The Rise and Rise of the Special Criminal Court (Part I)

Photo credit: Gaël Grilhot/RFI
Caption:  The President of the Special Criminal Court, Michel Landry Louanga, opens the Court’s inaugural session on 22 October 2018.

[Julian Elderfield is an international lawyer and worked in Bangui, Central African Republic for  the Special Prosecutor of the Special Criminal Court from 2019-2021. Previously, he worked in the Office of the Prosecutor of the International Criminal Court. Julian is currently based in Beirut.]

Introduction

One of the most interesting and exciting landscapes in the field of international criminal law at the moment is the Special Criminal Court (‘SCC’ or ‘Court’). Located in Bangui, Central African Republic (‘CAR’), the SCC is a hybrid international court with a mandate to try individuals accused of “serious violations of human rights and international humanitarian law”, including war crimes, crimes against humanity and genocide in CAR from 1 January 2003 (Art. 3, para. 1, Statute).

Overshadowed by the more well-known international hybrid courts and tribunals, the SCC maintains a relatively low profile even among international lawyers and scholars. This is perhaps due to the relative paucity of public information emanating from the Court, its location in difficult-to-reach Bangui, the fact that its governing texts, day-to-day operations and website are in French, and perhaps that it has yet to hold its first trial.

Nevertheless, the Court has made significant progress since its inception and particularly in the last 18 months. These bold strides have propelled it to the cutting-edge of international criminal law as practiced at hybrid tribunals. While some of the infrastructure and practice of the Court mirrors that of the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’), its unique context, composition, and fidelity to national law mean that many of the practical and legal issues the Court is currently dealing with are entirely novel.

This two-part article will first briefly touch on the history of the SCC. It will then provide an overview of recent developments. Third, the article will analyse the major legal and practical challenges the Court currently faces. Fourth, it will focus on key criticisms levelled against the SCC, and fifth, on its cooperation with the ICC. Finally, the Court’s impact will be explored.

The Creation of the SCC

Following a vicious conflict that raged from late 2012 to at least 2014 between the Seleka armed group, the CAR government and the Anti-Balaka armed forces, the United Nations Security Council established a peacekeeping force in the country in April 2014.

The concept and roadmap for the SCC’s establishment were set out in a Memorandum of Understanding between the United Nations and the then-transitional government of CAR in August 2014. The Court’s Statute was adopted by the transitional President Catherine Samba-Panza in June 2015. In May 2017, Toussaint Muntazini, a former military prosecutor in the Democratic Republic of Congo’s armed forces (see here and here), arrived in Bangui to take up the post of Special Prosecutor of the SCC, which he continues to occupy. In July 2018, the Court’s Rules of Procedure and Evidence (‘RPE’) were adopted.

On 22 October 2018, the Court held its inaugural hearing, which served the double purpose of formally opening its doors to the public (among other things, to receive individual complaints directly from victims (Art. 63(A), RPE)) and becoming the date on which the Court’s five-year mandate started to countdown. The Court’s five-year mandate may be renewed only once, for a maximum of ten years (Art. 70, Statute). On 4 December 2018, the SCC published its investigation and prosecution strategy, after which investigations formally began.

Among others, Patryk Labuda (here and here) and Ignacio Tredici and Renaud Galand (here) have written about the Court’s early days and have analysed in-depth its founding texts, including its subject matter jurisdiction.

Recent Developments

Under the Court’s legal framework, which adheres closely to French civil law, both the Special Prosecutor and the Investigating Judges are empowered to launch and conduct investigations.

In the just-over-three-year period since October 2018, the Court has made steady progress.

The Special Prosecutor recently reported that he had:

• Since 22 October 2018, received 146 individual complaints directly from victims (this number is now closer to 200);
• Currently 12 cases in the preliminary analysis stage;
• Currently one case under investigation, which included allegations of sexual violence; and
• Since 22 October 2018, transferred three cases to the local justice system following preliminary investigation by his Office (This could happen, for example, if after investigation by the Special Prosecutor the alleged crimes do not fall within the Court’s jurisdiction: Art. 35(3), Statute; Art. 35(A)(c), RPE).

At the same press conference, the Investigating Judges (Chambre instruction) reported that they had:

• Since 22 October 2018, received 22 complaints by victims who wished formally to be considered as victims in any future trial (plainte avec constitution de partie civile); and
• Currently nine cases under investigation, of which four were transferred from the local courts, five came from the Special Prosecutor following his investigation, three focused on crimes committed in Bangui, six focused on crimes committed outside of Bangui, and two included allegations of sexual violence (this number is now 10, six of which come from the Special Prosecutor).

The President of the Court announced that the SCC would hold its first trial in 2021. Given the confidential nature of the cases during the judicial investigation stage (Art. 71(B), Statute), it is not yet known exactly which case will be first off the rank. But 21 suspects are already in custody, three of whom were arrested after the massacre of 46 civilians near Paoua, in the north of the country, in May 2019. The Paoua massacre was the first major violation of a peace agreement between the CAR government and the major armed groups operating on the territory at the time, which would make it a symbolic first case for the Court.

