(Tunis) – Tunisia’s Truth and Dignity Commission sent its first criminal case stemming from the country’s 2011 uprising, for trial before a system of special courts on May 18, 2018, Human Rights Watch said today.

The case sent to the Specialized Chamber of the Court of the city of Kasserine, concerns the killing of 20 protesters and the wounding of 16 others by gunfire in the towns of Kasserine and Tala, during the 2011 uprising. Military courts first tried these cases in 2012 and 2014, in flawed trials that resulted in lenient sentences.

“More than seven years after the killings, reopening these cases provides a new opportunity for victims and survivors to see justice done for their suffering,” said Amna Guellali, Tunisia director at Human Rights Watch. “This is a significant step in Tunisia’s troubled path toward transitional justice.”

The Kasserine Chamber is one of 13 established by Tunisia’s transitional justice law in governorates across the country to try human rights violations committed under the presidencies of Habib Bourguiba, from 1956 to 1987, and his successor, Zine el-Abidine Ben Ali.

During Tunisia’s popular uprising, which toppled Ben Ali in January 2011, security forces killed 132 protesters and injured hundreds more across the country. Many of the deaths and injuries, between December 17, 2010 and January 14, 2011, documented by Human Rights Watch, resulted from the security forces’ use of unjustifiable lethal force.

The First Instance Military Court in Le Kef, in June 2012, convicted Ben Ali in absentia for complicity in murder for the events in Kasserine and Tala, and sentenced him to life in prison. Other high-level officials were sentenced to prison terms of up to 12 years.

On April 12, 2014, the Military Appeals Court confirmed the life sentence for Ben Ali but revised the charges against the interior minister and the head of the security services at the time and other co-defendants, convicting them of “negligence,” and lowering their sentences to three years in prison. They were all freed after serving their time. A Human Rights Watch review of these cases concluded that the proceedings were flawed and failed to deliver justice to the victims.

The new trials will involve 24 defendants, including Ben Ali, the interior minister, and security services commanders, on charges of killing and crimes against humanity.

Since its establishment in 2014, the Truth and Dignity Commission (Instance Vérité et Dignité) has been investigating cases of gross violations of human rights committed between 1955 and 2013. The transitional justice law mandates the commission to transfer serious crimes to specialized chambers that “will have jurisdiction over widespread or systematic human rights violations, including deliberate killing, rape and sexual violence, torture, enforced disappearance, and execution without fair trial guarantees.” The law requires special training in transitional justice for the judges who preside over these chambers, which were set up within the country’s court system.

The Tala-Kasserine case is the seventh that the IVD has transferred to the Specialized Chambers. The first six date back to the 1990s or earlier. The first of these trials, regarding the forced disappearance of Kamel Matmati, an Islamist activist, will open on May 29. The other cases involve an extrajudicial killing and four deaths in detention.

The new trials should respect the rights of the defendants, Human Rights Watch said.

One issue that may arise is of the principle of “double jeopardy” – that is, that defendants have a right under international law not to be tried twice for the same offense. The United Nations Human Rights Committee has stated that this principle is not breached where a higher court quashes the verdict and orders a new trial, or where the trial is reopened due to exceptional circumstances such as the discovery of new evidence. Under the Rome Statute of the International Criminal Court (to which Tunisia is a party), trials before the ICC where someone has previously been tried in another court are not considered to violate this principle, if the purpose of the previous proceedings was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially in a manner designed to avoid the person being brought to justice.

The military court tried the defendants for the conduct of security forces under their command. However, Tunisian law is not well-equipped to address command responsibility, a key concept in international criminal law that makes commanders and civilian superiors liable for serious crimes committed by their subordinates if the superiors knew, or had reason to know, of the crimes and failed to take all reasonable steps to prevent or punish them. The Specialized Chamber should take into consideration the customary international law concept of command responsibility when trying the case. Tunisian legislators should also introduce a new provision in the penal code on command responsibility consistent with its definition under international law and incorporate the Rome Statute into domestic legislation.

The Kasserine and Tala Military Trials

The group trial before the Le Kef Permanent Military Court concerned killings in the western cities of Tala and Kasserine, most between January 8 and 12, 2011. On the evening of January 8, the anti-riot police who arrived in Tala from other towns shot five people dead. They killed a sixth person on January 12, then left the town and the army replaced them. In Kasserine, where anti-government demonstrations began with a protest rally by lawyers on January 4, police began using live fire against protesters on January 8, resulting in the death of 13 protesters, according to the military courts.

