Wednesday, October 31, 2012

After Ben-Ali's conviction: the state of Tunisian justice | Clive Baldwin

3:10 PM | Posted by Free Game Zone | | Edit Post

was a week very important - but the Tunisian judiciary lacks independence and the principle of "command responsibility"

few years ago, Zine El Abidine Ben Ali seemed destined to become president of Tunisia for life, having reigned since 1987. Instead, on Wednesday, a Tunisian military court sentenced him to life imprisonment for complicity in the murder and attempted murder of protesters during the revolution that started the Arab Spring.

In practice, it seems likely to mean exile for life in Saudi Arabia, the former leader of the country 75 years, fled with his family after the death of more than 100 demonstrators n ' failed to stop the uprising.

The two trials that ended Wednesday were far from ideal, although several of its senior officials were convicted and acquitted some. Absence of Ben Ali in Tunisia meant that his trial was held in his absence. So, to do him justice has not been done, while all the other accused were present.

if ever did return to the country should be entitled to a new hearing. It seems unlikely that today, with the current Tunisian government that demands more disconnected from the Saudis. Tunisian Prime Minister said that the issue of the extradition of Ben Ali is "minor".

The trial was also held before a military tribunal, which automatically raises issues of independence. Military justice is limited to prosecute soldiers for strictly military matters, and the murder trial of civilians belonging to the ordinary courts.

Despite significant reforms to the military justice took place after the revolution, which in some civilian judges and allow crime victims to participate in trials as solid parts, the problems remain. A judge senior public in Tunisia told me a few weeks ago: "The military judges who now wear robes, but underneath, they still have their uniforms and ranks" - which means that judges are still subject to the military hierarchy. Secretary of Defense appoint military judges again.
  • Despite these problems, what is happening in Tunisia should be recognized as important. It was not just Ben Ali, who was sentenced Wednesday, but several other personalities, including former Interior Minister Rafik Haj Kacem. And while the victims' lawyers and defendants seemed to have complaints about their ability to access some evidence in our follow-up hearings there was little evidence of serious violations of the right to a fair trial. In fact, the court acquitted the others, including Ali Seriati, former head of the presidential guard, to the chagrin of many. But the prosecution had not presented evidence that Seriati or forces were present during the shooting relevant or gave the order to fire on demonstrators.
In fact, the biggest problem of the legal liability of the elderly is that Tunisian law does not recognize the principle of "command responsibility" - that those in positions of authority can be criminally responsible serious crimes committed by his subordinates when they knew or should have known of the crimes and failed to prevent or punish those responsible. It is a fundamental principle of international criminal justice, and has proven time and time again to be essential in holding accountable those officials - those who rarely on the scene of a crime and not give their written orders. Without this principle in Tunisian law, the Crown had to try to prove that high actually given orders.

Tunisia rose from the headlines, often for good reason, because he has not experienced the chaos of Libya and Egypt. However, it remains in a critical condition, with its first elected assembly in the process of drafting a new constitution. At the same time, the state of justice and the fundamental rule of law remains a crucial signal whether progress has been made in the country of Ben Ali protesters wanted. Tunisia has one minister in the world for Transitional Justice, but there seems to be very slow progress on key issues to be addressed in the reform of the justice after a revolution.


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