29 May Tunisia: a Tortuous Path Towards Accountability and Justice for Victims of Gross Human Rights Violations
[Valentina Cadelo is a Legal Adviser at International Commission of Jurists’ Middle East and North Africa Programme.]
Today, Tunisia marked the third anniversary of the opening of trials before the Specialized Criminal Chambers (SCC), the very first example of domestic criminal trials related to past gross human rights violations in the Middle East and North African (MENA) region.
Three years ago, when the trial on charges of murder and concealment of a human corpse arising from the enforced disappearance of Kamel Matmati opened before the SCC in Gabès, many felt that, following the 2011 uprising and collapse of the Ben Ali regime, this was a crucial step towards the implementation of the 2013 Transitional Justice Law and the beginning of the end of impunity.
Yet, Tunisia’s path towards justice and accountability has proved rife with significant challenges. Despite the commencement of most trials before the SCC, hearings have been advancing at a glacial pace, and victims of gross human rights violations, including the relatives of Kamel Matmati, are still waiting for justice to be delivered.
The SCC were established in thirteen Tribunals of First Instance across Tunisia to try cases involving “gross human rights violations” perpetrated between 1955 and 2013 and that the Truth and Dignity Commission (Instance Verité et Dignité, IVD) referred to the SCC for trial.
At the end of its mandate in December 2018, the IVD’s had referred 200 cases of arbitrary deprivation of life, arbitrary deprivation of liberty, torture and other ill-treatment, enforced disappearance, rape and sexual assault, and crimes against humanity committed by the former regime to the SCC for trial.
Over the past three years, hearings have been conducted in all the thirteen SCC. However, no verdict has beendelivered to date.
Lack of political will to introduce reforms
Since the opening of trials, the SCC have been facing several challenges, resulting mainly from an increasing reluctance and a lack of political will on the part of the Tunisian authorities to support transitional justice and accountability.
The success of Tunisia’s pursuit of justice for the gross human rights violations of the past is very much dependent on the political will of its authorities to adopt comprehensive legal, institutional and policy reforms. As the International Commission of Jurists (ICJ) has already highlighted, many of the obstacles that the SCC are currently facing are directly linked to Tunisia’s failure to adopt such reforms.
Key reforms should tackle various shortcomings in Tunisia’s Criminal Code, Code of Criminal Procedure, as well as the flawed domestic laws regulating the security forces and the judiciary. While these reforms would enhance the effectiveness of the SCC, they would also ensure that Tunisia fulfills its obligations under international law to criminalize and investigate and prosecute gross human rights violations, domestic procedure on evidence is applied in accordance with international standards, and to ultimately guarantee the rights of victims to access to justice and effective remedies.
The Tunisian authorities’ lack of cooperation
The Tunisian authorities’ failure to cooperate with the SCC is another critical hurdle to the effective conduct of criminal trials. This failure has resulted in three main obstacles in the way of justice.
The first is the ongoing lack of execution of summons by Tunisia’s judicial police, and the consequent absence of most of the accused at trial. Such absence, in turn, has a series of extremely detrimental knock-on effects that ultimately defeat the very purpose of setting up the SCC as transitional justice mechanisms, including their role in establishing the truth about past abuses, and in granting justice to victims.
The second obstacle arises as a result of the very limited role that the Office of the Public Prosecutor plays in the investigation and prosecution of SCC cases. To date, prosecutors have simply automatically transferred cases to the SCC pursuant to the Transitional Justice Law, while taking little or no part in the conduct of trials. This abdication of responsibilities on their part is all the more concerning considering the crucial role that prosecutors play in the administration of justice, particularly in ensuring due process and upholding the rights of suspects throughout the investigation and prosecution process.
The third and last obstacle detrimentally affecting the SCC arises from the Tunisia’s High Judicial Council’s lack of support for their work. This is exemplified by the concerning insistence by the Council in applying the annual judicial rotation system also to the SCC, which, therefore, have their composition almost fully changed every year, with important negative repercussions on the timely progress of SCC trials.
The way forward
As other transitional justice experiences across the world show, the path towards justice and accountability is certainly not free from challenges, many of which are often deeply rooted in the context where such processes take place. Tunisia, as the first country in the MENA region to try abuses committed by the past regime should certainly be praised for having committed to the pursuit of justice and accountability for past crimes. But this initial, important effort risks being in vain, especially if it is not accompanied by sustained support and engagement of political actors and authorities. Tunisia should thus recover the political will that was at the origin of its push to transition to democracy and immediately adopt a robust set of reforms that fully break the cycle of impunity and truly guarantee human rights. At the same time, the Tunisian authorities should provide all necessary support to the SCC to uphold victims’ right to truth and justice in compliance with international law.