New round of trials in Tunisia -- but there are big issues to resolve

Human Rights Watch has issued an excellent report on a new round of trials in Tunisia, in cases that had previously been tried by flawed military courts (with lenient outcomes). But the new round of trials raises other questions, such as the application of double jeopardy principles and the principle of commander responsibility. Excerpt:

One issue that may arise is of the principle of “double jeopardy” – that is, that defendants have a right under international law not to be tried twice for the same offense. The United Nations Human Rights Committee has stated that this principle is not breached where a higher court quashes the verdict and orders a new trial, or where the trial is reopened due to exceptional circumstances such as the discovery of new evidence. Under the Rome Statute of the International Criminal Court (to which Tunisia is a party), trials before the ICC where someone has previously been tried in another court are not considered to violate this principle, if the purpose of the previous proceedings was to shield the person concerned from criminal responsibility, or if those proceedings otherwise were not conducted independently or impartially in a manner designed to avoid the person being brought to justice.

The military court tried the defendants for the conduct of security forces under their command. However, Tunisian law is not well-equipped to address command responsibility, a key concept in international criminal law that makes commanders and civilian superiors liable for serious crimes committed by their subordinates if the superiors knew, or had reason to know, of the crimes and failed to take all reasonable steps to prevent or punish them. The Specialized Chamber should take into consideration the customary international law concept of command responsibility when trying the case. Tunisian legislators should also introduce a new provision in the penal code on command responsibility consistent with its definition under international law and incorporate the Rome Statute into domestic legislation.