Tunisia: New practical guide on modes of individual criminal liability before the Specialized Criminal Chambers

Today, the ICJ released Practical Guide 4 on Modes of individual criminal liability under Tunisian and international law, the last guide in a four-part series aimed to assist practitioners to ensure that the Specialized Criminal Chambers (SCC) fulfil their role in delivering justice in Tunisia in a manner consistent with the country’s obligations under international law.

The SCC were established in 2014 to try and adjudicate cases involving alleged “gross human rights violations” committed between 1955 and 2013, and referred for prosecution by the Truth and Dignity Commission (IVD). At the end of its mandate in December 2018, the IVD’s referred to the SCC about 200 cases featuring accusations of arbitrary deprivations of life; arbitrary deprivations of liberty; torture or other ill-treatment; enforced disappearance; rape and other sexual assault offences; or crimes against humanity committed by the past regime.

Trials before the SCC started in May 2018. Since the opening of the first hearing, it has been evident that the SCC face multiple challenges, including gaps in the Tunisian legal framework, which, in turn, endanger efforts to hold perpetrators to account and bring justice to victims for the gross human rights violations of the past. As of today, no trial has been completed before the SCC, and the Tunisian Constitution adopted in 2022 no longer enshrines transitional justice. The ongoing dismantling of judicial independence and the rule of law in Tunisia put the SCC and the transitional justice process at greater risk.

“The Tunisian authorities’ multiple failures to guarantee the rights of victims of gross human rights violations to effective remedies, including guarantees of non-recurrence, have paved the way for today’s crackdown on human rights and sapped efforts to address impunity for past crimes,” said Saïd Benarbia, ICJ MENA Programme Director.  

Practical Guide 4 sets out relevant international law and outlines its pertinence with respect to applicable provisions of Tunisian law governing modes of individual criminal liability. Practical Guide 4 aims to:

• Address the sources of various modes of individual criminal liability under international criminal law and discuss their potential applicability before the SCC, particularly in light of the principle of legality, including the non-retroactivity of criminal law, and the right of the accused to a fair trial.
• Examine a number of relevant modes of individual criminal liability that may apply to the crimes under international law falling within the SCC’s jurisdiction, and that are considered to reflect customary international law over the period covered by the SCC’s temporal jurisdiction.
• Describe the relevant modes of individual criminal liability under Tunisian law and analyze the domestic legal framework in light of international law and standards, highlighting the most significant gaps vis-à-vis Tunisia’s obligations under international law.

“Unless the transitional justice process is followed through effectively and perpetrators are fully held to account, impunity will remain the norm in Tunisia,” added Saïd Benarbia.

Background:

Practical Guide 1, which was released in December 2019, considers the role of international law and standards in proceedings before the SCC, while Practical Guide 2 and Practical Guide 3, which were released in September 2020, address the investigation and prosecution of gross human rights violations under Tunisian and international law, and the principles and good practices on the collection, admissibility and evaluation of evidence in the administration of justice, respectively.

Contact

Saïd Benarbia, Director of the ICJ Middle East and North Africa Programme, t: +41.22.979.3817, e: said.benarbia(a)icj.org

Download

Tunisia-Accountability series-Publications-Reports-Thematic reports-2019-ENG (Guide 1 in English, PDF)

Tunisia-Accountability series-Publications-Reports-Thematic reports-2019-ARA (Guide 1 in Arabic, PDF)

Tunisia-SSC guide series no2-Publications-Reports-Thematic reports-2020-ENG (Guide 2 in English, PDF)

Tunisia-SSC guide series no2-Publications-Reports-Thematic reports-2020-ARA (Guide 2 in Arabic, PDF)

Tunisia-SSC guide series no3-Publications-Reports-Thematic reports-2020-ENG (Guide 3 in English, PDF)

Tunisia-SSC guide series no3-Publications-Reports-Thematic reports-2020-ARA (Guide 3 in Arabic, PDF)