Challenges of the new Special Court for the CAR
Pierre Hazan, JusticeInfo editorial adviser and associate professor at the University of Neuchâtel
A Special Criminal Court to deal with war crimes in the Central African Republic (CAR) is now being set up. On February 14, President Faustin-Archange Touadéra appointed as Prosecutor of this Special Court Toussaint Muntazini Mukimapa, a military prosecutor in the Democratic Republic of Congo. In the coming weeks, national and international judges for the court are also expected to be appointed, and will then need to get down to work to make operational this semi-international tribunal, whose mandate is to try suspected perpetrators of the most serious crimes committed in the CAR since 2003. The International Criminal Court (ICC), which has also been asked to investigate, will have priority to try war criminals, should the two courts find themselves in competition. This is different from the usual way the ICC operates.
This Special Criminal Court follows a long list of other semi-international courts, also known as hybrid or mixed tribunals. They include the Extraordinary African Chambers (2016), the Special Court for Sierra Leone (2002), the Special Tribunal for Lebanon (2009), the War Crimes Chamber in Bosnia and Herzegovina (2005) and the Extraordinary Chambers in the Courts of Cambodia (2003), as well as the tribunals established by the transitional United Nations administration in Kosovo in 2000 (UNMIK) and Timor-Leste (UNTAET).
The three cardinal sins of the UN ad hoc tribunals
The hybrid tribunals were created as a reaction to the first generation of UN ad hoc tribunals, i.e. the International Criminal Tribunals for the former Yugoslavia (ICTY, 1993) and Rwanda (ICTR, 1994). These two tribunals were criticized for being out of the country where the crimes were committed, and for being too slow and costly. The hybrid courts were supposed in theory to offer the best of both worlds: being in the country concerned so as to allow popular ownership of the justice process, but with international judges to guarantee their impartiality, and all at an acceptable cost.
However, experience shows that all the hybrid tribunals have faced serious challenges, which they have tried to tackle in very different ways. The Special Criminal Court for the CAR will also be up against big challenges. Here are some of the main ones:
1. Building legitimacy: Coming in the context of a conflict or serious political crisis, an international criminal tribunal or hybrid court always has opponents. The extent to which victims and civil society support the court and decide to get involved is crucial for building the tribunal’s legitimacy. The Special Tribunal for Lebanon is still criticized by a significant number of people in Lebanese society who think that the court’s very specific mandate – to prosecute perpetrators of the deadly attack on Rafic Hariri and crimes related only to that attack – does not represent balanced justice. It should be remembered that perpetrators of war crimes and crimes against humanity committed during the Lebanese civil war (1975-1990) were granted a general amnesty in 1991. On the other hand, the Extraordinary African Chambers, which tried former Chadian dictator Hissène Habré in Dakar, gradually won credibility in African public opinion. The Chadian victims associated themselves and their long struggle for justice with the court, and managed to make known to under-informed African populations the repression carried out by Habré in the 1980s. The way in which the CAR Special Court builds its legitimacy in a country where State authority is largely absent outside the capital will be one of its big challenges.
2. Protection of victims and witnesses: This is clearly a key aspect in the work of these mixed tribunals. The war crimes chamber in Bosnia-Herzegovina, the mixed tribunal in Kosovo and even the International Criminal Tribunal for the former Yugoslavia had the bitter experience of seeing witnesses and victims intimidated or even assassinated. In the same vein, the International Criminal Tribunal for Rwanda often proved unable to protect the identity of victims and witnesses as it had promised, sometimes putting their lives in danger. This is one of the most serious risks facing the hybrid courts, and one which the CAR Special Court will surely face.
3. An efficient prosecution strategy: The strategies deployed by Prosecutors of hybrid courts have been very different according to the situation and their mandate. The Special Court for Sierra Leone indicted only 13 people and tried only 8, including former Liberian President Charles Taylor, whereas the hybrid tribunal for Timor-Leste indicted some 400 suspected war crimes perpetrators. Most observers think that the Prosecutor of the CAR Special Court will target about 20 people, but that remains pure speculation until the Prosecutor has made his strategy known.
4. The capacity to get arrests: The Special Tribunal for Lebanon has never been able to get the arrest of a single indicted person! The mixed tribunal for Timor-Leste managed to get 88 people arrested, but 300 indicted persons fled to Indonesia, which has never collaborated with the courts of Timor-Leste. The question remains for the CAR Special Court: what will be the ability of the Court and its partners to arrest the people it indicts?
5. Outreach and appropriation by the people: The value of justice for mass crimes depends on its capacity to make its work known. Much progress has been made by the courts in this field since the creation of the ICTY. The most impressive is undoubtedly that of the Extraordinary Chambers in the Courts of Cambodia. More than 250,000 Cambodians came to the hearings to see former Khmer Rouge leaders before their judges, and some 100,000 have also gone to visit the killing fields. Tens of thousands of Cambodians have also watched videos of the trials in their villages. On the other hand, the war crimes chamber in Bosnia-Herzegovina tried, for instance, several suspected perpetrators of the Srebrenica massacres without any public present and only one journalist. In a country as big as the CAR, an essential role of the Special Court will be to sensitize and involve the population in its work.