The Special Criminal Court in the Central African Republic

On June 3, 2015, Catherine Samba-Panza, the then transitional president of the Central African Republic (CAR), promulgated organic law 15/003 establishing the Special Criminal Court (SCC).[1] A hybrid tribunal integrated into the Central African justice system, the SCC will employ international and national staff and apply a mix of Central African and international law. In June 2017, two years after formally being created, several of the tribunal’s magistrates, including the special prosecutor, were finally sworn in.[2] The SCC is expected to launch investigations in early 2018, with trials tentatively scheduled to begin later in the year.

The Special Criminal Court is one of several hybrid tribunals, from Kosovo and Sri Lanka to Chad and South Sudan, established or proposed in recent years.[3] This Insight analyzes the SCC’s legal and institutional framework, in particular its legal basis and jurisdiction, the mixed composition of its staff, and its relationship to the United Nations and the International Criminal Court (ICC). In the conclusion, it returns to the significance of hybrid tribunals for the evolving field of international criminal justice.

Historical and Geopolitical Context

A landlocked country in the heart of Africa, CAR has a long history of coups d’état and failed transitions. The origins of the SCC lie in the 2012–2014 conflict between the predominantly Muslim Séléka rebels and Christian vigilante groups known as the anti-balaka. In December 2013, amidst warnings of an impending genocide, French troops intervened in their former colony.[4] In April 2014, the UN Security Council created a peacekeeping mission to support a new technocratic transitional government in CAR.[5]

In August 2014, the transitional authorities signed a memorandum of understanding with the UN, pledging to bring into existence “a special criminal court.”[6] In April 2015, the transitional Parliament adopted legislation to that effect, and in May 2015 the Constitutional Court validated the constitutionality of the law establishing the SCC.[7] Renewed violence in late 2015, 2016, and throughout 2017, coupled with bureaucratic wrangling between the UN and the CAR authorities, has slowed down the process of establishing the SCC. However, the recruitment of several international and Central African magistrates in recent months has given renewed impetus to the project. Published in May 2017, a UN report cataloging 620 incidents amounting to potential crimes within the SCC’s mandate is expected to guide the new special prosecutor in his work.[8]

Legal Basis and Hybridity

Under the 2015 organic law, the SCC is a “national jurisdiction” operating within the Central African justice system.[9] It will apply extant national penal legislation in the first place, supplemented by substantive and procedural international norms to plug loopholes in Central African law, to avoid interpretive discrepancies, and to prevent incompatibilities between national and international norms.[10]

Composed of international and national staff, the SCC will have four organs: the Court itself, split into four judicial chambers; the Registry; the Office of the Special Prosecutor; and a special unit of the judicial police. The Court’s judicial chambers will comprise a pre-trial investigation chamber, divided into three pre-investigation units; one special indictment chamber; a trial chamber, divided into three trial units; and an appeals chamber.[11] Although the organic law also provides for a special unit of defense and victims’ attorneys and the possibility of legal aid for defendants and victims, details of these arrangements have been left to the Rules of Procedure and Evidence, still under discussion at the time of writing.[12]

The relationship between national and international staff is inherently contentious in hybrid tribunals. Much of the 2015 organic law regulates the “balance of power” between Central African and national magistrates.[13] Though Central Africans are in the numerical majority, the most important positions in the SCC are reserved for foreign staff. For example, the special prosecutor, Toussaint Muntazini, is a military prosecutor from the Democratic Republic of Congo.[14] While the four judicial chambers will be presided by Central African magistrates, both the special indictment and appeals chambers will have two international judges and only one Central African judge, ensuring that international staff have the decisive vote in reviewing contentious decisions.[15]

Jurisdiction and Criminal Responsibility

The SCC’s subject-matter jurisdiction is broad. According to the organic law, the SCC “is authorized to investigate, prosecute and try serious violations of human rights and serious violations of international humanitarian law . . . in particular the crime of genocide, crimes against humanity, and war crimes.”[16] Two issues deserve attention. First, the Special prosecutor could bring charges that are not usually associated with international criminal law, for instance violations of economic, social, and cultural rights.[17] Second, the tribunal’s jurisdiction also covers violations that do not have to meet the contextual requirements of international crimes, for instance isolated acts of rape involving individual perpetrators/victims rather than rape as part of a widespread and systematic attack (and hence a crime against humanity). In light of the large number of potential cases, the special prosecutor is expected to develop a prosecutorial strategy focused on specific categories of crimes according to pre-established and transparent criteria.[18]

