MONDAY, 22 October 2018 marked a significant day for international criminal justice in the Central African Republic (CAR). It marked the first session of the Cour Pénale Spéciale de la République Centrafricaine or Special Criminal Court (SCC), a hybrid tribunal integrated into the CAR's domestic legal system. Now that the SCC is up and running, it represents an opportunity to ensure accountability for international crimes and justice for the victims of such crimes in the CAR since 2003.
The SCC was established in 2003 by National Transitional Council (interim parliament), which adopted organic law 15/003 relating to the creation, organisation and functioning of the Special Criminal Court. This post provides a short overview of the nature of the SCC, its jurisdiction and likely challenges facing the Court.
A hybrid court
The SCC is a hybrid court, but not one in the mold of, for example, the Special Court for Sierra Leone and the Special Tribunal for Lebanon. Unlike the aforementioned courts - which were established by way of treaties between the UN and the host nations - the SCC is a domestic court (Article 1 of the organic law) with special jurisdiction over international crimes (Articles 3 and 4) but allowing for international participation and cooperation. As such, the Court is composed of national and international judges (Article 20). The Court is also financed by voluntary contributions from the international community (Article 53).
Jurisdiction and penalties
Pursuant to Article 3 of the organic law, the Court has jurisdiction in respect of serious violations of human rights and serious violations of international humanitarian law committed on the territory of the CAR since 1 January 2003, notably the crime of genocide, crimes against humanity and war crimes. The crimes under the jurisdiction of the Court have no statute of limitations.
The Court may impose penalties provided for in the Penal Code of the CAR (Article 59). The maximum penalty that may be imposed is life imprisonment.
Article 56 of the organic law provides that it “shall apply equally to all persons without any distinction based on official capacity.”
The organic law also domesticates the Rome Statute’s rules on individual criminal responsibility and superior responsibility. Articles 57 and 58 further provide for criminal responsibility for military commanders and other superiors.
Fair trial and the rights of defence
Unlike recent internationalised/international criminal courts, the SCC is not established with a separate Defence Division. Instead, Articles 64-67 of the organic law provides for a special body of lawyers – a sort of special Bar - to represent defendants and victims. It is also notable that Article 67 provides especially for the participation of international lawyers alongside national lawyers in sensitive cases where the security of such national lawyers may be endangered.
Interplay with the ICC
The ICC has two ongoing investigations in the CAR (CAR I and CAR II). This is the first instance where the ICC and a hybrid criminal tribunal will be operating simultaneously within the same state. Considering the scope of the conflict in CAR and the hitherto limited involvement of the ICC, this is a welcome development. However, in accordance with Article 36 of the organic law the SCC enjoys primacy over national courts. A problematic feature of the organic law is that it gives jurisdictional primacy to the ICC. As noted by Labuda, this is not easily reconciled with the rationale underlying to the complementarity regime in the Rome Statute. To the extent that there is conflict, it may be avoided by way of communication and information exchange between the SCC and ICC prosecutors. Article 37 specifically authorises the SCC prosecutor exchange information to this end. One hopes that the SCC will be able to break new ground and develop effective practices as regards cooperation between the ICC and hybrid tribunals involved in the same conflict situations.
The fact that the SCC has started its work must be viewed as a sign of hope for justice in CAR. Unfortunately, the ICC has not made much leeway in delivering justice in CAR (see here). The SCC may help to plug the gap of enforcement that exists between current international (ICC) and national (local courts) efforts. It may also contribute to delivering localised justice e.g. through outreach strategies. However, with the ongoing unrest in the CAR, the SCC will no doubt face many challenges in the years to come. In order to deliver on its mandate (which is provisionally limited to 5 years), it will need plenty political support from local government, financial support form the international community and investigative and developmental support from the ICC.
Further reading/Useful resources:
SCC website (French only)
ASIL (Labuda article)
ICRC (organic law download [French] and summary [English])
Amnesty International (Bussey article)