The Need for Accountability in the Central African Republic: The Establishment of a Hybrid Tribunal

September 23rd, 2015

By Rebecka Buchanan – Research Assistant

Pursuant to UN Security Council Resolution 2127 (2013), the Secretary General established an International Commission of Inquiry to investigate international human rights and humanitarian law violations committed in the Central African Republic (CAR) since January 2013. In January 2015 the Commission made a recommendation that an international tribunal should be established to investigate and prosecute war crimes committed in the CAR.[1] In April 2015 a draft law was adopted by the CAR National Transitional Council to establish a Special Criminal Court (SCC) to investigate and prosecute those responsible for war crimes and crimes against humanity in the Central African Republic since 2003.[2] The new law provides for cooperation with the International Criminal Court (ICC), which opened its second investigation in the CAR in 2014 following a referral by the CAR authorities to investigate war crimes and crimes against humanity committed since 2012.[3] This is the first time that a hybrid tribunal has been established whilst a situation is being investigated by the ICC, therefore this article will assess whether the two institutions may operate in cooperation and what this means for the ICC’s reputation.

Central African Republic Authorities’ Referral to the ICC

On 7 January 2005 the authorities of the CAR, in accordance with Article 14 of the Rome Statute, referred the situation of crimes committed in the territory of the CAR since July 2002 to the ICC. This was the third self-referral by a state party to the ICC, following Uganda and the Democratic Republic of Congo. The Prosecutor of the ICC opened two investigations, in May 2007 and September 2014, with respect to atrocities allegedly committed in the CAR. There have been five indicted individuals by the Court, including Jean-Pierre Bemba Gombo whose trial has concluded and a judgement is pending. There are four other indicted individuals, in addition to Bemba, whose trials are due to commence late September 2015 for suspected bribing of witnesses and forging evidence in the Bemba trial. [4]

The Special Criminal Court

The SCC will be a hybrid tribunal made up of 27 national and international judges serving renewable five-year terms. The panel will consist of 14 CAR judges and 13 international. Once the acting President of the CAR, Samba Panza, enacts the law the process of investigations may begin. The establishment of the SCC will be in stages starting with the Office of the Special Prosecutor, followed by the Chambre d’Instruction and the Chambre d’Accusation Speciale. Thereafter the Trial Chamber and Appeals Chamber will be established.[5]

The UN peacekeeping force in the CAR, The United Nations Multidimensional Integrated Stabilisation Mission in the Central African (MINUSCA), will assist the SCC with logistics, investigations and arrests.[6] With the help of MINUSCA in arresting accused individuals, the court may have more likelihood of surrendering indicted individuals to the ICC for prosecutions. This is because one of the main difficulties that the ICC faces is a lack of enforcement, with the Court relying on member states to arrest and surrender indicted individuals to the Court, which they do not always comply with.

One important issue with the establishment of the SCC is funding. CAR is a desperately impoverished state that will be unable to fund the tribunal, however international funding may open the hybrid tribunal up to political manipulation, which could reduce the court’s legitimacy in the eyes of the CAR.[7] It is speculated that the UN will fund the SCC through MINUSCA, which will provide financial and logistical support.[8] Assistance from MINUSCA would greatly increase the court’s ability to bring those most responsible to justice.

What does the establishment of the SCC mean for the ICC?

The SCC has huge precedential value for the simultaneous investigation of the same situation by a hybrid institution and the ICC. The ICC is the first permanent court of its kind and it was thought that it would end the need for ad hoc international criminal courts and tribunals. However such a reality has not been achieved. There have been ad hoc or hybrid tribunals established in recent years, including the Special Tribunal for Lebanon, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia. However the SCC is unique: it will complement the work of the ICC and does not intend to act as an alternative model of justice. The SCC will not compete with the ICC for cases; those persons ‘most responsible’ for serious violations of international criminal law will be sent to the ICC for prosecution.[9]

The Prosecutor of the ICC determined in 2007 and 2014, in accordance with Article 53 of the Rome Statute, that there is a reasonable basis to proceed with an investigation of crimes committed in the CAR. As Article 1 of the Rome Statute provides that the Court’s jurisdiction shall be complementary to that of national criminal jurisdictions, and Article 5 provides that jurisdiction shall be limited to the most serious crimes of concern to the international community; the work of the SCC and the ICC may go hand in hand. The SCC will have the ability to try a greater number of alleged perpetrators and those of a lower rank; while the ICC’s jurisdiction will remain bound to try those perpetrators alleged of committing the most serious international crimes. The ICC will be better suited to handle the most controversial cases that the SCC would not be suited to try because of its close proximity to the population of the CAR. In a situation where the CAR would be unwilling or unable to carry out any investigation or prosecution, under Article 17 of the Rome Statute, the ICC will be empowered to intervene.[10]

