Patryk I. Labuda joins JiC for this post on the ongoing challenges of achieving justice and accountability for mass atrocities in the Central African Republic. Patryk is a Ph.D. Candidate in International Law at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. You can read Patryk’s previous contributions to Justice in Conflict here.
The Central African Republic (CAR) is the new international justice frontier. After a French-led intervention brought the country back from the brink of genocide in 2013, international efforts have focused on restoring law and order in what the International Crisis Group once called a ‘phantom state’. In recent weeks, attention has turned to the Special Criminal Court (SCC), a new hybrid tribunal tasked with breaking the cycles of violence that have plagued CAR since independence.
In April 2015, the Central African Parliament passed a landmark bill establishing the SCC, a hybrid tribunal led by a mix of Central African and international judges and prosecutors. The establishment of the SCC has run into myriad problems since then, but in the last few months the CAR authorities and the UN have gradually selected candidates for the tribunal’s key positions: in addition to five national and two international staff, on May 26 the tribunal’s chief prosecutor finally arrived in Bangui. A career military prosecutor from the Democratic Republic of Congo, Toussaint Muntazini will be tasked with launching the SCC’s investigations in the coming months.
It is safe to say that Special Prosecutor Muntazini faces a Herculean task. Fighting impunity in CAR was always going to be difficult, but his appointment coincides with a worrying surge in violence in many parts of CAR. Hundreds have been killed and thousands displaced in just the past few weeks. Particularly troubling is the fact that UN peacekeepers have been repeatedly targeted and have responded with force, raising the possibility of an active armed conflict between the UN and armed groups. Muntazini and his staff depend on the UN peacekeeping mission, known by its French acronym MINUSCA, for security and logistics, so the UN’s involvement in hostilities could create both operational and legitimacy challenges for the SCC. In the immediate term, Muntazini will also have to deal with more prosaic obstacles such as the unavailability of infrastructure and delays in establishing a special police unit.
Despite these and other challenges, a major step toward justice was taken last week. After months of investigations, MINUSCA released an eagerly awaited Mapping Report on serious crimes committed in CAR between 2003 and 2015. Although not a substitute for the Special Prosecutor’s investigations, the Report catalogs 620 incidents that could fall under the SCC’s jurisdiction, which – it must be emphasized – covers not just war crimes, crimes against humanity and genocide but also a wide range of serious violations of human rights and international humanitarian law.
Partly in response to the SCC’s broad subject-matter and temporal mandate (2003-present), the Office of the High Commissioner of Human Rights and international NGOs have encouraged Muntazini to announce a prosecutorial strategy explaining which types of violations will be prioritized and why. As is customary at such tribunals, there is broad agreement that the SCC should focus on those bearing the greatest responsibility. In practice, however, reconciling the expectations of victims, local actors and the international community will be a daunting task. Given the vast scale of criminality reflected in the Mapping Report, fighting impunity in CAR will necessarily have to be selective. Investigating and adjudicating complex crimes committed over the past fifteen years is likely to take (much) longer than the SCC’s (renewable) five-year mandate.
Long-term justice strategy
The real challenge facing the international community is how to translate the SCC’s successes into long-term gains. With a little luck, MINUSCA should be able to apprehend a few high-level suspects (some are already in the UN’s custody), and the SCC will then establish criminal responsibility in a handful of cases. But the SCC is a temporary fix by design. International donations have trickled in, despite the UN and the European Union’s reservations about a hybrid tribunal in CAR. But two concerns remain high on the international community’s agenda: what will be the SCC’s relationship to, on the one hand, the ordinary justice system and, on the other, the International Criminal Court (ICC)?
If the SCC is to have any long-term significance, it must leave a lasting legacy for the ordinary justice system. As noted by Florent Geel of the Federation Internationale de Droit de l’Homme, the tribunal cannot be a ‘white elephant’, providing lucrative employment to a few lucky international and national lawyers, but without impacting the lives of ordinary Central Africans. In that respect, the news from Bangui is encouraging: NGOs and the UN have devoted much attention to the ways in which the SCC can contribute to justice reform more generally. Although the SCC’s relationship to ordinary courts is somewhat vague in the law establishing the SCC, the Rules of Procedure and Evidence – currently under discussion – can plug certain gaps, for instance by establishing a national victim and witness protection program or by designing a referral mechanism with a view to promoting dynamic interactions between the SCC and domestic courts.
The role of the ICC is far less clear at this stage. Under complementarity, the ICC is expected to intervene as a court of last resort, when states are ‘unwilling or unable’ to exercise jurisdiction. Unfortunately, the law establishing the SCC purports to give the ICC jurisdictional primacy, which suggests that Fatou Bensouda is free to choose whom she wants to prosecute. As I explain in the most recent issue of the Journal of International Criminal Justice, this aspect of the SCC law violates international and, by extension, Central African law, and – if challenged – it should be deemed unlawful by the SCC or the Central African Constitutional Court. In accordance with Article 17 of the Rome Statute, Prosecutor Bensouda should defer to the SCC’s investigations and let domestic justice run its course, unless there is a compelling reason for the ICC to assert jurisdiction (see JICJ, p. 190-195).
This does not mean that there is no space for the ICC in CAR. On the contrary – Prosecutor Bensouda can respect her complementarity mandate and still play a vital role as a backstop to the SCC. Although Prosecutor Muntazini has prosecutorial priority vis-à-vis the ICC, jurisdictional hurdles could limit his case selection. A general amnesty proposed by the African Union is unlikely to prevent Muntazini from bringing charges, at least not for the most serious crimes, but certain government officials could remain beyond his reach. As a national tribunal integrated into the CAR judiciary, the SCC is constitutionally barred from prosecuting senior Central African politicians who enjoy immunity under the 2015 Constitution. Crucially however, this jurisdictional limitation does not apply to the ICC: domestic immunities do not bar prosecution under Article 27 of the Rome Statute. As in other situations, the real question seems to be whether the ICC is willing to jeopardize cooperation by targeting senior government officials. It is no coincidence that the Mapping Report, noting the risk of jurisdictional overlap (p. 320-321), urges the ICC and the SCC to coordinate their activities.
What comes next?
The SCC has come a long way since 2015, and the Mapping Report is yet another milestone in this remarkable experiment. A hybrid court established with the support of a peacekeeping mission and operating alongside the ICC is a first for international criminal justice. To be sure, significant challenges remain, but it is now up to the various international and national actors in CAR to forge a holistic prosecutorial strategy and to continue building momentum for justice.