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qualification aims at taking the adequate measures to ensure that such a situation is never to arise again and to address the marginalization and exclusion suffered by a region. According to the law, the TDC is in charge of elaborating programmes for reparations, but also drafting recommendations and proposals to the authorities to ensure non-recurrence of past violations and to take into consideration individuals rights, “in particular women and children’s rights as well as the rights of those with special needs and vulnerable groups”121. These programs of reparations also apply to the situation of Regions as victims. To fulfil its mission, the TDC can receive files, complaints and motions. Broadly speaking, it may rely upon any measure or mechanism likely to help reveal the truth within the framework of the transitional justice objective of the transitional justice law and, thus, including as to the regions that suffered from systematic marginalization or exclusion. As of September 2016, 30 files concerning regions were filed with the TDC, including the very first one filed by ASF and Tunisian Forum for Economic and Social Rights regarding the region of Kasserine122. b) Definition of marginalization and exclusion The Tunisian transitional justice law does not define marginalization and exclusion. These concepts are however defined at the international level (including by the UN). Marginalization can be defined as a form of acute or persistent distinction, discrimination or disadvantage, which compromises the group opportunities in life; and derives from social, economic or political processes. The social, economic and political process or processes do not need to necessarily aim at creating this distinction, discrimination or disadvantage. They may merely produce it, albeit inadvertently. The distinction, discrimination or disadvantage shall show a certain persistence and ability to affect the group’s opportunities. Exclusion is a process which leads to the prevention of some people from having access to services or rights, namely access to employment or a decent income, education; participation in power and decision-making that has an impact on their daily life. According to the law, marginalization or exclusion shall be systematic. The adjective “systematic” indicates the severity and structural quality of marginalization or exclusion. It is not about addressing marginalization or exclusion which is momentary or relating to factors such as the overall economic context or the geographic or climatic situation of a region. The violation of social and economic rights (ESR) in itself is not required to establish the systematic marginalization or exclusion of a region. It may, however, constitute an item of proof that marginalization or exclusion is occurring. c) Use of indicators to show that a Region suffered from systematic marginalization or exclusion To address the marginalization and exclusion of regions, the first step is to look at the situations between regions to determine whether there is a marginalization or exclusion. The issue is how to measure objectively the existence of a marginalization or exclusion. For this purpose, based on comparative experiences (including before the Kenyan Truth and Reconciliation Commission), the use of socio-economic indicators helps to objectively compare the status of a region to the national situation and to other regions’ statuses and to determine the existence of disparities, their extent and their persistence. From the analysis of these indicators, it will then be possible to determine the existence of disadvantages or discriminations or lack of access to rights or services in order to establish a systematic marginalization or exclusion. In the case of the regions of Tunisia, 3 indicators were found particularly relevant: - - -
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Human Development Indicator (“HDI”). the Human Poverty Indicator (“HPI”). Regional Development Indicator (“RDI”) designed by the former Tunisian Ministry for Regional Development and Planning which provided for an analysis of four thematic indexes at the governorate’s level. (knowledge, wealth-employment, health-population and justiceequity.)123
Transitional justice law, article 43; see also article 67(2) of the Transitional justice law providing that these suggestions and formulations shall be included in the collective and final report of the TDC. ASF/FTDES, Request to declare the region of Kasserine as “victim” filed on the 16 June 2015 with the TDC, http://www.asf.be/blog/ publications/the-press-file-on-the-kasserine-victim-region/ MRDP Report, The Regional Development Indicators, November 2012, pp. 2-3. http://www.mdci.gov.tn/fileadmin/Conference_ presse/Strat%C3%A9gie%20de%20d%C3%A9veloppement/Diagnostic%20strat%C3%A9gique/Indicateurs%20de%20 d%C3%A9veloppement%20r%C3%A9gional.pdf.