The Central African Republic (CAR) is still torn by militia violence and is struggling to rebuild after the 2012-2014 civil war, which left some 5,000 people dead and turned nearly 900, 000 Central Africans into refugees and displaced people. In a country where the government controls only a small part of the territory, justice is trying to find a way forward. The Special Criminal Court, created in 2015, now has its Prosecutor and several judges, while the International Criminal Court has since 2014 been investigating crimes committed during the CAR civil war.
“The attack against peacekeepers of MINUSCA (UN mission in the country) constitutes serious crimes,” declared Central African President Faustin Archange Touadera after the May 14 attack on a UN base in Bangassou, in the southeast of the country. Reacting to this new violence, which left at least six UN peacekeepers and 30 civilians dead, Touadera promised that the perpetrators would “answer for their acts before national and international justice”. Since 2015, the CAR has three types of courts to prosecute suspected perpetrators of war crimes and crimes against humanity. In 2014, at the height of fighting between Seleka and Anti-balaka militia, transitional president Catherine Samba-Panza asked the International Criminal Court (ICC) to intervene. After three years of investigations, no suspect is yet been detained at the ICC prison in The Hague. But as well as the ICC investigations, the transitional government in Bangui also decided in spring 2015 to set up a Special Criminal Court with the UN’s agreement. This court is gradually being set up. In the meantime, the national judicial authorities have to deal with many cases against imprisoned militiamen, but are desperately short of both human and financial resources. Florent Geel, head of the Africa bureau at the International Federation for Human Rights (FIDH), nevertheless thinks that “overall, things are moving forward, especially given the extent of the CAR’s problems”. In February, Congolese colonel Toussaint Mutazini Mukimapa was appointed Prosecutor of the CAR Special Court, which will be composed of national and international judges. Several have already been appointed. Experts are working on the rules of procedure and evidence, which should soon be ready and allow perpetrators of crimes committed in the CAR since 2003 to be tried. MINUSCA and the UNDP should also soon complete their “mapping”, a detailed inventory of crimes committed in the country which will provide a basis for the new prosecutor.
What use is the ICC?
In this unprecedented context, the role of the ICC seems redundant to some. “What use is the ICC if we need a hybrid court to complement it? That was a question that came up often in the negotiations on the law setting up the Special Court,” says Patryk Labuda of the Geneva Academy of International Humanitarian Law and Human Rights. The idea of the Special Court was supported by the US and France but it was not always clear that it would succeed. “In the beginning, the UN did not want the Special Court,” says Florent Geel. The European Union, whose members fund a big part of the ICC budget, dragged its feet for a long time, preferring to concentrate on the rebuilding of national judicial institutions and training of police and magistrates. But Florent Geel thinks both the ICC and the Special Criminal Court have a role to play, and that the different initiatives allow the “re-establishment of a complementary judicial chain”. The ICC’s Office of the Prosecutor says the “different systems” of justice “are not exclusive but rather they are complementary”. “No single system can deal with all the cases,” it says, with a reminder that the ICC intervened at the request of the then-president, Catherine Samba-Panza. However, Patryk Labuda thinks the Special Court in some ways reflects “the ICC’s failure in the country over ten years, and highlights the international community’s weaknesses in fighting impunity in Africa”. Ten years ago, the ICC opened a first investigation in the CAR into crimes committed during the 2002/2003 war, which ended in a victory for François Bozizé’s rebels over the president at the time, Ange Félix Patassé. But the ICC only prosecuted one person – former Congolese Vice-President Jean-Pierre Bemba, who was marginal in the CAR’s successive crises. Bemba sent his militia to support Patassé, and was sentenced to 18 years in jail for crimes against humanity and war crime. According to the FIDH, which has continued to document the Central African crises, the main players responsible for destabilizing the country have been the same for 15 years, and have remained unpunished.
Sharing out the cases?
Who will have primacy to try cases? This is one of the quirks of the unprecedented setup. The ICC only intervenes as a last resort, if a country does not have the will or the means to conduct trials. But the Statute of the Special Court says it must send to the International Criminal Court any case that the ICC has decided to prosecute. “Instead of having discretionary power, the Special Court prosecutor must actually ask the ICC for permission before conducting any investigation,” explains Patryk Labuda. But even before the Special Court is in place, the cases have already been de facto shared out. A handful of top suspects are to be sent to the ICC, while the Special Court is likely to take up about 100 cases against mid-ranking suspects. The ICC will likely only take one or two cases from each side of the conflict – that of the Seleka, the mainly Muslim rebel coalition that took Bangui in March 2013, putting Michel Djotodia in power before being chased out by the French force Sangaris; and the Anti-balaka, a militia formed by people close to ex-president Bozizé, which fought back. When asked, the ICC Office of the Prosecutor said that some cases could be sent back to the Special Court or to national courts “if the ICC deems that other systems are better placed to investigate or prosecute”. Once the ICC has built its cases, will it let the Special Court conduct the trials? That might help prevent the potential pitfalls of a two-speed system. Whatever happens, the Central African authorities have always said they are willing to cooperate with the ICC, ruling out possible competition. “So long as the ICC does not try to widen investigations against the Anti-balaka, some of whom are close to the current government, there will be an entente cordiale between the Special Court, the ICC and the government,” predicts Patryk Labuda, “but the political situation could change rapidly and the ICC’s investigations become bothersome. In that case, the entente cordiale will turn into competition.”
Amnesty as a bargaining chip
One thing that is clear is that the two courts do not have the same means. For 2017, the ICC prosecutor has allocated a budget of over 6 million Euros for the CAR alone. The Special Court has 7.4 million dollars (6.6 million Euros) for its first 14 months including all its operations, as well as its investigations. The Special Court should obtain 25 million dollars (22.6 million Euros) for its first five years of operations. Florent Geel of the FIDH thinks the most important thing is not to create a “white elephant”. He thinks the setting up of the Special Court “shows there is a will and a need for justice”. That justice will be delivered in the country itself. But the CAR’s judicial system is very fragile. On May 10, Amnesty International launched a campaign against any amnesty, which the rebels are trying to obtain in exchange for disarmament. According to the Central African media, the President of Chad and the African Union are trying to convince Faustin Archange Touadéra in favour of amnesty.
