Drop Charges for Criticizing Army

Former Presidential Adviser Faces Military Court Trial
August 22, 2012

(Tunis) – Tunisia’s military prosecutor should immediately drop charges and lift the travel ban against Ayoub Massoudi, former adviser to President Moncef Marzouki, for criticizing the country’s armed forces, Human Rights Watch said today.

Massoudi was charged on August 15, 2012, with impugning the reputation of the army under article 91 of the code of military justice and defamation of a civil servant under article 128 of the penal code. Massoudi’s first appearance before the investigating judge is scheduled for August 22.

“The right to subject public officials to scrutiny and criticism is one of the most basic elements of freedom of expression, a hallmark of democracy, and essential to promote debate about matter of public interest,” said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. “These charges, and the laws they are based on, should have no place in a democratic Tunisia that respects human rights.”

Under Tunisian law military courts enjoy the jurisdiction to try civilians and this also needs to be amended, Human Rights Watch said.

Article 91 of the code of military justice authorizes up to three years imprisonment for anyone who “commits … outrages against the flag or the army, offenses against the dignity, reputation or morale of the army, or acts to undermine military discipline, obedience and due respect to superiors or criticizes the action of military hierarchy or the military officers, offending their dignity.”

Article 128 of the penal code criminalizes defamation of a civil servant and accusing the person of illegal acts without proof of their veracity.

Massoudi resigned his position as adviser to Marzouki after Tunisia extradited Al- Baghdadi al-Mahmoudi, Libya’s former prime minister, to Libya, on the decision of Hamadi Jrebali, the head of government. Massoudi told the media that Defense MinisterMustapha Zoubeidi and the head of the armed forces, General Rachid Ammar, were derelict in their duty by not informing Marzouki of the extradition in a timely manner. Marzouki strongly criticized the extradition, which he says was carried out without his knowledge.

Massoudi told Human Rights Watch that on August 17, as he was passing through customs at Tunis’s airport to fly to Paris, a customs officer informed him of a travel ban issued by a military tribunal. “I believe this ban and the charges brought against me were the result of my public criticism of the army’s role in the extradition of Al-Baghdadi al-Mahmoudi,” he said.

The charges brought against Massoudi by the military tribunal violate his right to free expression, protected under article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Tunisia is a party. In 2011 the United Nations Human Rights Committee released guidance to states parties on their obligations in relation to free speech under article 19, and emphasised that the value placed by the ICCPR upon uninhibited expression “in circumstances of public debate concerning public figures in the political domain and public institutions” is particularly high.

The committee expressed concern regarding laws on such matters as disrespect for authority,disrespect for flags and symbols, and the protection of the honor of public officials, and noted that states parties should not prohibit criticism of institutions, such as the army or the administration. To ensure robust freedom of expression, state officials and institutions should not be able to file defamation suits, or have such suits filed on their behalf, in response to criticism.

The Johannesburg Principles on National Security, Freedom of Expression, and Access to Information, which set out best practices in this area, states in Principle 7(b):

No one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation state or its symbols, government, agency or public official unless the criticism or insult was intended and likely to incite imminent violence.

Tunisia should abolish laws that criminalize defamation, and ensure that defamation is addressed in a proportionate manner through the civil law, Human Rights Watch said.

In addition to violations of freedom of expression, allowing Massoudi, a civilian, to be prosecuted before a military tribunal is a violation of the right to a fair trial and due process guarantees, Human Rights Watch said. Tunisian law grants broad jurisdiction to military courts over a variety of acts committed by civilians as well as military personnel.

After the ouster of former president Zine al-Abidin Ben Ali in January 2011, the interim government overhauled the military judicial system. Decree no. 69 of July 29, 2011, introduced many important reforms but did not reduce the jurisdiction of military courts and restrict it to military offenses committed by military personnel.

International human rights experts have consistently determined that trials of civilians before military tribunals violate the due process guarantees in article 14 of the ICCPR, which affirms that everyone has the right to be tried by a competent, independent, and impartial tribunal.

The Draft Principles Governing the Administration of Justice through Military Tribunals, an expert document submitted to the UN in 2006, states that: “Military courts should, in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure that civilians accused of a criminal offence of any nature are tried by civilian courts.”

The prohibition against trying civilians before military courts is particularly strong in the regional African system. The African Commission on Human and Peoples’ Rights, interpreting the African Charter on Human and Peoples’ Rights, has prohibited the trial of civilians in military courts. The Resolution on the Right to a Fair Trial and Legal Aid in Africa, noted that “[t]he purpose of Military Courts is to determining offences of a pure military nature committed by pure military personnel.” The African Commission further stated that military courts should “in no case try civilians.”

“Tunisia’s law should confine the jurisdiction of military courts to purely military offenses committed by members of the armed forces,” Goldstein said.