotiations, and when those negotiations produced an agreement in June 1955, it included caveats for continued French influence over Tunisia—particularly on military and economic issues.
Rather than merely a rivalry for power or a clash of characters—as many accounts seem to indicate—there were clear ideological and political elements to the Bourguiba-Ben Youssef split. A common and simplified version of this is that while Youssefists represent a more religiously conservative, pan-Arabist strain popular in the interior of the country, Bourguibists represent a more Francophile, secular, coastal constituency. This geopolitical and culturalist assessment of the division also maps neatly onto two diverging, class-based approaches to Tunisia’s decolonization strategy, according to Max Ajl.
“The compromise which Bourguiba eventually accepted – internal autonomy – conceded much to colonialism. Which concessions colonialism would cede, and with whom the post-colonial state would align, was central to the swelling Bourguiba-Ben Youssef conflict,” writes Dr. Ajl in his doctoral dissertation entitled Farmers, Fellaga, And Frenchmen: National Liberation and Post-Colonial Development in Tunisia. “The Neo-Destour, and behind it, the Francophile petty bourgeoisie and elements of the landed and un-landed bourgeoisie agreed with France on an arrangement which would accord the trappings of sovereignty to Tunisians while largely preserving colonial economic architecture.”
Of particular note on the economic front: a customs union that, according to Ajl, “would effectively make development impossible.”
“It would also mean that French inflation would be often exported to Tunisia…Such a condition entailed ongoing erosion of Tunisian purchasing power. Tunisia also would not be able to carry out an independent monetary policy since its currency was pegged to the Franc,” continues Ajl. “And absolutely, centrally, and touching on the agrarian question as it interlocked with the national-colonial struggle, the Tunisian government was bound to respect the rights of French property-holders – in effect, for the most physical, palpable, galling, and immediate form of the colonial presence to remain unchanged and perched on the very richest farmlands in Tunisia.”
That French farmland wasn’t reclaimed until a 1964 nationalization law—nearly a decade after the accord was signed. Through the accord, Ajl argues, France “alchemized a fading colonialism into a burnished and renewed neo-colonialism.”
Yet Youssefists and Fellagas rejected the accord, opting instead to continue an armed struggle. Bourguiba, his allies in the Neo-Destour, a paramilitary force called the Protection Committees (or ‘Welfare Committees’ in the TDC translation of Lijan Al-Riâaya), and French armed forces then worked to arrest, torture and kill Youssefists during this period, according to the TDC investigation into the incidents. In a summary of its final report on five decades of human rights abuses, the TDC notes (page 258) that “the Truth and Dignity Commission has got proof that the French colonist had provided support to the Bourguiba fissure in its conflict with the Youssefis by randomly bombing them by French Air Force that worked hand in hand with the Welfare Committees (Lijan Al-Riâaya) whence [sic] the liquidation of a number of rebels.”
This effectively snuffed out the armed movement against France and forced Ben Youssef into exile until his eventual assassination in 1961.
Official Archives not Open
Getting justice for Salah Ben Youssef has faced numerous challenges both within and outside Tunisia. Within Tunisia, Ben Youssef’s son Lotfi sees an unwillingness on the part of Tunisian media to challenge the legacy of Bourguiba.
“In the beginning, yeah, even Al Jazeera and all that they came. Now, even if they come, they don’t broadcast it. Maybe because I did go on Express FM or some radio station and two or three times I said Bourguiba was an assassin. I haven’t been invited since,” he said. “All the guys who go on TV, the minute they talk about Salah Ben Youssef, they are Bourguibist.”
He also pointed to the fact that unlike his father, Bourguiba enjoys the continued support of funded institutions and foundations—like the Bourguiba Thought Association, the Habib Bourguiba Remembrance Association, or the Habib Bourguiba Foundation—that continue to narrate history in terms favorable to him.
Another issue is getting access to official archives both in Tunisia and in Germany where Ben Youssef was assassinated. At the very first trial, the lawyers for Ben Youssef requested that the court issue requests for access to the archives of the Presidency, the Ministry of Interior, and the Ministry of Foreign Affairs. At the January court session, the judge responded to lawyers that they had finally, after two years, submitted the requests and received positive responses from each of the State entities.
In the January court session, the judge said that the courts had not yet been able to send a magistrate to consult the archives. However by the next court hearing, on April 28, 2022, judges informed the lawyers representing Ben Youssef that two judges had been able to review files at the Ministry of Interior, identifying 124 relevant files they will ask the ministry to copy and forward to the court, according to Lotfi Ben Youssef.
As for German cooperation in the court case, it has not been forthcoming.
“To this date, Germany refused even the TDC’s access to information. Those archives remain closed,” said Zaouari, formerly of the ICTJ, during the January session.
“Probably they don’t want to upset the political equilibrium,” in Tunisia, Lotfi Ben Youssef said about German reluctance to open up their police archives.
According to him, Germany is relying on a few different excuses to not release information, such as the fact that because Salah Ben Youssef was seeking medical treatment in Germany at the time (for eczema), his records fall under medical privacy laws and cannot be released before 90 years. Ben Youssef also said that at the time his father was assassinated, the German ambassador in Tunis sent a note to the Frankfurt police explaining how the main coordinator of the assassination in Germany—Hamida Ben Tarbout—was the nephew of Bourguiba’s close associate Bechir Zarg Laaoyoun (who was in Switzerland at the time and also coordinating on the assassination, according to the TDC’s investigation). German press has recently reported on how the German government then blocked the investigation.
But despite the continued obstacles to official archives, there is publicly available evidence of Bourguiba’s hand in Ben Youssef’s assassination: Bourguiba himself seemed to admit his involvement in a December 15, 1973 speech at the journalism faculty (IPSI) at Manouba University.
“With transitional justice, we want the abuses publicized and receiving apologies. And all that is to avoid repetition…of those human rights abuses,” said Ben Youssef. “We only want a recognition from the structures that are a continuation of the structures that killed him.”
Addressing the judge, lawyer and member of the now-dismissed Parliament for the Harakat Echaab Party Haykel Mekki said that the case can provide important closure for a moment that has implications for the whole nation.
“The court…needs to be extremely persistent to work hard on assigning responsibilities and discovering the truth, and perhaps what can result is that we can have the reconciliation that we’ve been waiting for for 60 years. Because a lot of blood in Tunisia has been spilled because of these two ideas, these two projects that have been in a fight which has ended in political assassination,” he said.
The next court hearing in the case is set for July 14, 2022.
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