III. Other Tunisians in Guantanamo
There are 10 other Tunisians still in Guantanamo, at least eight of whom have been convicted in absentia.34
Tunisia does not have a centralized, publicly accessible database of criminal records, making it difficult to gather information about prior convictions.35 We were, however, able to gather case files (some only partial) for several of the Guantanamo detainees from Tunisia:
On January 26, 2005, the Tunis Military Court convicted al-Hakimi, an-Naceri, Ben Ali, and al-Yazidi in absentia on charges of serving a terrorist organization operating abroad,37 and sentenced each to 20 years in prison, and five years of administrative control and deprivation of their civil liberties. There were 35 defendants in the case, only five of whom were in custody at the time. According to the court ruling, the main evidence in support of conviction was the statements made to the police by their codefendants in custody, to the effect that they had met al-Hakimi, an-Naceri, Ben Ali and al-Yazidi at a military camp in Afghanistan, and that they had undergone military training in preparation for returning to Tunisia to carry out operations there. During the trial those codefendants tried to disavow their statements to the police, but the judge refused this request.
Al-Hakimi, an-Naceri, and Ben Ali were also in absentia codefendants, along with Adel Ouarghi (see below), in another case before the Tunis military court in which they were charged with participating in the establishment in Afghanistan of a new fundamentalist jihadist organization. 38 The court, on March 24, 2006, sentenced al-Hakimi, an-Naceri, and Ben Ali to 20 years in prison.39
On March 22, 2005, the Tunis Court of First Instance convicted al-Hammi and al-Sliti, plus a third in absentia defendant and Moncef al-Hammami, who was in custody, on five counts under Tunisias Law in Support of International Efforts to Combat Terrorism and to Fight Money-Laundering (hereinafter the 2003 Anti-Terror Law), sentencing each of the in absentia defendants to 40 years in prison, a fine of 25,000 dinars (about US$20,000), and five years of post-release administrative control.40
Both al-Hammi and al-Sliti had already been in Guantanamo for more than a year when the 2003 law upon which they were convicted was passed. Moncef al-Hammami, the only one of the four defendants in custody, appealed the conviction, arguing among other things that he, too, had been in custody since before December 2003 and therefore had been improperly convicted under a law which had only been enacted after the alleged offense was committed. Tunis Appeals Court Judge Mohamed at-Taher al-Sliti reduced Hammamis sentence to 10 years but rejected the argument on retroactive application of the law, explaining that because al-Hammami had not explicitly renounced his membership, he was therefore committing a continuing offense. International human rights law prohibits retroactive application of criminal laws.41
On January 30, 2002, the Tunis Military Court sentenced Mabrouk in absentia to 20 years in prison and five years of post-sentence administrative controls for serving in, and inciting others to join, the Adherents of the Islamic Community and the Traditions of the Prophet (Ahl as Sunna wa Djamaa), which the government considers an Al Qaida-affiliated terrorist group operating abroad. The court judged 31 of the defendants, including Mabrouk, in absentia. The defense lawyers for the three defendants who were present at the trial stated that the police had held the men in incommunicado detention longer than the six days that the law permits, and then covered this up by falsifying the date of arrest in the register. At least two of them claimed the police had obtained their confessions through torture, but the trial judge nevertheless relied almost exclusively on these statements, and sentenced the three defendants present at trial to prison terms of between eight and 10 years, while giving 20-year sentences to the in absentia defendants, including Mabrouk.42
The Tunis Military Court sentenced Ouarghi in absentia to 20 years in prison on March 24, 2006. Among the codefendants the court found guilty was Seifallah Ben Hcine, who was also a central figure and codefendant in the above-mentioned case against al-Hakimi, an-Naceri, Ben Ali, and al-Yazidi (al-Hakimi, an-Naceri and Ben Ali were also codefendants in this case against Ouarghi). The court reportedly based the conviction of Ouarghi almost exclusively on a statement made to the police by Ben Hcine, the only one of the 14 defendants in custody. In that statement he named Ouarghi and other Tunisians with whom he met in Afghanistan for the purpose of establishing a new fundamentalist jihadist organization. Before the investigating judge, Ben Hcine denied the contents of his statement to the police, saying it had been extracted from him. But the investigating judge rejected Ben Hcines effort to exclude his confession from the evidence in the case.44
The court gave Ouarghi 10 years on each of two charges: membership in a terrorist organization operating abroad and incitement to belong to such an organization.
No details on either of these two cases are available. Hammamis family said through a lawyer that they are unaware of any charges pending against him.45
34 While there is no absolute prohibition on trials in absentia under international law, trials in absentia compromise the ability of an accused to exercise his or her rights to a fair trial under the International Covenant on Civil and Political Rights (ICCPR), including the rights to adequately prepare a defense, to communicate with counsel of choice, and to examine witnesses. As noted above, Tunisian law grants new trials to persons convicted in absentia who present themselves, or are presented, to judicial authorities. See International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Tunisia on March 18, 1969, art. 14.
35 Statement by official of the Tunisian Ministry of Justice and Human Rights, August 10, 2007 (see Appendix C). The ministry stated that Guantanamo detainees can request information about their judicial records in Tunisia from the office of the state prosecutor at the Court of First Instance, or the director of judicial services at the general prosecutors office. Human Rights Watch does not yet have a basis for evaluating whether the judicial authorities handle such requests in a thorough and timely fashion.
36 Lotfi Ben Abid Ben Amor Ben Ali is the legal name for Mohammad Abdul Rahman, referred to in Appendix B. Rahman is the name the US uses for him in Guantanamo.
37 Tunis Military Court, case no. 16851.
38 Tunis Military Court, report of the investigating judge, no. 2/3736, September 22, 2004.
39 Tunis Military Court, case no. 28265.
40 Tunis Military Court, case no. 0464/2004. The court sentenced the in absentia defendants to five eight-year sentences, to run consecutively, on charges of membership in a terrorist organization (art. 13.2 of the 2003 Anti-Terror Law), using a nom de guerre within a terrorist organization (art. 12), undergoing training with a view toward committing terrorist acts (art. 13), procuring arms (art. 16), and procuring a meeting place for a terrorist organization (art. 18).
41 ICCPR, art. 15; see also UN Human Rights Committee, Westerman v. the Netherlands, Communication no. 682/1996, Doc. CCPR/C/67/D/682/1996 (December 13, 1999).
42 Tunis Military Court, case no. 12101. See reference to this case in Amnesty International, Tunisia: The Cycle of Injustice, June 10, 2003, MDE 30/001/2003, http://web.amnesty.org/library/Index/ENGMDE300012003?open&of=ENG-TUN (accessed August 19, 2007).
43 Tunis Military Court, case no. 28265.
44 Tunis Military Court, report of the investigating judge, no. 2/3736, September 22, 2004, in which the term extracted is employed to summarize Ben Hcines claim.
45 Human Rights Watch interview with Samir Ben Amor, Tunis, July 27, 2007.