Ending impunity and seeking reconciliation in the Central African Republic: Role of Transitional Justice
Author: Tsunetaka Tsuchiya
Translated to Spanish by Florencia Prieto
The Central African Republic (CAR) has been suffering from long-lasting conflicts and is now required to establish the rule of law through Transitional Justice. Transitional justice is for the recovery of countries devastated by conflict. The United Nations describes Transitional Justice as ‘the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses.’ (United Nations General Assembly Human Rights Council, 2014) and it includes judicial and non-judicial mechanisms, such as the prosecution of perpetrators through national, international or a hybrid justice system, and the Truth and Reconciliation Commission. Then, what kind of efforts have been made to establish transitional justice in the CAR? Which system works well in the context of CAR’s complex conflicts?
Context of conflict in CAR
The conflict in the CAR is a long-term crisis caused by sporadic violence and the disintegration of the state, due to deep divisions between social and ethnic groups. The conflict started in 2004 after François Bozizé became president in 2003. Several rebel groups were engaged in the conflict and committed crimes during this period. After the failure of several peace agreements, the Global Peace Agreement was finally signed by major rebel groups and the government in 2008. Between 2003-2008, a number of war crimes were committed by the national army and rebel groups, such as summary executions, recruitment of child soldiers, rape and gender-based violence (Human Rigths Watch, 2007).
After ten years of Bozizé’s regime, another conflict began in 2012 which was instigated by a rebel group called Seleka, founded by members of the Muslim faith (a minority in CAR). Seleka took control of the government in May 2013, and violence perpetrated by the Seleka militia began against Christian communities. In response to the violence, Christian-led armed groups called Anti-Balaka were formed and armed conflicts between Seleka and Anti-Balaka spread throughout the country. Following the resignation of President Michel Djotodia, who was the leader of Seleka in 2013, ongoing widespread violence and reprisal attacks plunged the country into an unprecedented civil conflict. Attacks against the civilian population continued, despite the signing of the Libreville Agreement on the cessation of hostilities and the establishment of a transitional authority on 11 January, 2013.
The Anti-Balaka responded to the Seleka violence. For two years, executions, armed theft, rape, looting and other criminal acts brought massive population displacements, the breakdown of the fragile state, and the quasi-total paralysis of the economy. The impact of the crisis was most visible in the humanitarian impact that left 621,000 internally displaced, 572,000 refugees, who fled to neighbouring countries, and 2.5 million in need of humanitarian assistance (OCHA, 2018).
Although Seleka stepped down from power in January 2014, following the formation of the National Transitional Council and an African Union stabilisation force and a French peace-keeping mission, the security situation remained volatile. After the peace agreement in Brazzaville, the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) opened up a peace-keeping and peace-making process. In February 2019, the government finally concluded a peace agreement with 14 armed groups.
Transitional Justice in CAR
In such context, several types of transitional justice are proposed. According to the International Center of Transitional Justice (ICTJ), the aim of Transitional Justice is ‘the recognition of the dignity of individuals, the redress and acknowledgment of violations, and the aim to prevent them from happening again’ (The International Center of Transitional Justice, 2020). Consequently, transitional justice incorporates four types of approach: Criminal prosecutions, Truth-seeking, Reparations and Reform. Prosecution is important to punish perpetrators and to combat impunity in the long-term, but in the context of the post-conflict, other strategies are also indispensable for establishing the rule of law. Amnesty, awarded in the process of truth-seeking, can be another way of re-establishing peaceful cohabitation of the community after mass atrocities between different groups, such as religious or ethnic groups. While the International Criminal Court, Hybrid Court, Ad-hoc Court and Domestic Court aim at prosecuting perpetrators within the formal justice system, less formal community justice organisations such as the Gacaca Court of Rwanda and truth and reconciliation committees installed in South Africa, Liberia and Siera Leone bring solutions more rapidly than formal tribunals. The Gacaca of Rwanda, for example, played an important role in accelerating genocide trials which would have taken 200 years if perpetrators were prosecuted by the formal justice system (Herrmann, 2012).