Despite the complementary work of the SCC, hybrid tribunals provide a crucial alternative to justice where the ICC cannot exercise jurisdiction or where affected populations do not view the ICC as a legitimate institution to prosecute accused individuals. In countries where there is tension regarding international investigations and prosecutions, hybrid tribunals represent a means of balancing state sovereignty and the need for accountability.[11] The SCC therefore, and the proposed hybrid tribunal for Sudan, will be watched closely by the international community and may act as a test case for the future of international criminal justice. If a trend towards national or hybrid investigations and prosecutions emerges, hybrid tribunals may be the new model of international criminal justice.

Concluding Remarks

The CAR authorities bestowed upon the ICC jurisdiction to investigate and prosecute war crimes and crimes against humanity committed across the country in 2005, however this year the CAR National Transitional Council established a tribunal to complement the current work of the ICC in bringing those responsible to justice. This is the first time a national institution has been established to work alongside the ICC. Although the SCC has been established to satisfy the need for accountability in CAR, it nevertheless acts as another step back for the legitimacy of the ICC in Africa. It remains to be seen how the two courts will work in cooperation, specifically how the ICC will share evidence and whether high ranking accused individuals will be surrendered to the ICC. However the Parliamentarians for Global Action believe that the complementary work of the ICC and the SCC will enable stronger cooperation between CAR national authorities and the ICC, and will serve as an example to be followed in the international fight against impunity.[12]

[1] International Justice Resource Centre, ‘Central African Republic Votes to Create New Hybrid Tribunal’, 21 May 2015: http://www.ijrcenter.org/2015/05/21/central-african-republic-votes-to-create-new-hybrid-tribunal/

[2] FIDH, ‘New Special Criminal Court: A Key Step Towards Justice’, 24 April 2015: https://www.fidh.org/International-Federation-for-Human-Rights/Africa/central-african-republic/new-special-criminal-court-a-key-step-toward-justice

[3] International Justice Resource Centre, ‘Central African Republic Votes to Create New Hybrid Tribunal’, 21 May 2015: http://www.ijrcenter.org/2015/05/21/central-african-republic-votes-to-create-new-hybrid-tribunal/

[4] Coalition for the International Criminal Court, Central African Republic: http://www.iccnow.org/?mod=car

[5] United Nations Office of Legal Affairs, ‘Accountability for International Crimes in Africa’, Mr. Miguel de Serpa Soares, 14 March 2015: http://legal.un.org/ola/media/info_from_lc/mss/speeches/MSS_Remarks_FLO_Workshop_Entebbe-6-Mar-2015.pdf

[6] International Justice Resource Centre, ‘Central African Republic Votes to Create New Hybrid Tribunal’, 21 May 2015: http://www.ijrcenter.org/2015/05/21/central-african-republic-votes-to-create-new-hybrid-tribunal/

[7] Mark Kersten, ‘Why Central African Republic’s Hybrid Tribunal could be a Game-Changer’, Justice in Conflict, 14 May 2015: http://justiceinconflict.org/2015/05/14/why-central-african-republics-hybrid-tribunal-could-be-a-game-changer/

[8] Sophie Van Leeuwen, ‘CAR Hybrid Court: An Important Test Case’, 7 May 2015, Justice Hub: https://justicehub.org/article/car-hybrid-court-important-test-case

[9] Mark Kersten, ‘Why Central African Republic’s Hybrid Tribunal could be a Game-Changer’, Justice in Conflict, 14 May 2015: http://justiceinconflict.org/2015/05/14/why-central-african-republics-hybrid-tribunal-could-be-a-game-changer/

[10] United Nations Security Council, Letter Dated 19 December 2014 from the Secretary-General addressed to the President of the Security Council, 22 December 2014, S/2014/928, paras.70-71.

[11] Patryk Labuda, ‘The Mirage of Hybrid Justice in Africa?’, Opinio Juris, 1 March 2015: http://opiniojuris.org/2015/03/01/guest-post-the-mirage-of-hybrid-justice-in-africa/

[12] PGA, ‘PGA welcomes the adoption by the Central African Parliament of the law establishing a Special Criminal Court in the Central African Republic’: http://www.pgaction.org/news/pga-welcomes-law-establishing-special-court-car.html