The transitional justice law does not . . . explain whether the jurisdiction of the specialized chambers will trump that of the military justice system, which currently has jurisdiction over abuses by security forces. The [National Constituent Assembly] should reform Tunisian legislation to restrict the mandate of military justice only to military crimes committed by military personnel. If the specialized chambers are to try the most serious and systematic human rights violations that involve many perpetrators as well as the state apparatus, legislators should first fill a gap in Tunisia's penal code concerning command responsibility. This established principle in international law holds senior officers liable for crimes that their subordinates committed with their explicit or tacit approval. The lack of provisions criminalizing command responsibility in Tunisian law contributed to the military courts' seemingly light sentences for Ben Ali and senior commanders for their role in commanding the troops that killed scores of protesters during the Tunisian uprising.
Accountability for Past Abuses
After independence in 1956, and until the fall of Ben Ali, Tunisian authorities routinely tried to silence opposition voices. Thousands of Tunisians -- union activists, members and leaders of leftist and Islamist parties, and other people with ideological leanings that displeased the authorities -- were tortured, beaten by state security forces, and convicted and imprisoned after unfair trials. During the presidencies of Ben Ali and his predecessor, Habib Bourguiba, the judiciary systematically failed to prosecute abuses by Tunisian officials, allowing a culture of impunity to take hold. Since 2011, Tunisian authorities have made some strides to prosecute and try human rights violations, most notably those committed during the uprising that toppled Ben Ali, from December 17, 2010, through February 2011. Police responded with excessive force and brutality to protests against the president's authoritarian rule, killing some 132 protesters and injuring hundreds more.
The trials for these killings started at the end of 2011 in military courts, which have jurisdiction over the military and security force members. Three first instance military courts started investigations in July 2011, and grouped the cases geographically. Group trials in the military tribunals of Tunis and Le Kef started in November and December 2011. The defendants included two former interior ministers, five general directors of the ministry, and several high-level and mid-level security force commanders. The Le Kef military court pronounced sentences on June 13, 2012, and the Tunis court on July 19, 2012.
The appeals military court on April 12, 2014, confirmed Le Kef and Tunis first instance sentencing of Ben Ali in absentia to life in prison for complicity in murder. However, it lowered the sentences for all the other high-ranking officials. These trials appeared to be generally conducted in a way that respected the rights of defendants. However, several factors undermined the extent to which they were able to hold accountable those believed responsible for unlawful killings. These included the prosecution's failure to build the evidence to identify the people directly responsible for the crimes, and the lack of penal code articles that would make possible the prosecution of senior officers for responsibility over crimes that their subordinates committed. The government's failure to press effectively for Ben Ali's extradition from Saudi Arabia also undermined accountability. Although Ben Ali's security forces used torture extensively, the new authorities have, in the three years since Ben Ali's overthrow, investigated and prosecuted only one torture case. In that case, known as [the] Barraket Essahel case, a military court convicted former Interior Minister Abdallah Kallel and three security officials of "using violence against others either directly or through others," and sentenced them to two-year prison terms. The case arose from the arrest and detention of 17 senior military officers in 1991 in connection with an alleged plot by the Islamist movement Al-Nahdha against Ben Ali. . . .Update: According to this Dalsan Radio report, the chief judge of the military court, Libaan Ali Yarow, has called Human Rights Watch's allegations "baseless."