Martyrs and Military Justice in Tunisia: Interview with Lamia al-Firhani

2017-12-19    |   

Martyrs and Military Justice in Tunisia: Interview with Lamia al-Firhani

Editor’s note: In Tunisia, the military judiciary assumed responsibility for cases involving those who were injured or killed in the revolution, in accordance with pre-revolutionary laws. Post-revolutionary legislation sought to broaden the military courts’ jurisdiction, with the aim of supporting their work on these important cases. These cases have become a matter of significant legal and societal debate. To shed further light on the matter, The Legal Agenda interviewed lawyer Lamia al-Firhani, a public figure whose name is connected with these cases in several ways. To begin with, she is the sister of the martyr Anis al-Firhani. She was also enlisted as one of many lawyers defending the families of martyrs and wounded of the revolution from the beginning of the judicial prosecution of their cases. In addition, she is the president of the Association of Families of Martyrs and Wounded of the Revolution, known as Awfia (“Faithful”), which played a significant role in the legal struggle surrounding these cases. Finally, she is a former member of the Supreme Body to Realize the Objectives of the Revolution, Political Reform, and Democratic Transition.

The Legal Agenda: How did the military judiciary come to assume responsibility for cases related to martyrs and wounded of the revolution in Tunisia?

al-Firhani: In early March 2011, there was increasing talk that the military judiciary was about to take up the cases of the martyrs and wounded of the revolution. I recall that relatives of the victims, including myself, tried to ask the investigating judges of the civilian judiciary about it; at the time, they were the ones in charge of these cases. We were told “that’s not correct; it’s only rumors.” But it soon became clear that the leaks were in fact an attempt to put out feelers about this possibility. After that, the judicial investigative judges were taken off cases involving the martyrs and wounded of the revolution, and those cases were given to the military courts. That was only five months after the revolution.

The Legal Agenda: Yet the military judiciary’s assumption of responsibility was a legal maneuver: it happened in accordance with Article 22 of the law regulating the Basic Law of the Internal Security Forces.[1]

al-Firhani: I firmly believe that the aim of removing the judiciary’s investigating judges from the cases [at hand] was not a matter of implementing the law. In my view, when they issued decisions relinquishing these cases, the non-military judges abandoned the revolution. I remember how they initially rejoiced at the revolution, thinking it would provide them with conditions to carry out judicial work independently. And yet the revolution’s actual outcome was handing over these cases to a special jurisdiction that does not meet the conditions of a fair trial, which ought to be guaranteed to all.

The Legal Agenda: So you consider the civilian judiciary’s relinquishing of these cases in favor of the military courts to be a misstep, contradicting the principles of a fair trial––even if on the surface, it was legally sanctioned?

al-Firhani: And I believe that the true motivation behind the judiciary giving up the cases of the revolution’s martyrs and wounded was a fear of the burden that they represented. Given the criticism directed at the judiciary after the revolution, and given the power of the security forces’ syndicates at that time, the members of the investigative judiciary handed over these cases in order to escape the pressures they were under.

In this context, I want to mention something I witnessed during the case of my brother, the martyr Anis al-Firhani. The investigating judge decided to go to the headquarters of the [security] intervention units to consult their files; his aim was to determine the identity of whomever among its members had secretly shot [Anis]. A day before his scheduled visit, however, the investigating judge was told that members of the security division were determined to resist his efforts. There was nothing he could do but silently rescind his decision.

The Legal Agenda: Abdelkarim Zubaidi was minister of defense when the incidents you are discussing took place; on March 15, 2012, he confirmed to the Commission for Martyrs and Wounded of the Revolution that the military judiciary had not requested these cases, and was in fact surprised when they were handed over to them. His statement contradicts what you have said.

al-Firhani: His statement is not true at all. It is contradicted by the judicial files, which include numerous pieces of outgoing correspondence issued by the military judiciary in which requests were made that the civilian investigative judges forgo the cases in favor of the military courts. I will add here that in Anis’s case specifically, the military judge even began hearing witnesses and conducting investigations before the investigative judge had left the case.

