Legal Frameworks for Specialized Chambers: Comparative Studies for the Tunisian Specialized Criminal Chambers

5/4/2018

Howard Varney and Katarzyna Zduńczyk

In some contexts, the global community has resorted to international tribunals to prosecute the most serious past crimes, such as war crimes, crimes against of humanity, and genocide. While these international efforts contributed significantly to international justice, they were resource draining and located outside the countries in which the crimes took place. To overcome these issues, the so-called hybrid court was developed that combines domestic and international law and personnel. Tunisia has adopted a purely domestic hybrid court.

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Introduction

“On 29 December 2014, the Head of Government of Tunisia passed a decree establishing Criminal Chambers specialized in Transitional Justice within the Tribunal of First Instance of Tunis and other Tunisian cities. These Specialized Chambers, as specified in Article 8 of the law, are competent to adjudicate cases related to gross violations of human rights such as deliberate killing, rape, and any other form of sexual violence, torture, enforced disappearance, and execution without fair trial guarantees.”

Different countries have adopted a variety of models to prosecute the most serious past crimes, such as war crimes, crimes against of humanity, and genocide. Some have opted to employ their own domestic courts and law enforcement institutions, while in others contexts the global community has resorted to international tribunals, which have spearheaded the development of international criminal law.

While these international efforts contributed significantly to international justice, they were resource draining and located outside the countries in which the crimes took place. To overcome these issues, a third model was developed, mainly under the auspices of the UN and international community: the so-called hybrid courts that combine domestic and international law and personnel. These bodies were generally more economical in terms of costs and situated within the countries in which the atrocities occurred.

Two types of courts emerged within the hybrid category. The first has an “international legal basis and operates typically as an independent legal institution outside the […] domestic jurisdiction” (e.g., the Special Court for Sierra Leone (SCSL) and the Special Tribunal for Lebanon(ST)), whereas the second kind are “mixed domestic-international” courts that “form part of the domestic system but with adjustment in relation to the composition of staff or the applicable law” (e.g., War Crimes Chamber in Bosnia and Herzegovina (WCC BiH), Iraqi Special Tribunal (IST), War Crimes Chamber in Serbia (WCC Serbia), or Special Panels to the Dili District Court in East Timor (SPSC)). In some countries only specialized chambers were established, while in others, the specialization also involved the creation of an office of the prosecutor and other units, such as the registry and the defense.

Tunisia has adopted a purely domestic model. It established the Specialized Criminal Chambers (SCCs) under national law within the courts of first instance, and the SCCs have exclusive jurisdiction over the crimes in question. While the 2013 Basic Law on Transitional Justice (hereinafter “TJ Law”) provides for the establishment of the SCC, it lacks specific provisions regulating their organization and functioning.

There is no blueprint to establishing special chambers. The details in respect of jurisdiction, structure, and rules of evidence and procedure change from one example to another. This briefing paper will provide an overview of such components.

Other briefing papers in this series on transitional justice in Tunisia include:

Transitional Justice in Tunisia: Tension Between the Need for Accountability and Due Process Rights

The Role of Victims in Criminal Proceedings

Date published: 
5/4/2018