January 5, 2017 - Tunis, Tunisia - Protests and demonstration in front of the seat of the court truth and dignity by the victims of the regime of Ben Ali former president of the republic, protesters demand compensation and justice according to them. Chokri Mahjoub/Zuma Press/PA Images. All rights reserved. The Transitional Justice (TJ) process and the Truth and Dignity Commission in Tunisia (IVD) have been subject to systematic and fierce campaigns questioning their legitimacy over the past five years. At every step of the way, there were parties, organisations, and experts calling for the termination of the IVD or for the resignation of its president.
Attempts to undermine the process have taken several forms, ranging from personal and political assaults against its members to financial concerns over its budget.
The most recent wave of anti-transitional justice campaigns occurred after the IVD started referring cases to the specialized criminal chambers (SCC). In an attempt to obstruct these proceedings, opponents of the TJ process have tried to drown the debate in a confusing legal mess over issues that have been settled in the 2014 constitution, international conventions, and the TJ law of 2013.
The IVD mandate and the illegal parliament vote.
According to article 18 of the Law on Establishing and Organizing Transitional Justice, the Truth and Dignity Commission’s work is set for four years, with a possibility of a one-year renewal, to be decided by the commission. On March 24th and 26th, the Tunisian parliament voted not to extend the mandate of the IVD, a decision that constitutional law professor Cais Said described as an “assassination” of the law. According to Said, the parties behind this realized they would not reach the absolute majority necessary to oppose the one-year extension so they changed the question to “who is for the extension?”, reversing the roles and turning the non-renewal into the normal state of affairs, and the renewal into the exceptional demand. To make matters worse, a quorum to pass the extension was not even reached, in addition to being out of the jurisdiction of the parliament to begin with.
On March 26th, the administrative court ruled in favour of the IVD’s decision to renew its mandate and the IVD declared it will finish its work on December 31st, 2018. The damage was already done, however. Everything the IVD did from that moment onwards was shrouded in claims of illegitimacy.
The trials and the legal fallacies
The specialized criminal chambers were established within the Tribunals of First Instance. They adopt principles of transitional justice and have jurisdiction over cases related to gross violations of human rights. Referring cases of victims to the SCC constituted one of the most substantive and long-awaited steps of the whole process.
The trials, just like the public hearings, were considered by many to be agenda-driven
The trials, just like the public hearings, were considered by many to be agenda-driven, biased, and vengeful. But more importantly, case referrals and subpoenas conducted after May 31st were branded as illegal because, for those who opposed the extension of the mandate, the IVD has been functioning outside of the law for the past few months.
The most common complaint concerns the ne bis in idem principle, or double jeopardy, which states that a person cannot be tried for the same offence twice. Most of the accused in cases related to the revolution have already been tried by the military court in controversial trials in 2011/12 and either sentenced to a few years or acquitted. The ne bis in idem principle is enshrined in several international conventions, such as article 14(7) of the International Covenant on Civil and Political Rights, as well as being stated in article 132bis of the Tunisian Criminal Code. One of the arguments of those calling for the termination of these trials is that they violate this principle. Lawyer Mounir Bensalha stated – while defending the accused in the cases of the victims of the revolution of Cologne Street – that the defendants have already been tried and would not attend another trial initiated by a commission with no legitimacy.
The reality is that when we talk about old violations, exceptions to rules such as double jeopardy or statutes of limitations are needed to achieve justice. The United Nations’ Updated Set of Principles to Combat Impunity provided two exceptions for the double jeopardy principle, in principles 22 and 26(b). Similar exceptions are held by the European Court of Human Rights and the International Criminal Court. Regarding the Tunisian constitution, article 148(9) states that “The state undertakes to apply the transitional justice system in all its domains and according to the deadlines prescribed by the relevant legislation. In this context, the invocation of the non-retroactivity of laws, the existence of previous amnesties, the force of res judicata, and the prescription of a crime or a punishment are considered inadmissible.” Res judicata encapsulates the principle of double jeopardy. The claim that these trials are unconstitutional and do not adhere to universal conventions is simply a lie.
The issue is that these directed misconceptions are no longer only privy to courtroom proceedings and defence strategies. They have become the talk of the country after the appearance of former Minister of Interior Ahmed Friaa on TV and radio stations, tearing up and denouncing his re-trial as a violation of human rights. During the trial of the case of “the revolution events of Lafayette,” Friaa and others have been prohibited from travelling until the end of the proceedings. Friaa brought up the illegality of his trial again and again, and in one instance even linked this to the economic situation asking “how would investors come to a county where a person can be tried twice?”
Friaa got all the media attention possible and in a matter of days, the ne bis in idem principle became a public concern.
The prospect of real justice
It is hard to believe that lawyers and politicians are not familiar with exceptions in trials of human rights violations. However, the success of these trials is proving to be a real threat for remnants of the ousted Ben Ali regime, for whom the only way to deal with it is to undermine the commission, the trials and the SCC. The SCC is undeniably instrumental during this phase. Faycal Barakat was a member of the Islamic Tendency Movement (Al-Nahdha now), who was tortured to death in a police station in Nabeul. His family contacted the authorities as well as international organizations and opened an investigation in his death in 1991, 1993, 1996 and 2009. Of course, these attempts never led to anything. For the families of these victims, there is no hope in the normal judiciary, which has been compromised by the Ben Ali regime. According to the president of the Association of Tunisian Magistrates, Raoudha Karafi, during a press conference, the SCC provides a chance for the judiciary to play a role in righting wrongs. Specialized courts empower the judiciary, and in a transitional period it would be dangerous to strip away these chambers’ specialization.
As the trials went forward, attempts to obstruct the process became more extreme. On October 25th, the Macrhrou and Nidaa Tounes blocs left the parliament and announced the suspension of their work temporarily until the presidency of the government shut down the IVD, holding up the vote on a loan to fund the construction of the central metro station in Barcelona square. The parties questioned the government’s failure to uphold the parliament’s decision regarding the IVD, and called for the immediate termination of the commission and the repeal of all cases and decisions issued after May 31st.
On November 3rd, Abir Moussi, former assistant secretary general of the RCD, Ben Ali’s party, and a fierce supporter of Ben Ali, organized a protest in front of the IVD headquarters. The protesters mirrored slogans from the Tunisian revolution, specifically “Degage”. “Degage”, meaning “get out,” was used against Ben Ali in 2011 and is now being used against the commission investigating Ben Ali’s crimes in 2018. Even more alarming, signs saying “the Arab spring is over” were raised. Practices like this make it absolutely clear that the legal side of the matter and the ‘legitimacy’ of the IVD are a smokescreen behind which counter-revolutionary powers are grouping.
Justice for the victims is the least concern for political parties
Justice for the victims being the least of their concerns, political parties like Nidaa Tounes, Machrou, and the Free Constitutional Party have strongly opposed the transitional justice process at every turn. However, such extreme reactions when there is less than two months left in the IVD mandate can only mean one thing: these trials are on the right path to achieve justice for the victims and for Tunisia.
Justice for the victims of the Bourguiba and Ben Ali regimes is bigger than the individuals or their families. It is justice for a country, and it is justice for the generations that will come. Tunisia might not be under a dictatorship now but police impunity is still ingrained. Aymen Othamani, 19, was killed by a gunshot to the back during a customs police raid in Sidi Hassine. Omar Abidi, also 19, jumped into a canal while running from police and drowned while they watched and said, “Learn how to swim.”
The trials of those responsible for gross human rights violations will help guarantee that these abuses and deaths do not happen again. It is only through accountability that we can heal wounds and achieve true reconciliation.