Welcoming a Hybrid Attempt at Justice for the Central African Republic

Originally published in The Huffington Post World Section on 15 July 2015, see: http://www.huffingtonpost.com/jesica-l-santos/welcoming-a-hybrid-at...

On 22 April 2015, the Transitional Council in the Central African Republic (CAR) adopted a law by majority to set up a hybrid judicial mechanism (a "Special Criminal Court" (SCC)) within its national judicial system to investigate and prosecute individuals responsible for war crimes and crimes against humanity in its territory since 2003. But while this development undoubtedly represents a step forward towards justice for victims at a time of transition, it is certainly not the first accountability attempt for such crimes given that the International Criminal Court (ICC) has already opened investigations in the country. And the question a lot of international observers may be asking is: does this SCC undermine the already-operating ICC in CAR or, rather, reinforce its efforts at the national level?

The newly-adopted law was welcomed by several human rights organizations and follows recent and concrete steps in the wider fight against impunity in CAR. For instance, it happened a year after the creation by Presidential decree in April 2014 of a Special Investigative Cell (CSEI) to investigate serious human rights violations in the country. And it followed as well the December 2014 recommendation of the International Commission of Inquiry on CAR (set up by the UN Security Council in 2013 to investigate international human rights and humanitarian laws violation and abuses since 1 January 2013) to establish an accountability mechanism in the form of a "fully international tribunal" or else risk the situation in CAR to "spiral into genocide". Two of its Commissioners, Fatimata M'Baye of Mauritania and Philip Alston of Australia, also announced then that a full list of perpetrators in the conflict would be submitted to the UN Secretary-General and potentially to other relevant agencies. Last but not least, as the CAR is a state party to the ICC, in February 2014, the Court's Prosecutor, Fatou Bensouda, announced the opening of a preliminary examination of crimes allegedly committed in the country since September 2012. After this, in May 2014, the CAR transitional government referred to the Prosecutor of the ICC the situation on its territory since 1 August 2012. This was the second referral received from the CAR after the December 2004 referral relating to the events of 2002-2003. Finally in September 2014, ICC Prosecutor announced she was opening a second investigation because there was a reasonable basis to believe that international crimes had been committed (by both the Seleka forces and the so-called Anti-balaka fighters) since 2012.

This new Special Criminal Court is therefore important mainly because the CAR government has the responsibility to provide justice to its citizens for the crimes committed since the 2003 coup d' état against president Ange-Félix Patassé, a time when the Constitution was suspended, the Parliament was dissolved, and massive human rights abuses were committed. The SCC is also important because, to date, the national judicial system has shown not to have the required capacity and expertise to investigate and prosecute the very complex crimes that took place in the country (including murder, looting and wide-scale burning of villages, extra-judicial executions, enforced disappearances, torture and arbitrary arrest and detention), and which, according to UN and FIDH estimates left nearly 190,000 asylum-seekers, 3,000 dead, thousands of wounded, hundreds of victims of sexual crimes and more than a million displaced persons. So, the SCC's creation shows the political willingness to put an end to the impunity that has reigned in the CAR for some decades now.

Specifically, the SCC will be integrated in the Central African judicial system for five years (and its mandate would then be renewable) and will apply the law and criminal procedure of the CAR. It will also focus exclusively on the most serious crimes.

Being a hybrid judicial mechanism, the SCC will be composed of both national and international judges, with the former being the majority (14). It will also have an international prosecutor but its president will be a Central African one. This model offers capacity building through the exchange of experiences between international and national experts that strengthens the national system of justice, deteriorated over the years due to the conflict the country has experienced. Aside from benefitting from the added human resources to undertake complex cases, the country would also likely benefit from material resources that would otherwise not be available for accountability efforts. Although it has not been yet disclosed how exactly the SCC will be funded, and this has often been a problem with most hybrid institutions.

In terms of what needs to happen next, the law establishing the SCC must now be enacted by the head of state of the transition. If, and when it does, the SCC will be set up in stages, meaning that the Office of the Special Prosecutor, the Chambre d'Instruction and the Chambre d'Accusation Spéciale will be established first, followed by the Trial Chamber and the Appeals Chamber.

The establishment of the SCC is unprecedented in recent years in that the world will now have a hybrid tribunal working in a country where the ICC has already opened investigations. A lot of things can go wrong with the SCC, including political interference through the way it has been established and will be staffed, inadequate funding, and competition for cases with the ICC. However, I am of the view that with proper national and international political and logistical support, a strong statute that provides the normative guarantees for its independence and for fair trials, clarity on the respective roles between the SCC and the ICC, the correct implementation of the complementarity principle under the Rome Statute, and useful cooperation between the two Courts, an interesting model may emerge. Perhaps even a model worth emulating elsewhere moving forward with an ICC already overstretched and several perpetrators of different ranks usually involved in the crimes under the ICC's jurisdiction. I believe that if these conditions are met, the ICC and the SCC can really complement each other and, in so doing, strengthen accountability for international crimes.

Thus, we, for the sake of victims, must all hope that the establishment of the Special Criminal Court really ends up increasing the opportunities for justice without prejudice to the competence of the ICC, as opposed to obstructing the efficiency of the existing ICC investigations and casting a doubt on the legitimacy of the domestic proceedings that may be open through the SCC.

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