Is a hybrid court for the CAR a good idea?
By Luigi Prosperi*
On 22 April, the National Transition Council of the Central African Republic (CAR) adopted a bill, establishing a Special Criminal Court (SCC). Its task will be to investigate and prosecute those responsible for committing international crimes in the CAR since 2003. According to Human Rights Watch, the law states that the Special Court “will be a hybrid judicial mechanism made up of Central African and international judges within the Central African justice system for a renewable five-year period”. It will have a Central African as president, an international prosecutor and national judges will be in the majority (14 out of 27).
But questions should be asked about the desirability of establishing an international special tribunal behind the International Criminal Court's back. There might be better options for fighting impunity in the CAR.
On 30 May 2014, the CAR government referred to the ICC prosecutor the situation on its territory since 1 August 2012. On 24 September, Fatou Bensouda announced she was opening an investigation because the information available provided a reasonable basis to believe that international crimes had been committed by the parties in the civil conflict (both the Seleka and the so-called Anti-balaka fighters).
Despite the ICC’s efforts, the members of the International Commission of Inquiry on the Central African Republic - set up by the UN Security Council in 2013 - called for the establishment of a "truly international" tribunal with international judges (sic!).
This would be the first time a “truly international tribunal” was set up “in a place where the ICC is also active”, as noted by HRW. Since the CAR referred the same situation to the Court, in order to comply with the complementarity principle, the relationship between the ICC and the SCC needs to be precisely defined in an ad hoc agreement. Under Article 93, para. 10 of the Rome Statute, a State Party can either ask the ICC for “technical assistance” or propose the adoption of a framework agreement on the allocation of jurisdiction. The latter is based on the “devolution” of the trials concerning the middle- and low-level perpetrators to a new national court, but the investigations need to be coordinated by the ICC. Otherwise, the establishment of a “truly international” (and truly competing) special criminal court for CAR could deal a death blow to the ICC’s legitimacy.
Many observers and professionals seem biased towards hybrid and special international criminal tribunals. They assume that an ad hoc institution is in a better position to fight impunity in situations of widespread violations of human rights.
Speaking last week to Justice Hub, Patryk Labuda affirmed that “the new special court (…) will have a great deal of money available for prosecutions [and] will receive significant financial and logistical support from the UN peacekeeping mission, MINUSCA”. But the international community should provide an accurate assessment of the efficacy of allocating huge financial resources to a special tribunal.
Thought should also be given to reflect on the “economic sustainability” of these kind of institutions. The last two tribunals established by an agreement between the UN and a member state - the Special Courts for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia - have cost to date about $300 million each. (Click here for an appraisal of the SCSL’s budget, and the ECCC’s revised budgets for 2005-2009, 2010-2011, 2012-2013 and 2014-2015).
The full ICC Program Budget for 2014, which was approved by the Assembly of States Parties on 27 November 2013, amounted to €121,6 million. The proposed Programme Budget for 2014 asked for €1.25 million for “field operations and activities” in the CAR situation. Since the international community will have to finance the special court, wouldn’t it be better for it firstly to contribute to a better equipped in situ ICC operation?
Bosnia & Herzegovina
A different model is possible. When the completion strategy for theInternational Criminal Tribunal for the former Yugoslavia (ICTY) was adopted, the international community realised that it may not be able to end impunity for the crimes committed in the territory of the former Yugoslavia. So, it decided to set up the so-called War Crimes Chamber or WCC. It came about as the result of an agreement between the ICTY and the Office of the High Representative. It is part of the State Court of Bosnia and Herzegovina.
From 2003 to 2012, the WCC received donations amounting to more than €60 million (see The Court of Bosnia and Herzegovina, p. 57). The WCC was established as an “internationally assisted” tribunal to which the ICTY referred cases of lower- or intermediate-rank accused. It was composed of international and national personnel and applied international criminal law as incorporated into the national criminal and criminal procedure codes. Since September 2010, it has tried 166 individuals (see OSCE’s "Delivering Justice in Bosnia and Herzegovina - An Overview of War Crimes Processing from 2005 to 2010", p. 45). It is seen as having contributed “to the development of the judiciary in BiH”. The presence of international judges, prosecutors and investigators came to an end on 31 December 2012 (see 43rd Report of the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina to the Secretary General of the United Nations, para. 67).
If a similar “internationally assisted” court were to be set up in the CAR, it could rely on the investigations that have been conducted on the ground by the ICC (and summarised in Fatou Bensouda’s Article 53(1) Report of 24 September 2014), and the ICC investigators could count on the cooperation of the CAR authorities and MINUSCA personnel. Such an “internationally assisted” court - established via a UN-backed Article 93 agreement between the TNC and the ICC - would better fit the purpose of combating impunity in the CAR.
*Luigi Prosperi is a post-doctoral fellow at Political Science Department of Sapienza University of Rome. He is a member of the LUISS Guido Carli Research Centre on International and European Organisation. He's also an editor of "Rivista OIDU", which is the online journal of the Sapienza PhD Programme on "International legal order and human rights" (which he completed in 2013).
Lead image: Giuseppe La Micela is an Italian cartoonist who works for Cartoon Movement.