Central African Republic Votes to Create New Hybrid Tribunal

Fatimata M’Baye and Philip Alston, members of the International Commission of Inquiry on the CAR
Credit: UN Photo/Loey Felipe

On April 22, 2015, the Central African Republic’s transitional parliament voted to adopt a law to create a Special Criminal Court to investigate and prosecute war crimes and crimes against humanity that have been committed in the Central African Republic since 2003. In order for the Special Criminal Court to now be established, its acting president, Catherine Samba-Panza, must enact this law. [FIDH; Jurist]

History of Conflict in the Central African Republic

The Central African Republic has a history of conflict and political instability, which has led to the deaths and displacement of thousands of people. While there are differing figures, according to UN estimates, since 2013, approximately 440,000 people have been internally displaced, 190,000 people have sought asylum outside of the State, and more than 36,000 are within the State and waiting to find asylum elsewhere. [UN Press Release]

In March of 2013, the Seleka rebel alliance seized Bangui, the capital of the Central African Republic, and overthrew then President Bozizé. [The Guardian] During and after this coup, the Seleka committed human rights abuses including summary executions, rape, and torture. [Human Rights Watch: Abuses] The rebel leader Michel Djotodia went on to suspend the constitution and dissolve the parliament after being elected by the national transitional council. [Al Jazeera: Djotodia; BBC] In January of 2014, Djotodia resigned after growing criticism over his inability to end the violence. The interim president, Catherine Samba-Panza, was elected by members of the national transitional council and sworn in on January 20, 2014. [Al Jazeera: Samba-Panza; The Guardian]

International Commission of Inquiry’s Recommendation to Create Tribunal

In December 2013, the Secretary General, at the request of the UN Security Council, established an International Commission of Inquiry into the situation in the CAR to investigate the violations of international humanitarian and human rights law that had been committed since January 2013. In January 2015, after having conducted this inquiry, the Commission made a recommendation, directed at the CAR government, the Security Council, the Secretary-General, and the African Union, that an international tribunal should be established to investigate and prosecute war crimes committed in the Central African Republic. [UN Press Release] The Commission’s Final Report in December 2014 explains the difficulties that it faced in carrying out its mandate because of high security risks. It also notes that the estimated number of people killed during the two years of its mandate ranged from 3,000 to 6,000, but that in reality, the numbers were higher.

Among other things, the report calls for the end of impunity that perpetrators of serious violations of human rights and humanitarian law have enjoyed. The report also notes that while the Commission did not find the elements to demonstrate intent to commit genocide, the crimes that were committed were extremely serious and the risk that grave crimes, including genocide, could be committed in the future still exists. UN Security Council, The International Commission of Inquiry on the Central African Republic Final Report, S/2014/928, 22 December 2014.

In addition to this recommendation made by the International Commission of Inquiry, multiple organizations, including Bureau Information des Droits de l’Homme, Enfants Sans Frontières, Human Rights Watch, and Fédération internationale des ligues des droits de l’Homme, advocated for the development of a Special Criminal Court. [Human Rights Watch: Group Letter] Once the law to create the court was passed, these organizations expressed strong support for its establishment: “By approving the Special Criminal Court, National Transition Council members said that ‘enough is enough’ with impunity and showed that they firmly stand on the side of justice for the victims who lost their lives or suffered atrocities.” [FIDH]

ICC Involvement

The government of the Central African Republic first referred the State’s situation to the International Criminal Court (ICC) in 2004 about the events that occurred there between 2002 and 2003. The ICC then decided to open an investigation in 2007, confirming that the national justice system did not have the capacity to investigate and prosecute the alleged crimes. [ICC Press Release] The ICC opened its second investigation in the Central African Republic in September 2014 after CAR authorities made a referral in May 2014 to examine war crimes and crimes against humanity allegedly committed since 2012. [UN News]

Special Criminal Court

The Special Criminal Court will be composed of 27 domestic and international judges serving renewable five-year terms. It will have a Central African chief judge and an international special prosecutor. The judicial police, investigative judges, and office of the prosecutor will begin the process of investigations once acting president Samba-Panza enacts the law. It is likely the UN peacekeeping force in the Central African Republic (MINUSCA) will assist the new court with support for logistics, investigations, arrests, and international personnel nominations. [FIDH; Justice in Conflict]

This Special Criminal Court is particularly significant because it could develop new precedents for shared responsibility between domestic and international institutions in prosecuting international crimes. This is the first time a hybrid court and the ICC are conducting investigations simultaneously within the same country. Unlike other ad hoc tribunals, the Special Criminal Court is set up to complement the work of the ICC. The Central African Republic is accepting the ICC’s jurisdiction and planning to work in conjunction with it. Those who are considered to be the most responsible for committing war crimes and crimes against humanity and are indicted by the ICC will be sent to The Hague. [Justice in Conflict]

Moving forward, questions exist as to funding and how the relationship between the ICC and the Special Criminal Court will work to maximize the efficiency of both. It is also unclear how defense representation will work within the tribunal. Furthermore, organizations supporting the establishment of the Special Criminal Court note that questions remain regarding immunity. For example, a provision in the law stating that there should be no immunities before the court was removed by the national transitional council. On the other hand, the criminal code of the Central African Republic states that there can be no immunity from prosecution for certain crimes and similarly, immunities do not apply in the case of the ICC. [FIDH; Justice in Conflict]