The Legal Agenda: When did you sense that the military trials had violated the conditions of a fair trial in these cases?

al-Firhani: Firstly, from a legal standpoint, at the time that the military courts took on the cases of the martyrs and wounded, it is important to note that the courts included members from the same cadre of security personnel who were being charged. These “security officials” had been appointed by the minister of interior.[2] These tribunals did not implement the principle of right to appeal in their judicial proceedings. Furthermore, the rules governing these tribunals deprive the injured parties from the right to be party to the lawsuit. Based on these legal impediments, the civilian judges ought to have rejected the transferral of these cases to this exceptional jurisdiction.

In the second place, that is, in practical terms, the investigations were directed against both field agents and leadership in the security forces. Yet it had been expected that the judicial proceedings would discuss the involvement (or lack thereof) of the military establishment in the events of the revolution specifically at the level of its leadership. Consequently, the military tribunals were unable to convince the victims or accused members of the security forces that they were capable of uncovering the truth or providing a fair trial. This was because at the end of the day, they were military courts. It was feared that they did not seek the truth so much as seek to exonerate the military leadership.

The Legal Agenda: How do you interpret the fact that some families of those killed or wounded in the revolution have welcomed the transfer of their cases to military courts?

al-Firhani: It must be acknowledged that a number of those who were injured in the revolution, as well as the families of martyrs––along with most civil society organizations and active legal figures––were affected by propaganda at the time. Personally, I was among those who feared the transferral of these cases to the military judiciary. I was unable to confront the propaganda surrounding the military judiciary’s assumption of revolutionary justice; and so I, along with a number of those wounded in the revolution and family members of martyrs, founded the Awfia (“Faithful”) Association of Families of Martyrs and Wounded of the Revolution. The goal of the organization is to oppose the course that events were taking and warn of its inadequacies.

The Legal Agenda: In response to your objections about the composition of military courts and the absence of a right to appeal, the Tunisian legislature issued decrees 69 and 70 of 2011.[3][4] It also authorized those affected to be party to the cases. How do you view these reforms?

al-Firhani: I consider these legislative reforms to be the fruits of the pressure we exercised. Despite their importance, however, their practical effects on our cases have been limited. For instance, the investigating judges of the military court in the major cases––that is, cases involving martyrs in Tunis, Kasserine, Tala, and Sidi Bouzid––made sure to finalize their investigations only two days before the legislation modifying their proceedings came into force.[5] As a result, the injured parties were prevented from being present at the most important investigating stage of the cases. This is a key indicator, affirming once more that the military tribunals were run in accordance with a preset plan. Its goal was to control the course of the investigations, far from the eyes of those impacted and out of public view. It also demonstrates that if there had been pressure from civil society organizations and political activists, the decisions to transfer the cases to the military judiciary’s jurisdiction could have been retracted.

The Legal Agenda: At the end of the initial transitional stage, the National Constituent Assembly was convened. How do you evaluate this body’s approach to the cases of the martyrs and wounded of the revolution?

al-Firhani: Nothing changed. The political class continued to give its blessing to the military courts’ control of the cases. Witness, for example, the actions of Yamina Zoghlami, chairwoman of the Commission for Martyrs and Wounded of the Revolution and General Amnesty within the National Constituent Assembly. At the conclusion of her visit to the administration of the military judiciary, she affirmed her confidence in its ability to ensure the conditions for a fair trial. A number of prominent public personalities and legal figures mobilized in defense of the same position.

