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

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.]

This article focuses on one of the most interesting and exciting landscapes in the field of international criminal law: the Special Criminal Court, in Bangui, Central African Republic. Part II will continue to explore the major legal and practical challenges the Court currently faces. It will then analyse key criticisms levelled against the SCC, before touching on the Court’s cooperation with the ICC, and its impact and legacy.

CAR has been wracked by near-constant armed violence since 2001 of varying degrees of intensity. The signing of a major UN-brokered peace agreement in February 2019 brought a temporary peace and hope to many parts of the country, but the situation remains unstable. For the last two years, up to 80% of the territory has not consistently been under government control.

In the last three months, the security situation has seriously deteriorated. Following hotly-contested presidential elections on 27 December 2020, half a dozen of the major armed rebel groups operating in the country banded together under one banner, calling themselves the CPC (La Coalition des patriotes pour le changement).

Disgruntled with the result of the election, which the incumbent, Faustin-Archange Touadéra, won, the CPC attacked Bangui on 13 January 2021. The armed group was acting under the alleged leadership of former President Francois Bozizé, who had been barred from running by the country’s constitutional court. Repulsed by the MINUSCA, state military forces and Russian mercenary forces, the CPC scattered. The government immediately instituted a state of emergency and imposed a 18h00 curfew.

Far more so than any other international hybrid court or tribunal (except perhaps in the early days of the SCSL), the SCC has had to operate in this context of country-wide upheaval. The constant threat of violence has influenced how it has carried out its investigations. For example, investigative teams of SCC Judicial Police have deployed to villages to investigate crimes allegedly committed by persons who, or armed groups that, retain control over those same villages. Although the Judicial Police are advised by the Court’s witness protection and security units, conditions are extremely challenging. Although investigators often have the firepower of the MINUSCA behind them in an emergency, they generally deploy as covertly as possible with a robust alibi.

Conflict also has affected the quality of evidence collected. Violence—even if not in immediate proximity—has dampened witnesses’ willingness to cooperate or to share their stories with the SCC. It has made it harder to travel to villages and to locate witnesses. It has created forced displacement flows that have separated witnesses from the locations of alleged crimes and destroyed or concealed physical evidence like documents, videos or munitions. And it has hardened attitudes to other ethnicities and communities, which can evolve to become ingrained narrative biases. This challenging context makes it all the more impressive for the Court to have stitched together so many cases, including with persons in detention.

Criticisms of the SCC

Of the many inevitable criticisms levelled against the SCC, two merit closer examination. The first is the slow pace of its proceedings. The second is the decision by the Court not to reveal publicly the identity of its 21 detainees.  

In a comprehensive country-wide survey recorded and published by the Harvard Humanitarian Initiative in November 2020, of those who say they have heard of the SCC (71% of the population), 59% say they are confident about its ability to dispense justice. Nevertheless, the Court’s most sustained criticism—by Central African citizens, echoed by international observers—is that it’s been operating for too long without seeing any results.

This is true, but it’s not the whole story. The Court has a uniquely complex operating environment, it’s a highly ambitious project, and it does not have control over many of the anchors slowing its progress. The investigations are complex and by definition large-scale. The timelines of the Court’s investigations are also guided by its legal framework in keeping with its civil law roots: six months for the Special Prosecutor’s investigation (Art. 70(B), RPE) and two years for the Investigating Judges’ (Art. 106(B), RPE).

How does the SCC stack up relative to other international courts and tribunals? As Shoshana Levy recently wrote, “the ICTR handed down its first judgement almost three years after it was fully operational, the ICTY took three years, the ECCC four-and-a-half years and the SCSL almost five years. The ICC took even longer, as it handed down its first sentence almost ten years after becoming operational.” Three-and-a-half years since its 22 October 2018 inaugural hearing, but with its first trial promised in in 2021, the SCC is clearly off the pace, but not egregiously so.

The second key criticism of the Court in recent months was raised by prominent human rights organisations following well-publicised SCC arrests in 2019 and 2020. A report by Amnesty International, and follow-up commentaries, lamented the fact that the public was not aware of the identity of the 21 suspects currently in SCC detention. Observers subsequently called on the SCC to disclose their identities.

This criticism fails to appreciate the specific legal framework in which the SCC operates. The public disclosure of suspects’ identities before the trial stage (i.e. during the prosecution or judicial investigation phase) is not required. In fact, the law states that, “without prejudice to the rights of the defense, the investigation is secret” (Article 71, RPP).

Judges have reasonably interpreted this plain provision to include the identities of suspects. The SCC operates in a hostile environment, with most of the country under the control of powerful armed groups. These actors have a significant capacity to strike at the judicial process, either in the form of reprisals, attacks against victims or witnesses in their towns and villages, attacks in detention centres in Bangui, or attacks on the SCC and its actors. The Court’s judicial actors cannot ignore this threat.

Until the public phase of the Court’s work—its trials—commences later this year, at which point the detainees’ identity will be rendered public, detainees are assisted by their legal counsel, who interact with the Investigating Judges and the Special Prosecutor’s office to protect their rights in accordance with the Statute.

Cooperation with the ICC

The ICC has had a blockbuster period in CAR since the end of 2018. In that period, it has made three arrests in the context of its CAR investigation (Mahamat Saïd Abdel Kani, Alfred Yekatom and Patrice-Edouard Ngaïssona) and one in the context of its Sudan investigation (Ali Kushayb). (Dominic Ongwen was also arrested in CAR in January 2015.)