The Le Kef Military Court issued its judgment on June 12, 2012. It convicted former president Ben Ali in absentia of complicity in murder, under article 32 of the Tunisian penal code, and sentenced him to life in prison. It convicted Rafiq Haj Kacem, interior minister from November 2004 to January 12, 2011, on the same charge and sentenced him to 12 years in prison.

It also convicted and imposed 10-year prison sentences for the same charge on Adel Tiouiri, former director general of national security; Jalel Boudrigua, former director of the Anti-Riot Police (Brigades de l’ordre public, known as les BOP); Lotfi Ben Zouaoui, former director general of public security; Youssef Ben Abdelaziz, a former brigadier general in the Anti-Riot Police; and Khaled Ben Said, former director of the Special Anti-Terrorist Brigades. The tribunal also convicted six lower-ranking officers of murder of protesters under articles 201, 202, and 205 of the penal code, and sentenced them to prison terms ranging from 1 to 15 years.

The Military Court of Appeals on April 12, 2014, confirmed the first instance conviction and sentence for Ben Ali, but reduced the charges and sentences for the other defendants. The court ruled that Kacem, and the former senior security officials were guilty only of “failure to act,” under article 1 of Law No. 48 of June 1966 and reduced their sentences to three years. The Military Court of Appeals sentenced the lower-ranking officers to prison terms ranging from one to five years for murder, manslaughter, and violence resulting in death, under articles 201, 202, and 205 of the penal code.

Following a public outcry over the appeals verdict, the National Constituent Assembly enacted a law on June 12, 2014, specifically addressing how the transitional justice system should handle the human rights abuses committed during the uprising. The law classifies killing or injuring protesters during the 2010-2011 uprising as “gross violations of human rights” under the transitional justice law. It specifies that when the Truth and Dignity Commission sends cases involving abuses during the uprising to the public prosecution office, it will automatically transfer the cases to the Specialized Chambers, which will have primary jurisdiction to try them.

Command Responsibility

Tunisian law contains no provision defining command or superior responsibility for crimes. Article 32 of the penal code provides that a person can be held criminally accountable only if they directly commit a crime or are complicit in the commission of a crime. Despite joining the ICC in 2011, Tunisia has not passed any law to incorporate the Rome statute and definitions of international crimes into domestic law.

The judges in the military appeals trial came to a different conclusion from those who presided over the first instance trial. The lower court judges relied on inferential reasoning to surmise that orders existed to use lethal force against protesters, convicting the defendants under article 32 of the penal code. But the Appeals Court judges held that complicity in the meaning of article 32 requires proof of positive acts, such as written or oral orders, to further the criminal enterprise.

This reasoning led the Appeals Court to reverse the convictions of the high-level defendants and to convict them instead of simple “negligence.” International criminal law established long ago that criminal liability of military and civilian commanders in the cases of the worst crimes does not require written or explicit orders to commit the crimes. Tunisian law has still not clearly adopted these principles.

The specialized chambers will have the opportunity to apply important principles of responsibility under customary law.

Command or superior responsibility, as the concept is understood in international law, imputes liability to commanders or civilian superiors for the most serious crimes committed by subordinate members of armed forces or others under their control. Under this principle, a commander can be held criminally liable even if they did not order the crimes if three conditions are met. There must be an effective superior-subordinate relationship. The commander must have known or had reason to know that his subordinate was committing a crime. And the commander failed to take all reasonable steps to prevent or punish such acts.

Under UN standards on the use of force by security forces, governments and law enforcement agencies are required to ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.

The UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions state: “Superiors, officers or other public officials may be held responsible for acts committed by officials under their authority if they had a reasonable opportunity to prevent such acts.”

Application of command responsibility to convict commanders would also not violate the principle of non-retroactivity – the principle under international law of not convicting someone of a crime that was not yet a crime when it was committed – because customary international law would apply. The International Criminal Tribunal for Former Yugoslavia called it “a well-established principle of conventional and customary law.” It is also cited in the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

In addition, Tunisia’s membership in the ICC requires it to adopt the principle of criminalizing command responsibility for genocide, war crimes, and crimes against humanity. The Rome Statute, which created the ICC, makes it clear that command responsibility imputes liability to the military commanders or civilian superiors for crimes committed by subordinate members of armed forces or others under their effective control. Tunisia ratified the Rome Statute on June 24, 2011.