Importantly, the SCC has nearly finished recruiting its full complement of international judges and prosecutors. The Court’s statute requires essentially an equal number of international and national judges and prosecutors, which cements its identity as a hybrid court. (It also assigns key positions to either international or national staff—for example the Special Prosecutor must be international (Art. 18, Statute) and the President of the Court must be national (Art. 6, Statute).)

Two Swiss Investigating Judges arrived in Bangui in February 2021, relieving the significant burden on the existing judges in the Investigating Chamber. Further, two other international judges—from Belgium and Madagascar—and one prosecutor—from Burkina Faso—have recently been appointed and will soon join their national counterparts already in place. Their imminent arrival means more investigative resources for the Special Prosecutor’s Office, and crucially that the Trial Chamber will finally be functioning and ready to hear cases.

Finally, the Special Body of Defence and Victims Lawyers (corps spécial d’Avocats) has recently become operational. This Special Body is a list of Central African public defenders, individually vetted by a hybrid international/national oversight body (l’organe paritaire) following a review of their experience, who are then designated to represent indigent accused and victims before the Court (Arts. 65-67, Statute). Non-Central African lawyers are also part of the Special Body—they are designated to represent parties in the context of the most sensitive cases, for example in instances where the local lawyers may be subject to threats or undue influence, but exclusively in partnership with a local lawyer. Currently, there are 32 national lawyers and 16 international lawyers admitted to the Special Body.

These important developments have indeed set the Court up to be in a position where this year, it will indeed be able to begin the most visible and important phase of its work: trials. This is crucially important—with its short lifespan, the SCC is under far more pressure than other, more permanent hybrid institutions to deliver results. Unlike the completion strategies of other international courts and tribunals, the SCC is constrained to its temporal limit by national legislation.

Legal and Practical Challenges

Funding is always a problem at international hybrid courts and tribunals—the financial woes of both the International Criminal Court (‘ICC’) and the ECCC, for example, are well-documented.

The SCC’s budget for 2020 was approximately US$12 million. It is projected to grow to US$15 million in 2021 and then stabilise at around US$14 million in the following years. This represents only about 30% of the Special Court for Sierra Leone (‘SCSL)’s and the ECCC’s annual budget, and only 20% of the Special Tribunal for Lebanon’s. Comparisons are not always instructive, but this is a lean figure by any measure. Some of the reduced cost is explained by the fact that international judges and prosecutors are nominated and paid by their own country (with additional compensation from the United Nations).

Despite the low cost (relative to other international hybrid courts), the Court continues to struggle with fundraising. Like the ECCC, the SCC relies on voluntary donations from the international community. Currently, the most generous donors are the United Nations Peacekeeping Force in the CAR (‘MINUSCA’), the European Union, the UNDP, the USA, and the Netherlands. To keep the lights on, the President of the Court is going to have to continue to invest time and resources to stay on international justice donors’ radars.

Interestingly, the Court currently has no budgetary autonomy. All of its resources are channelled through and administered by the UN. Although this is a measure designed to reassure international donors with strict financial accountability requirements, it is also less-than-ideal for the Court’s funds to be administered by UN agencies with notoriously sclerotic bureaucracy. For example, it is difficult to unlock quickly funds for time-sensitive investigative missions. The CAR government’s financial contribution, which is primarily in the form of human resources, is managed directly by the Court.

The Covid-19 pandemic played havoc with the Court’s activities in 2020 and continues to do so in 2021. For most of the year, non-essential flights operated by the MINUSCA to towns and villages outside of Bangui were cancelled for health reasons, which effectively prevented the Court from conducting investigations outside the capital. Further, the barriers to international travel during this period left many international judges and prosecutors stranded abroad working from home. Unfortunately, due to the inherent nature of court work, and with most of the Court’s case files unavailable in digital form, these judges and prosecutors were unable to contribute to the Court’s work for much of 2020. For a Court whose mandate is a maximum of 10 years, every year counts.

One of the most significant roadblocks to an efficient and high-functioning SCC is unfortunately one of its most important foundational principles. To guarantee its independence from a partial, powerful national government, the Court’s legal framework requires essentially —except for a few key positions—parity between international and national judicial staff. The hiring and retention of international judicial staff, however, has been highly problematic.

As mentioned above, international judges and prosecutors are proposed and, if hired, paid by their own governments. While this is a novel, practical idea to cut costs, it has had the unintended effect of failing to attract the deepest possible pool of talent. The MINUSCA, which is responsible for the recruitments (Art. 24, Statute), routinely struggles with low numbers of applicants responding to its calls to States for applications.

It has also led to lengthy negotiations between the UN and contributing governments over the deployment of these judicial actors. For example, a call for applications for the international post of Deputy Registrar was launched two years ago, but the post remains vacant. Further, when international judicial staff resign, the unwieldy nature of the recruitment process means it often takes more than a year to replace them. Again, for a Court with a maximum 10-year mandate, this is far too long.

Please see Part II.