The SCC’s temporal jurisdiction extends back to January 1, 2003.[19] This date was chosen to allow the special prosecutor to investigate crimes committed during the reign of Francois Bozizé, the president of CAR from 2003–2013.[20] Although the special prosecutor is likely to focus on the inter-communal violence from late 2012 to mid-2014, the SCC’s jurisdiction is temporally unbounded, meaning it also shares jurisdiction with ordinary courts over ongoing violations in CAR (more on this below). The SCC is expected to operate for a renewable term of five years.[21]

The organic law domesticates the Rome Statute’s rules on individual criminal responsibility and superior responsibility, as these had not been incorporated into the 2010 Penal Code and Code of Penal Procedure.[22] If the special prosecutor brings charges for crimes committed before 2010, such cases may raise questions about the scope of the non-retroactivity principle in international criminal law. Article 56 of the organic law states that it “shall apply equally to all persons without any distinction based on official capacity.”[23] However, unresolved questions about the relationship between constitutional immunities for senior CAR officials and the SCC could shield a narrow group of suspects from criminal responsibility (as a national court integrated into the Central African legal order, the SCC must defer to the new Constitution, adopted in March 2016, including its immunity provisions).[24] The SCC is required to impose punishments as defined by Central African law, but the organic law expressly excludes the death penalty.[25]

Relationship to the UN, Foreign Donors, and the ICC

From a formalist legal perspective, the SCC is a national tribunal fully integrated into the CAR judiciary. In practice, however, the UN and the international community have been instrumental in bringing the SCC into being. The UN’s peacekeeping mission in CAR, known by its French acronym MINUSCA, and the UN Development Programme had an outsized influence in drafting what would become the organic law. Since then, international actors and foreign donors have provided vital logistical, technical and financial support to “operationalize” the SCC.[26]

The SCC’s budget will be funded through voluntary contributions, despite concerns about the unreliable nature of such funding. At the time of writing, the international community had pledged funding for only the first fourteen months of the SCC’s five-year budget.[27] The Central African authorities were initially expected to provide infrastructure, but the total collapse of state institutions in CAR has forced foreign donors to step in and refurbish existing buildings to host the SCC. For the time being, the already appointed SCC staff work out of makeshift offices.[28]

The ICC, which has opened two investigations in CAR since 2007 (CAR I and II), will operate alongside the SCC and the ordinary courts. This marks the first time that a hybrid tribunal and the ICC will investigate crimes in the same country. To date, the ICC has had little impact in CAR, prosecuting just one foreign national (although further investigations are currently underway). The organic law, which regulates the SCC’s jurisdictional relationship to both the ICC and ordinary Central African courts, gives the SCC primacy over the latter. This is uncontroversial. The exact procedure is still under discussion, but the special prosecutor will be able to request national magistrates to refer cases to the SCC.[29] More problematic is Article 37 of the organic law, which purports to give the ICC jurisdictional primacy in CAR. In trying to deprive the SCC of priority to prosecute cases, the organic law violates the Rome Statute’s rules on complementarity.[30] Despite this provision, the special prosecutor and the ICC Prosecutor have initiated talks aimed at consensually distributing cases between the SCC and the ICC.

Conclusion

The SCC faces an uncertain future. Attacks on civilians and UN peacekeepers have increased in the last twelve months amidst a deteriorating security situation in many parts of the country.[31] To his credit, Faustin Archange Touadéra, elected president in early 2016, has resisted calls for a general amnesty. However, the government’s lack of control over 60 percent of its territory is likely to affect the SCC’s ability to deliver justice.[32]

The problem of impunity in CAR has defied resolution for many years. Present in the country for over a decade, the ICC has prosecuted just one individual. More importantly, despite its policy of positive complementarity, the ICC has been unable to catalyze prosecutions within the ordinary justice system. In that sense, the creation of the SCC was a pragmatic recognition that no trials were taking place in CAR’s civilian and military courts.[33] Operating alongside the ICC, the SCC symbolizes the promise that hybrid tribunals can overcome the shortcomings of accountability processes revolving around the ICC and purely national prosecutions.

About the Author: Patryk I. Labuda is a Ph.D. candidate in international law at the Graduate Institute of International and Development Studies in Geneva.