By Patryk I. Labuda | ejiltalk.org
On 22 October 2018, the Special Criminal Court (SCC) held its inaugural session in Bangui, the capital of the Central African Republic (CAR). Several weeks later, the Special Prosecutor, Col. Toussaint Muntazini, announced his long-awaited prosecutorial strategy. Coming three years after Parliament initially requested a specialist ‘war crimes’ tribunal for CAR, these two acts mark a watershed in the country’s fight against impunity. After providing some background on the SCC, this post examines the prosecutorial strategy and the prospects of accountability in CAR.
The Legal Framework
Established by domestic legislation in June 2015, the SCC is a hybrid tribunal fully integrated into the Central African justice system. It is staffed by national and international prosecutors and judges, and relies on logistical and technical support from the UN peacekeeping missionin CAR. Funded by voluntary contributions, the SCC is functionally independent from both the United Nations and CAR government. Its five-year mandate, which officially began on 22 October 2018, is renewable.
Why did the SCC publicize its prosecutorial strategy? Other tribunals, for instance the Special Court for Sierra Leone and the International Criminal Tribunals for Rwanda and the former Yugoslavia, never made their strategies public (to the extent such strategies existed). The SCC’s decision to ‘go public’ is more in line with the International Criminal Court (ICC)’s practice of adopting formal policies on a variety of matters.
Indeed, parts of the SCC prosecutorial strategy bear an uncanny resemblance to the ICC’s own policy paper on this topic. In particular, the structure of both documents is the same (general principles followed by case selection and case prioritization criteria), as are the identical references to independence, impartiality and objectivity – principles which are self-explanatory and, perhaps, slightly redundant.
Beyond transparency, however, a more practical consideration prompted the SCC to publicize its strategy (a more detailed roadmap for prosecutions will remain confidential). The tribunal has a very broad mandate. Unlike other hybrid and international criminal tribunals, the SCC’s subject-matter jurisdiction is not limited to core international crimes. According to Article 3 of the law establishing the SCC, it has jurisdiction over “serious violations of human rights and international humanitarian law… in particular genocide, crimes against humanity and war crimes” (all translations by author).
Victims may be surprised to learn that the SCC’s effective jurisdiction is limited to only the latter three crimes. According to the prosecutorial strategy, “the SCC was in the first place created to try genocide, crimes against humanity and war crimes” (para. 52). While it is not clear that this statement is historically accurate, most observers will agree that focusing on international crimes makes eminent sense from an operational perspective. It will save resources and reduce the possibility of time-consuming litigation on (fascinating) legal questions such as: what exactly are serious violations of human rights that give rise to individual criminal responsibility?
That being said, focusing on international crimes to the exclusion of other serious violations foreshadows two other, more contentious policies. First, the prosecutorial strategy recommends that victims contact the Special Prosecutor, while openly discouraging individual petitions to the SCC’s investigative judges. Specifically, the document notes that “directly petitioning the Investigative Chamber must, to ensure the Court’s proper functioning, remain secondary…” (para. 35). Some context is necessary lest this exhortation be misunderstood.
The SCC is a national court within CAR’s justice system, which means it operates on the French inquisitorial model with investigative functions for both the prosecutor and investigative judges. As such, victims may bring crimes to the attention of either magistrate (a victim acts as a partie civile when submitting claims directly to the investigative judge). While this procedure gives victims more latitude to influence investigations, it can also create major problems if the SCC is flooded with hundreds of individual complaints. Acknowledging this reality, the prosecutorial strategy points out that the Special Prosecutor is better positioned to gather evidence in a holistic manner with a view to proving the contextual elements of international crimes (for instance, a widespread and systematic attack for crimes against humanity). Nevertheless, in practice, it will be difficult for Central African victims to understand why isolated violations of their human rights should not be handled by the SCC, given that the tribunal is expressly mandated to deal with such crimes.
Another surprise is that, unlike other international criminal tribunals, the SCC will not focus on those ‘most responsible’. This is unusual, as the strategy openly acknowledges (para. 58). In choosing suspects for prosecution, the Special Prosecutor and the investigative judges will consider elements such as ‘the degree of responsibility’, ‘their actual role within armed groups or state institutions’, and ‘repeat offenders’. However, instead of focusing on ‘those most responsible’ and ‘high-level’ suspects, the SCC will ‘apply the more general criterion’ of ‘people who played a key role in committing crimes’.
What does the term ‘key role’ encompass? The strategy mentions perpetrators who exercised command and control over subordinates, planned and executed crimes, played a major role in directly or physically perpetrating crimes, committed especially odious crimes, and those who occupied command roles at national, regional or local level (para. 58). This prompts the question: is the ‘key-role’ threshold any different from the more familiar ‘most responsible’ clause used by other tribunals? The difference, if any, seems primarily semantic in nature.
In fact, this (admittedly awkward) clause seems to perform two functions. First and foremost, it ensures that the Special prosecutor and investigative judges retain flexibility in choosing whom to target. Whereas ‘most responsible’ suggests the SCC will aim high, ‘key-role’ has the undeniable benefit of being vague. Given the ICC’s poor track record with high-level suspects, including a high-profile failure in CAR, it makes sense for the SCC to manage expectations and not promise too much.
The ‘key-role’ threshold can be tied back to the ICC in another way. In CAR, three jurisdictional forums – the SCC, ICC and ordinary courts – share concurrent jurisdiction over international crimes. Under the ICC’s rule of complementarity, the SCC and other national courts have jurisdictional primacy, with the ICC intervening as a court of last resort. However, the law establishing the SCC purports to give primacy to the ICC, implicitly relegating the SCC to a subordinate position. As I explain here, Article 37 of the SCC law violates complementarity and should be invalidated by the SCC’s judges when the opportunity arises. Nevertheless, the prosecutorial strategy in its current iteration reinforces the erroneous perception that the ICC, sitting atop a jurisdictional pyramid in CAR, will take care of those most responsible.
Although this conceptual confusion is unfortunate for a variety of reasons, its practical consequences may still be limited. As noted above, the distinction between ‘most responsible’ and ‘key-role’ seems more semantic than substantive in nature. Moreover, the SCC and the ICC have a memorandum of understanding, which allows the prosecutors to coordinate activities, including the choice of suspects. Notwithstanding the ICC’s ongoing CAR IIinvestigation, the SCC Special Prosecutor should certainly not be dissuaded from investigating senior perpetrators due to a misguided belief that the ICC has priority, or that he lacks the jurisdiction to do so.
With investigations set to begin in 2019, two final remarks are in order. Although the prosecutorial strategy notes the importance of even-handed justice (paras 42-44), its open-ended language leaves the Special Prosecutor and the investigative judges with considerable discretion. This is wise. It is too early to know whom the SCC will target first, but the recent arrests of two former anti-balaka by the ICC underscores that some groups are more vulnerable to prosecution than others.
The strategy also makes clear that security concerns and the feasibility of investigations and arrests (paras 64-67) will make or break the SCC. This is no coincidence. With 80% of the country controlled by armed groups, breaking CAR’s ‘cycle of impunity’ will not be easy. Nevertheless, the SCC’s new prosecutorial strategy send a clear message to the Central African people: after years of preparations, CAR’s hybrid court is finally open for business.