Progress and challenges in establishing the Special Criminal Court in the Central African Republic

It has been a long, slow process, but gradually the Special Criminal Court in the Central African Republic (SCC), a “hybrid” tribunal that has jurisdiction over grave human rights violations and serious violations of international humanitarian law committed since 2003, is starting to take shape. In a country where there are systematic weaknesses with the justice system, a deep mistrust of the national courts, and where the suspected perpetrators of crimes from both sides live openly in the community with impunity, this court is the last resort for many.

The SCC, established by law in June 2015, will be entirely within the national legal system, but it will have both national and international judges and staff and it is being heavily supported by the peacekeeping mission in CAR (MINUSCA) and UNDP. With an initial mandate of 5 years, the SCC will be developed in phases. The immediate focus is on developing the infrastructure and capacity to begin investigations.

Good progress in this regard is being made:

• Tousssaint Muntazini Mukimapa, a former military prosecutor in the DRC, was named as the Special Prosecutor, in February 2017, and several other national and international staff and judges have been recruited.
• The building allocated for the court (previously the Tribunal de Grande Instance) is being renovated. 
• Consultants have been engaged to draft the Rules of Procedure and Evidence, which will then be the subject of consultations.  
• A strategy on witness and victim protection both for the SCC, and for the national system more broadly, has been developed.

There are also efforts underway to develop an outreach strategy, and preliminary outreach sessions have already taken place with civil society. Moreover, the OHCHR issued a mapping report in May 2017 providing a comprehensive account of the crimes under international law committed from 2003-2015 that will be of critical importance in the Special Prosecutor’s process of developing a prosecutorial strategy, given the vast scale of the crimes committed and the need to prioritize amongst them.  

However, much effort will be needed to pull these various initiatives together to operationalize the SCC and many challenges remain.  Only US$5 million of the US$7 million required for the first 14 months of the court have been obtained from donors including the US, France and the Netherlands as well as from MINUSCA, and there appears to be few commitments to funding the SCC beyond this initial period.  Funded solely by voluntary contributions, it is difficult to see how the SCC will avoid ongoing financial crises similar to those that destabilised and undermined  the work of the Special Court for Sierra Leone and to this day affect the work of the Extraordinary Chambers in the Courts of Cambodia.

The SCC also faces conducting investigations and pursuing arrests in a country that continues to be plagued with violence and instability, and where large parts of the territory are still controlled by armed groups. In a deeply divided society, outreach will be essential but incredibly challenging, particularly with very limited resources.  Given the lack of public understanding and trust of the justice system, it will be difficult to reach areas outside of Bangui, particularly in the east of the country where the security situation is currently dire.

The SCC may also have difficulty attracting enough sufficiently qualified national and international staff. Although extensive training is planned, the lack of capacity of national staff, particularly in relation to investigating and prosecuting complex international crimes, may prove problematic.  Despite commitments to ensure that judges and staff reflect a gender balance and that national judges represent different geographical areas and religious communities, the first round of recruitment has not been very successful on either front.  To some extent, this is reflective of the limited representation of women and Muslims in the judiciary/legal profession in CAR. Nonetheless, addressing this imbalance will be essential to ensure the fairness – and the perception of fairness – of the proceedings.  The court must also ensure that the rights of the defence are respected and that an effective system of legal aid is put in place.

The creation of the SCC marks the first time that a hybrid court will work in a country where ICC investigations are also underway, which may represent an important innovation particularly if there is effective coordination between the ICC and SCC. The law establishing the court provides that if the Prosecutor of the ICC is “seized of a case, then the SCC will recognize the primacy of the ICC and will not pursue the case”, in what some have called “reverse complementarity”. However, critics have questioned whether this provision can be reconciled with the complementarity regime in the ICC Statute.

Despite these challenges, the court is sorely needed.  Violence resulting in human rights abuses and crimes under international law, including attacks on MINUSCA peacekeepers has continued, increasing in recent months.  There have also been suggestions that an initiative for negotiation with armed groups spearheaded by the AU and ECCAS might offer amnesties to members of armed groups which would deny justice to victims (although this is not reflected in a recent roadmap for this process). A  peace agreement signed in June 2017 under the aegis of Sant’Egidio, puts emphasis on the possibility of pardons and on negotiations for the lifting of sanctions, as well as seemingly prioritizing truth and reconciliation over justice.  These initiatives appear to run counter to the spirit of the Bangui Forum on National Reconciliation held in 2015, which strongly rejected the possibility of any amnesties.  In this context, it is more important than ever that the SCC commences its investigations, and begins to make inroads in the fight against impunity in CAR without delay.

The SCC is not the only hybrid tribunal to be proposed in recent years, after a lull in the development of such courts after the establishment of the SCSL and ECCC well over a decade ago. A Hybrid Court for South Sudan has been mandated in a 2015 peace agreement, and hybrid tribunals have also been proposed for Burundi and Eritrea.  Lessons have been learnt since the “first wave” of hybrid tribunals – no shiny new buildings will be constructed in CAR as they were at the SCSL, and careful efforts are being made to ensure that the SCC will help in rebuilding the justice system in CAR as a whole.

Will the SCC succeed?  It remains to be seen, but for the majority of those who have suffered from the crimes committed particularly during the recent conflict, this court holds out the best hope they have for accountability.

For more information, see Amnesty International’s January 2017 report The long wait for justice: Accountability in the Central African Republic.

This article first appeared on Amnesty International's new website Human Rights in International Justice. Check it out at https://hrij.amnesty.nl