The Special Criminal Court Must Fill the Justice Gap Left by the ICC in Central African Republic

[Chuka Arinze-Onyia is a practicing criminal defense lawyer with an avid interest in international justice issues. He authored this article during a recent stint as an International Justice in Africa Fellow with Amnesty International.]

On 16 December 2022, the ICC Prosecutor announced that his office had concluded the investigation phase of its work in Central African Republic (CAR) and would not pursue new lines of inquiry within the country. The immediate consequence of this decision is that until the ordinary national courts develop the capacity to dispense justice for crimes under international law, the Special Criminal Court (SCC) has become the primary avenue for justice for the many crimes against humanity and war crimes committed in the country for the past two decades.  

Established in 2015 by the government of CAR in partnership with the United Nations, the SCC is a hybrid court staffed by both domestic and international personnel and integrated within CAR’s domestic legal system. The SCC, which is mandated to investigate and prosecute crimes under international law committed in CAR, became operational in 2018 after its inaugural session and has since worked alongside national courts and the ICC to ensure accountability for crimes under international law in the country. 

The SCC Needs Financial and Political Support

As a sign of confidence in the crucial work of the SCC, on 28 December 2022, its initial mandate of five years was renewed for another term of five years expiring in 2028. Unfortunately the Court continues to struggle with inadequate financial and political support, which may ultimately affect the SCC’s capacity to deliver its mandate. Historically, the SCC has found it difficult to fill up vacant positions and only recently was it able to fill open judicial positions. Further concerns have been expressed by SCC insiders that the court will not have sufficient funding for the full five years of its renewed term. The SCC’s website states  that it has been able to raise funds for the next 15 months of operation and is currently working to acquire more funding.  The court which is primarily funded by the United Nations through the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA)and United Nations Development Programme (UNDP), the European Union and United States, only received funding from the United States and the UN in 2022. Given the SCC’s new position of importance in CAR, it is extremely important for all its partners to ensure that the Court has the requisite financial  backing to adequately perform its functions. Unfortunately, the fact that contributions to the SCC are on a voluntary basis, means that the Court may never be too certain of acquiring the all the funding it requires, and that may significantly impact the ability of its ability to function effectively.  

The success of the SCC also hinges significantly on the level of political support it receives from the CAR government and security forces. While the SCC has made some progress in investigating and prosecuting crimes under international law, there are still serious challenges with respect to the arrest and prosecution of high-ranking government officials suspected committing such crimes. In 2021 after the Minister of Livestock, Hassan Bouba Ali, who was a former leader of the Unity for Peace armed group was arrested and detained by the SCC, he was forcibly released from SCC custody by CAR authorities. Such incidents interfere with the Court’s  ability to deliver justice and erode public confidence in the rule of law. While the Special Prosecutor of the court insists that the forcible removal of Bouba from the custody of the SCC was “an unfortunate incident” which belongs to the past on a page has been “resolutely turned”, it is disgraceful that such an incident occurred at all. And the fact that Bouba has retained his position as the Minister of Livestock significantly dampens any hope that the CAR government will allow his prosecution any time soon. If the Court is unable to prosecute high-ranking government officials responsible for crimes in the country, then the victims’ hope for justice will be significantly damaged. 

The commitments made by CAR authorities to support the SCC must include support for the prosecution of high-ranking government officials and others who are suspected of committing crimes under international law. The SCC should be able to carry out its mandate without fear of political interference or reprisals, and CAR authorities must demonstrate their commitment to justice for all victims and in relation to all accused persons, regardless of the position or status of certain powerful perpetrators.

Another key area where the SCC requires real support from the CAR government and MINUSCA is in the execution of arrest warrants issued by the court. Only a small fraction of arrest warrants issued by the court have been executed. Failure or delay to execute warrants of arrest issued by the court, will affect its ability to perform its responsibilities, and will ultimately delay the course of justice. It is important that both CAR and MINUSCA work actively towards ensuring persons of interest wanted by the Court, and for whom arrest warrants have been issued, are immediately arrested. 

Need to Strengthen Cooperation with the ICC

The OTP’s announcement concluding investigation in CAR reiterated the need for the ICC to deepen cooperation with the SCC. While the SCC and ICC have signed a memorandum of understanding to promote cooperation, in reality it appears that the two courts have not yet found a work together effectively. A Judge of the SCC stated on 6 December 2022, at a side event organised during the 21^st session of the Assembly of State Parties, that the ICC had not responded to requests for information sent to them by the SCC since October 2021. This is concerning not only because it is evidence of strained cooperation between the two courts but also because delay by the ICC in responding to these requests would inevitably lead to delays in investigation and/or trials in the SCC.  

It is necessary that the promise of cooperation between the two courts translate into concrete action. Safely sharing information that could help the SCC with its work, without endangering witnesses and sources, should be a priority for the ICC in the desired cooperation with the SCC. Also transfer of technical expertise including in evidence gathering and preservation, and witness protection, which can be done through trainings or secondment of ICC staff to the SCC, may help the work of the SCC.  The CAR government and the ICC have a responsibility to the victims to ensure that the SCC is able fill in the gap left by the ICC in the wake of the Office of the Prosecutor’s decision to conclude investigations in the country. 

To conclude on a brighter note, with the right support, the SCC has the potential to deliver justice in CAR, in a manner that the ICC could never do. Not only because the SCC is much closer to the people, and not far away in the Hague, but also because the SCC is prepared to try lower-level perpetrators that would have gone under the ICC’s radar.  The SCC has already shown the potential to deliver justice. Its first trial which opened in April 2022, led to the conviction of three persons for war crimes and crimes against humanity. This could be the first of many trials, if the court is given the support it requires to operate effectively. The Special Prosecutor predicts that with adequate support and based on its current case files, the SCC could complete six trials in the next two years, which is significantly more than the ICC has been able to do in the country. 

Given that the SCC is now the most important avenue for justice for crimes under international law committed in CAR, the international community must provide greater support for the SCC as the court strives to deliver justice in the country. Importantly , the SCC will soon be faced with questions of reparations for victims of crimes in CAR. For the SCC to fully step into the justice gap left by the ICC, it is important that the court is able to order for adequate reparation measures like the ICC, and it is unclear that the Court is currently able to do so. Especially as the Court itself has  recommended that civil society explain to victims that financial compensation cannot be envisaged given the massive amount of destruction that occurred in CAR.  Whether victims can look forward to order forms of reparations is yet unknown. Victims have a right to reparations, and justice is not complete without reparations for victims. It has been suggested that the Trust Fund for Victims may still have a role to play in providing reparations for victims of crimes completed by the SCC. This may be yet another avenue for cooperation.