The Legal Agenda: What do you mean when you say “gave its blessing to the military courts’ control of the cases”?

al-Firhani: I think this question is important because it points to something that the Tunisian judicial field had never dealt with before. The military judiciary conducted a successful public relations campaign targeting prominent figures in the political and legal fields. As a result, these figures were transformed into supporters of military justice. The military judiciary won the propaganda battle; during that period, actors within the judiciary as well as some families of martyrs deemed the military judiciary to be the most capable of handling the trials of the martyrs’ killers. They managed this by claiming to be bolder than the civilian judiciary. They claimed that the military police, which they controlled, would be able to bring the accused to justice––in contrast with the non-military justice system, which had no such forces at their disposal.

The Legal Agenda: How did you find the succession of rulings that followed?

al-Firhani: When the initial rulings were issued, it became clear that justice had not been pursued to the extent that public opinion had desired. One need only to look to the absence of judicial discretion in the way that the sentences of accessories to the crimes were more severe than those of the primary perpetrators. No convincing explanation was given in the sentences,[6] nor was there a real investigation of the evidence behind the charges. And later, when appellate rulings were issued, it became clear that the military courts were seeking to close the cases. Practically speaking, their aim was to release any of the accused who belonged to the security leadership; their sentences had already been completely or nearly served. For me, the appellate rulings were the most painful parts of the story of these cases. Because of the inadequacy of some lawyers, appeals made on the right to be party to the case were denied, and the verdicts overturned in response to appeals made by the public prosecution. As a result, some families of the martyrs and wounded were excluded from the judicial process. I think any one of the rulings issued is sufficient in and of itself to reveal the dangers of a course of events whose outcome had been determined from the start.

The Legal Agenda: Basic Law 17 of 2014 permits legal units specialized in transitional justice to re-examine cases of the revolution’s martyrs and wounded, so that they do not simply reach a dead-end in military courts. Did this law give you hope?[7]

This law was one of the fruits of a demonstration that Awfia, along with families of the martyrs and wounded, staged at the headquarters of the National Constituent Assembly. We protested the appellate rulings issued by military courts, which we considered to be flouting the revolution. As a result, we view this law in a positive light, considering that it was the product of our struggles. In reality, however, we have seen that the Truth and Dignity Commission has received no response to its requests for files on these cases from the administration of the military judiciary. It appears that the seriousness of the request was not made evident. And so we will continue the struggle to reopen the files of the revolution’s martyrs in a search for the truth. For those who have wronged the nation, there can be no escape from punishment.

This article is an edited translation from Arabic.


[1] Article 22 of Law 70 of 1982 (August 6, 1982), Regulating the General Basic General Law of the Internal Security Forces, states, “Cases to which a member of the Internal Security Forces is party shall be referred to military courts, in the event of an incident that occurred within the direct scope of work, and which affects the internal or external security of the state, or the maintenance of the system in public roads and facilities and public and private institutions, particularly during or after public meetings, processions, reviews, demonstrations, and gatherings…”
[2] Article 22, Paragraph 2, states, “the military court must include two members of the same body to which the accused belongs, and they shall be appointed by the Minister of the Interior, who shall take into account the rank and position of the suspected or accused party.”
[3] Decree 69 of 2011 (July 29, 2011), Amending and Supplementing the Military Procedural and Penal Code.
[4] Decree 70 of 2011 (July 29, 2011), Organization of Military Justice and Regulation of the Statute of Military Justice.
[5] Section 6 of Decree 69 states that it comes into force on September 16, 2011.
[6] That is, without cause or reasoning given.
[7] Basic Law 17 of 2014 (June 12, 2014), Rulings in Connection with Transitional Justice and Cases from the Period from 17 December 2010 to 28 February 2011. This law deemed the cases of the martyrs and wounded of the revolution to be among the serious violations of human rights that the Truth and Dignity Commission had the authority to transfer to specialized judicial departments for transitional justice, without incurring the conflict associated with a juridical link.

Share the article

Mapped through:

Articles, Fair Trial and Torture, Independence of the Judiciary, Transitional Justice, Tunisia

For Your Comments

Your email address will not be published. Required fields are marked *