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Special Criminal Court for CAR: A New Opportunity for Accountability?

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The Central African Republic (CAR) has a long history of authoritarian regimes, armed rebellion and military coups along with impunity for gross human rights violations. In December 2012, an insurgency of the Séléka (a loose alliance of predominantly Muslim militia groups) was launched to overthrow President Francois Bozizé. This marked the beginning of an armed conflict with religious dynamics between the Séléka and ‘self-defense’ militias called Anti-Balaka (predominantly Christians and Animists), resulting in severe and widespread violence. Since Séléka’s insurgency, thousands have been killed, hundreds of thousands were forced to leave their homes, and almost half a million people fled the country.

2016 started off with a largely peaceful election in February but as noted by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein, security deteriorated over the summer. Violence continues to be a daily reality in CAR. The assassination of the Head of armed forces and the attack on Evêché camp for IDPs, the Prefect’s office and the camp of the UN peacekeeping force in October 2016 are only a few of the recent violent incidents.

For the people of CAR to turn a new page, it is critical to address the entrenched culture of impunity, and hold perpetrators accountable for human rights violations and atrocity crimes. Past amnesty laws such as those adopted in 1996, 1997, and 2008 propagated a climate of impunity, which reportedly was one of the factors that triggered the latest conflict.

In June 2015, the CAR authorities created a new court within CAR’s national justice system. This Special Criminal Court (SCC) may pave the way towards justice. Yet to be operationalized, the court is tasked to investigate and prosecute violations of human rights and international humanitarian law committed since 2003. This means that its jurisdiction goes beyond crimes committed during the latest crisis, and will also cover crimes committed during the Bozizé regime. The court is not the first attempt to hold perpetrators accountable for crimes committed in CAR over the years. In 2004, the CAR government referred the situation to the International Criminal Court (ICC), which started to investigate crimes committed since July 2002. In May 2014, CAR’s leaders again asked the ICC to investigate crimes, this time covering crimes committed during the latest crisis starting in 2012.

The SCC is envisioned to bring a good mix of national and international aspects. It will for example be presided over by a national judge, staffed by national and foreign judges while an international prosecutor will lead the prosecutor’s office. Because the SCC is a court within the national legal system of CAR, the relationship between the SCC and ICC will be governed by the ICC’s complementarity principle, which gives primacy to the national jurisdiction. What is more, with the ICC only able to prosecute a handful of perpetrators, the bulk of prosecutions will need to be borne by national courts.

Operationalizing the SCC will be an enormous challenge. First, prior to the latest crisis the country had a dysfunctional system, with only 129 magistrates. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, reported in 2009 that “[i]n Bangui, the public prosecutor’s office has just two prosecutors for criminal cases. In Paoua, the justice system barely functions. It is composed of one magistrate, who is simultaneously president of the tribunal, prosecutor and investigative judge. Across the country, there are not enough buildings to house courtrooms and offices of judges and key personnel. Basic equipment is in short supply.” The latest crisis has damaged the judicial infrastructures even further. Second, the fragile security situation with militias in control of vast parts of the country and civilians at ongoing risk of atrocity crimes will make it difficult for the court to arrest suspects, execute investigations, or protect witnesses. Third, success of the court will largely depend on funds. It is unlikely that the CAR government will be able to fund the SCC. In fact, the Organic Law on the creation of the SCC states that the budget will be the responsibility of the international community. The court will rely on voluntary contributions of states which is a volatile funding structure as seen in the case of the “chronically underfunded” Special Court for Sierra Leone that faced significant challenges. Yet this innovative court may just be what CAR’s legal system needs. The hybrid system may not only provide for local and international legitimacy, but it also allows for the CAR judiciary to increase its own capacity. The SCC can thus help build up a legal system that can investigate and prosecute future human rights violators and can promote the rule of law. This will take time though, and the SCC ‘only’ has a five-year renewable mandate.

Justice and accountability are critical elements of lasting peace in CAR. However, these elements do not stand or fall with the newly established SCC. There are various other mechanisms that could provide some form of justice and accountability in addition to the SCC such as a justice, truth, reparations and reconciliation commission and a transitional justice mechanism. Both were called for by the National Forum of Bangui of 2015.

The SCC is promising and its model can have far-reaching implications for future prosecutions of atrocities. If the SCC is able to meet realistic expectations, it might set a precedent for future justice mechanisms to be used by individual states and the international community when addressing atrocities. However, it is evident that for the court to become a success it needs full support from the CAR government and the international community, both financially and politically.

As part of its work on the Responsibility to Protect and the prevention of mass atrocities, The Hague Institute and its partners aim to develop a new toolkit for policy-makers at the state level, in international organizations and on the ground in fragile and conflict-affects settings, covering among others legal tools.

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