The ICC has had a near-constant presence in CAR since 2007, which was the start of its investigation into violence in Bangui in 2003 that gave rise to the case against Jean-Pierre Bemba. Recently, the ICC has made a concerted effort to expand its visibility. It has sponsored justice-related road-side billboards across the capital and appeared on local radio to publicise its activities. But ultimately, the ICC’s—and particularly the Office of the Prosecutor’s—state cooperation, external relations, and public outreach machine struggles to have an impact without a significant permanent field presence in a country that still functions most efficiently on the basis of face-to-face encounters. For example, lobbying for the authorities to execute the ICC’s arrest warrants is far more effectively done in the office of the Central African Minister for Justice, than from the Hague.

For that reason, the SCC is a valuable potential partner for the ICC. The SCC’s Statute was drafted in the context of an ongoing ICC investigation into international crimes committed starting in 2012 in the country. As such, the SCC’s legal framework explicitly envisages cooperation with the ICC. Article 41 of the RPE requires the Special Prosecutor of the SCC, “In the interests of efficiency and judicial economy, [to] consult, as much as possible, [with] the Prosecutor of the International Criminal Court regarding the implementation of his investigation and prosecution strategy”.

The details of this cooperation are confidential, given its focus on investigations and prosecutions. However, the two prosecutors exchanged formal letters in 2018 and subsequently implemented a robust, working-level cooperation and information exchange. For example, for the Special Prosecutor may consult with the Prosecutor of the ICC before opening a preliminary investigation. This serves the interests of both preserving judicial economy and furthering the investigation and prosecution of cases at both institutions.

Outside case-related cooperation, many of the SCC judges and prosecutors have undertaken visits to ICC premises in The Hague as part of the Court’s donors’ training and capacity-building efforts. On 16 February 2021, at the behest of the ICC, the SCC hosted a live-stream of the opening day of the ICC’s The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona trial in the SCC’s newly-constructed courtroom in Bangui, demonstrating that there is also ample room for ‘extra-judicial’ cooperation and collaboration between the two institutions.

There is a bright future for an enhanced ICC-SCC cooperation if both institutions invest the time and resources. It may be that the SCC serves as a secure location to obtain video-link testimony of trial witnesses in the Ngaïssona and Yekatom or the future Saïd trials, which would save the ICC time and money. Or, perhaps similar to the mechanism provided for in Rule 11bis of the ICTY’s and ICTR’s Rules of Procedure and Evidence, and as hinted to in its Draft Policy on Situation Completion, following its 15-year investigation into mass criminality in the country, the ICC could transfer packages of evidence it has collected but never used to the SCC for further investigation and future prosecution.

The SCC’s Impact

Is it too soon to talk about the SCC’s impact when its first trial has not yet begun? The short answer is: no. Given its limited temporal mandate, Court staff are keenly aware of the importance of conducting their activities through the lens of the Court’s future legacy.

Some may also wonder if tens of millions of donor dollars are best spent on a discrete, finite project, rather than through a more wholistic investment in the local judicial system. For example, one interesting model might be to embed international legal experts into local courts to work with judges and prosecutors in the existing judicial framework. Vastly cheaper, infinitely quicker than building a Court and its legal framework from scratch, this model also puts the emphasis on sustainability and empowers local solutions.

But there are three reasons that support the SCC model. First, this is the first time, at least in recent years, that the CAR has had a functioning legal body. It’s a desperately needed good example—embedded within its own national system—for young Central African lawyers beginning their career in the field of (international) criminal law. Second, many consider the SCC an investment in the CAR’s judicial future. When the Court reaches the limit of its temporal mandate (either five or 10 years), the Court’s newly renovated premises as well as its national staff and their accumulated knowledge and experience of international norms will be handed over to the local justice system. Third, perhaps most importantly, the SCC is independent while remaining embedded in the Central African judicial system. With international staff in key positions and funded almost exclusively by the international community, the SCC is unlikely to fall prey to the type of political or financial interference that unfortunately continues to be endemic in local judicial processes.

In fact, the SCC has already had an impact, albeit indirectly, on the local justice system. Money flowing into the country from international partners earmarked for justice projects has resulted in brick-and-mortar improvements to the national morgue and the central police station, as well as the construction of a water source at the Ngaragba prison in Bangui, a law library in the University of Bangui, and a new building to house staff and a modern courtroom at the SCC. These projects will be part of the SCC’s physical legacy at the end of its mandate.

Another interesting project has been the recent SCC-led initiative to collect and publish in a publicly available anthology all relevant criminal law-related judgments rendered in CAR from 2003. This is the first time such a project has been undertaken in the country. It is an important step towards understanding and clarifying Central African criminal legal principles and their application in local courts, both for SCC judges who must apply them (Art. 3, para. 4, Statute) and for future law students and legal professionals in CAR.

Conclusion

Despite its low profile, the SCC is one of the most interesting and exciting courts in the field of international criminal law. Operating in a complex environment, it has overcome many obstacles. But it still has far to go. 2021, in particular, will be a seminal year. There are numerous cases nearing the end of their investigation term limit in the Investigating Chamber with suspects in detention. Trial judges are in place. It is time for the Court’s first trial: to finally deliver on a promise that has been over six years in the making. The eyes of Central African citizens and international observers alike are trained on the SCC, hoping that a lean, hybrid-model of international criminal justice can be dispensed in a country struggling with interminable cycles of violence and widespread impunity.