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Special Criminal Court: A way forward for Central African Republic?

– By : Ritu Gambhir –

Conflict-ridden, the Central African Republic (“CAR”) is considered one of the worst countries in the world to live in. On human development and happiness indexes, CAR ranks last, well below countries like Syria.[1] Yet, as journalists Marcus Bleasdale and Peter Gwin said in a multimedia story in the National Geographic, most people are not aware that CAR is in the midst of a civil war.[2]  Nor are they conscious of how much Central Africans are suffering.  One in four people has been displaced at least once due to fighting and one in two needs humanitarian assistance to survive.[3]

From December 2015 to January 2017, I worked to advance human rights and the rule of law in CAR, in particular to ensure that rights of victims, witnesses and alleged perpetrators of human rights violations were respected in the course of efforts to combat impunity.  When I arrived in the capital Bangui in December 2015, the crisis was a slow-burning one.  Expectations were high that a new democratically elected government would prove to be a turning point toward a peaceful future for Central Africans.  When I left in January 2017, the government was struggling to stay afloat and the human rights situation was deteriorating.[4]

I returned to CAR in May 2017 for a field visit to discover that the conflict had spread.  In some places like Bangassou and Bria, the slow burn had become a raging fire.[5]  In a span of a few weeks, armed groups displaced at least 100,000 people, targeted scores of civilians and killed hundreds.  Attacks on peacekeepers were routine and several were killed or injured, premises of humanitarian organizations were looted, and their staff and beneficiaries harmed.[6]   The violence seemed to have no limits.[7]

One theory for the latest cycle of violence is that armed groups – and their backers – feared that the window for impunity was closing.[8] In May 2015, following a series of inclusive community consultations, the Bangui Forum on National Reconciliation was held.[9]  Hundreds of Central Africans participated on behalf of their communities and the recommendations emerging from the Bangui Forum included the rejection of amnesties for crimes against humanity, war crimes and genocide committed in CAR and support for establishing a Special Criminal Court (“SCC”) to try these crimes.[10]

In June 2015, the transitional government of CAR promulgated a law creating the SCC.[11]  The SCC is a hybrid justice mechanism – with national and international judges – and is mandated to address crimes resulting from serious violations of human rights law and international humanitarian law.  It is intended to complement rather than compete with the International Criminal Court, which has been conducting investigations in CAR with increasing intensity since 2014.[12]  At the end of May of this year, the Special Prosecutor of the SCC Toussaint Muntazini Mukimapa arrived in the capital Bangui, bringing the court one step closer to becoming operational.[13] In one of the Special Prosecutor’s first public statements, he is reported to have said he opposes amnesties for serious crimes.[14]

As well, the UN recently published a report mapping serious violations of human rights law and international humanitarian law committed in CAR between 2003 and 2015 (“mapping report”).[15]  The mapping report documents 620 incidents, some of which may amount to war crimes and crimes against humanity.  Although the mapping report is not a complete answer – it is not the product of a criminal investigation nor (with few exceptions) does it name names – it should assist the Special Prosecutor and his team in determining a prosecutorial strategy, including priority areas for further investigation.[16]

By early June, the pieces of the accountability puzzle were falling into place and it was looking like a real possibility that some intouchables could one day face jail time.  In a briefing to the UN Security Council on 12 June, the Assistant Secretary-General for Human Rights Andrew Gilmour expressed hope that building on the momentum of the mapping report, “some of the perpetrators of the most serious violations will be arrested in the near future.”[17]  Just over a week later, before the window for impunity could be closed, a door opened.

To draw armed groups into the peace process, the government had previously committed to Disarmament, Demobilization and Reintegration and Repatriation (“DDRR”).  Although all fourteen armed groups had signaled their willingness to participate, researcher Thierry Vircoulon said in an article in Le Monde that the government’s refusal to grant amnesties for serious crimes coupled with its reluctance to accept institutional forms of power sharing contributed to an impasse.[18]  The impasse also gave rise to parallel peace initiatives, including one by the African Union and Economic Community of Central African States, and one by the Community of Sant’ Egidio.[19]

On 20 June, the Community of Sant’ Egidio announced that it had brokered a political agreement for peace in the CAR between the government and thirteen armed groups who are referred to in the agreement as political-military groups.[20]  On the positive side, the agreement contains several commitments that should help ease the immediate suffering of population, in particular a cease-fire, though the cease-fire is proving difficult to enforce.[21]  Related undertakings include freedom of movement of people, non-governmental organizations and goods, and protection for humanitarian actors.

Although the peace agreement does not explicitly refer to amnesties for serious crimes, it contains a number of worrying provisions that could result in impunity.  While there is an obligatory nod to the recommendations of the Bangui Forum and the work of criminal justice mechanisms active in CAR, the emphasis is placed on pardons (both Presidential and in the context of traditional processes) and on the fast-tracking of a Truth, Justice and Reconciliation Commission, which is expected to complete its work in twelve months.  The agreement also calls for consultations on the lifting of sanctions imposed by UN Security Council against certain individuals, inclusion of leaders of political-military groups in DDRR and liberation of detained combatants.

If this is what remains on the table after the peace agreement, reconciliation for Central Africans will continue to be out of reach.[22]  The authors of the mapping report stressed that for communities in the country to be able to coexist peacefully, it is important to prosecute serious crimes “in which civilians were targeted on account of their religion and ethnicity.”[23]  This is because victimized communities tended “to collectivize responsibility by associating entire communities (Muslims or Christians) with those who perpetrated attacks”.[24]  Mechanisms such as the SCC can help to sever this connection by “address[ing] the responsibility of specific individuals for the most serious crimes committed.”[25]

Whether the SCC will deliver or disappoint will only become clear in the long term.  It faces a difficult road ahead: the unstable security situation makes investigations and arrests difficult; there is no system to protect victims and witnesses; and the penal chain is only partially functional.[26]  The SCC also requires more financial, technical and logistic support from the UN and international donors if it is to fulfil its promise of being an independent and impartial mechanism.[27]  These obstacles are not insurmountable and Central Africans deserve an opportunity to have justice. Without justice, they are unlikely to be able to reconcile and their suffering will continue.

Ritu Gambhir is a Humanitarian Affairs Advisor with Médecins Sans Frontières (“MSF”). The personal views of the author expressed in this article do not necessarily reflect the official position of MSF.

[1] UNDP, Human Development Report 2016.  J. Helliwell, R. Layard, and J. Sachs (eds.), World Happiness Report 2017.

[2] M. Bleasdale, Inside a Civil War Most People Have Never Heard Of. National Geographic (15 May 2017) .  See also P. Gwin and M. Bleasdale, Rich in Resources, This Nation Is Failing Anyway. Here’s Why. National Geographic (May 2017).

[3] UN OCHA, Central African Republic Humanitarian Brief (1 June 2017).   See also Norwegian Refugee Council, African countries top list of neglected crises (1 June 2017).

[4] MINUSCA, Communique de Presse (13 December 2016).   See also Human Rights Watch, Central African Republic: Executions by Rebel Group (16 February 2017).

[8] Enough Project, Stop Rewarding Violence in Central African Republic (21 February 2017).

[22] Z. Baddorf, Pessimism about CAR Peace Deal Widespread. Voice of America (23 June 2017).

[23] Mapping report, p. 292.

[24] Mapping report, p. 292.

[25] Mapping report, p. 292.

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