Parliamentarians for Global Action (PGA) congratulates the National Transitional Council (NTC) of the Central African Republic (CAR) which adopted by a large majority, on  22 April 2015, the bill establishing a Special Criminal Court in CAR. The vote follows the adoption on 5 February 2015 by the Council of Ministers of the bill establishing this Court which will be responsible for investigating serious violations of international humanitarian law committed in the territory of the CAR, including crimes against humanity, war crimes and genocide. PGA welcomes this vote as it is an important step in the fight against impunity, in restoring the Rule of law in CAR as well as in the long-term stabilization of the Great Lakes region.

PGA hails the outstanding work of PGA National Group in CAR, led by Ms. Beatrice Epaye and Mr. Gervais Lakosso, who played a major role in the rapid adoption of a crucial bill for the restoration of peace in CAR. During the weeks before the vote at the NTC, PGA urged the Members of the NTC to quickly pass the bill and provided technical assistance to ensure that the final text guaranteed an independent, just, effective Court that complies with international law standards.

Context

CAR has been the theatre of serious violations of international humanitarian law since 2012 where crimes against humanity, war crimes and possibly acts of genocide or ethnic cleansing have been allegedly committed. The International Criminal Court (ICC) opened an investigation in CAR in December 2004 and has brought charges against Jean-Pierre Bemba, Vice-President of the Democratic Republic of the Congo, for crimes against humanity and war crimes committed in CAR. In addition, in light of the recent events, the Office of the Prosecutor of the ICC opened a second investigation with respect to crimes allegedly committed since 2012, which PGA welcomed. Both times, the authorities of CAR referred the situations to the Court triggering such investigations and affirming their commitment to justice. The need for accountability is still however immense and as national authorities have the primary obligation to start investigations and prosecutions for those allegedly responsible of the most serious crimes of international concern, the creation of a Special Criminal Court is crucial in order to bring to justice such individuals, sharing the burden with the ICC, which can only prosecute the most responsible for those crimes due to its limited capacities. The Court would also be beneficial for CAR as it would create a fair and effective structure within the Central African national system to fight impunity, focused exclusively on prosecuting the most serious international crimes.

In April 2014, a Special Investigation Cell was set up by presidential decree, just before a Memorandum of understanding in August of the same year was concluded on the creation of a Special Criminal Court. A committee of national and international experts have worked on this SCC in collaboration with the Ministry of Justice and the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA).

This Court is crucial to investigate on the atrocities being committed in CAR. The national judicial system does not have the capacity nor the expertise needed to carry out investigations and prosecutions of very complex crimes and against criminals who are still active. The establishment of a functional court, which has the ability to prosecute, investigate and arrest the perpetrators of international crimes would have a real deterrent effect, as it would send a strong message to the perpetrators of serious crimes that impunity is over and they must answer for their crimes.

Composition, structure and functioning of the Special Criminal Court

The Special Criminal Court will have jurisdiction to investigate the most serious crimes of concern to the international community, namely crimes against humanity, war crimes and genocide committed on CAR’s territory since 2003 (in the initial bill provided for 2012 only). The Court is composed of 27 judges, including 14 domestic and 13 international judges. The Presidents of the chambers will also be nationals and the Special Prosecutor will be an international staff. It will be integrated in the Central African judicial system for five years (renewable thereafter again for five years). These elements ensure cooperation in the long term for the Central African judicial system, in particular by benefiting from the expertise and international support. The Court will focus on the most serious crimes of international concern, therefore experts and other international staff will have to demonstrate solid experience in the fight against impunity in these areas in order to ensure the effectiveness and efficiency of the work of the Court.

The first source of law for the Court being the national criminal law, it is essential that it is accompanied by reforms to the national legal framework regarding international crimes, including the full implementation of the Rome Statute of the ICC, of which CAR is a State Party since 2001. Such reforms are crucial to implement effectively the principle of complementarity in order to fight against impunity and to give justice to thousands of victims of chronic armed conflict in CAR.

In 2009, CAR's Parliament revised its Criminal and Criminal Procedural codes to implement the provisions of the Rome Statute. Thus, the new 2010 Penal Code defines the crimes falling under the jurisdiction of the ICC, namely genocide, crimes against humanity and war crimes (Articles 152-162). Meanwhile, a Title (Title XIV) devoted to cooperation with the ICC is included in the new Code of Criminal Procedure. The political crisis that hit CAR shortly after the adoption of these reforms made both the implementation of these laws and the initiative for new legislative reforms impossible. The creation of a Special Criminal Court should in no way be seen as a body that conflicts with the existing domestic legal framework but as fitting into the continuity of CAR’s ongoing reforms to ensure an effective judicial system.

The adoption of this bill is the opportunity for Central African authorities to conclude and complete the legislative process for the implementation of the Rome Statute, since the current Criminal Code and Criminal Procedure Codes contain some gaps on the definition of war crimes and crimes against humanity, and the general principles of law that are in the Rome Statute (in particular the rights of the accused) and on cooperation provisions with the Court. This would allow CAR to work in complementarity with the ICC, which has already opened two investigations in CAR, through enhanced cooperation and effective implementation of the principle of complementarity, which the Special Criminal Court is one of the most important mechanisms. The complementary work between the Special Criminal Court and the ICC will enable both bodies to share the burden in a country where numerous crimes were committed. Cooperation between national authorities and the ICC will be strengthened, and CAR will serve as an example to be followed in the international fight against impunity, including in the region where for example the Democratic Republic of the Congo still hasn’t managed to establish such a mechanism (in fact for many years, various attempts to create a specialized mixed court or chambers have failed, the latest in 2014).

Thus, to enhance the impact of the SCC, PGA encourages the NTC to support its creation by taking additional measures in order to ensure adequate compensation for victims, if necessary, by the establishment of a Special Trust Fund. Furthermore, in light of the prevailing insecurity in CAR, the Central African Government should also adopt special measures to protect witnesses. Such measures will encourage witnesses to participate in the trial, thereby ensuring the smooth conduct of proceedings.

PGA is concerned, however to note that the bill creating the SCC adopted by the NTC contains no mention of the non-application of immunities before the Court. The principle of non-immunity is part of customary international law, which can already be found in the 1943 Moscow Declaration and which has constantly been reaffirmed since, particularly in the jurisprudence of international tribunals such as the International Court of Justice, the International Criminal Tribunal for the Former Yugoslavia, the Special Court for Sierra Leone and Rwanda, and finally the ICC Rome Statute which clearly embodies this principle. Besides implementing the provisions of the Rome Statute, CAR has clearly provided that those committing war crimes, crimes against humanity and genocide cannot benefit from any immunity (art. 162 of the Criminal Code) in order for the Court to effectively end impunity and ensure that those responsible for international crimes are brought to justice, it is necessary to ensure that no immunity can be invoked before the Court.

While extremely serious crimes continue to be committed in CAR, PGA urges the Central African authorities and the United Nations multidimensional integrated Stabilization Mission in the Central African (MINUSCA) and other parties to establish the Special Criminal Court as soon as possible. Now that the law establishing the Court was adopted, it needs qualified staff but also political support and funds for its operation. The UN Security Council should also ensure that the support of the MINUSCA, including logistical and financial works correctly.