In CAR, all possible measures have been taken so far by national and international communities to try to establish the rule of law and peace.
1. International Criminal Court (ICC)
The ICC is the international justice structure which can prosecute and judge perpetrators of genocide, crimes against humanity, and war crimes when states are unwilling or unable to prosecute them. Any person who commits war crimes and other violations of the Rome Statute can be referred to the ICC. In 2009, CAR’s Court of Appeal admitted that they were not able to bring investigations and prosecutions of war criminals and that an international tribunal was the only way to address their impunity (ICC, 2010). The ICC started an investigation of Mr. Jean-Pierre Bemba, former Vice president of the Democratic Republic of Congo; he was prosecuted for war crimes and crimes against humanity but was finally acquitted (ICC, 2018). In addition to Jean-Pierre Bemba, two former chiefs of militias, Patrice-Edouard Ngaissona and Alfred Yekatom, leaders of the Anti-Balaka, were suspected of involvement in war crimes and crimes against humanity including torture, persecution, and recruitment of child soldiers during the second conflict. They were referred to the ICC but the ICC has not yet announced whether or not it will open a trial.
2. Special Criminal Court (SCC)
The SCC was created by domestic law of the CAR on 3 June 2015. The SCC has a national jurisdiction that operates within the domestic justice system and covers crimes committed since 2003 (Government of CAR, 2015). It is a hybrid court that has both international and national magistrates and prosecutors. The United Nations supports the SCC through the PKO mission (MINUSCA) and UNDP (UNDP, 2017). Since official inauguration in June 2017, investigations of three cases have started but no arrest warrants have been issued. The SCC prosecutes serious violations of human rights and international humanitarian law, in particular the crime of genocide, crimes against humanity and war crimes, but also a broader range of violations of human rights including economic, social, and cultural violations (Government of CAR, 2015). In addition, violations of non-international crimes such as isolated acts of rape (not part of a widespread or systematic attack) are included (ibid).
3. Domestic judicial system
The national justice structure has a very limited capacity in CAR. Shortage of legal personnel is a serious problem. Only 163 magistrates and 113 lawyers were registered in 2017 (Amnesty International, 2017). Few magistrates and only one lawyer are based outside Bangui, the capital of CAR. This leads to a lack of deployment of legal personnel and problems protecting witnesses and plaintiffs (ibid), as rebel groups still hold most of the territory in CAR. In addition, the lack of prisons and reduced capacity of legal personnel because of a lack of training are also huge challenges to establishing the rule of law in CAR.
Against this background, the domestic court began trials of perpetrators of war criminals. Abdoulaye Alkali-Saïd, one of the senior chiefs of Seleka engaged in the coup d’état in 2013, was tried before the criminal court (Grihot, 2019). Other cases are also being referred to the domestic criminal court.
4. Truth, Justice, Reconciliation and Reparations Commission (TJRRC)
The TJRRC was recently confirmed by law on 7th April 2020. The mandate of the TJRRC is ‘to develop a reparation system in order to achieve a cessation of hostilities and a definitive end to the multi-faceted violence in our country’ (Bouessel, 2019). Before the TJRRC, the Truth and Reconciliation Commission (TRC) was launched in 2003 under Bozizé’s administration and closed after two years. The TRC did not achieve its initial objectives such as ‘establishing a precise account of the facts that have plagued Central African society from the 1960s to the present day’ and ‘promoting understanding and genuine national reconciliation’ (Picco, 2020). It submitted a final report which recommended continuing hearings to seek funds for reparations and prepare an amnesty law (ibid). The failure of the TRC stems from a lack of funds and lack of political will, as the TRC was not given the authority to investigate Bozizé’s military for serious human rights violations. Meanwhile, the TJRRC was established with a more participatory process, as it was proposed during the National Reconciliation Forum in Bangui with 600 representatives of senior leaders of political parties, rebel groups and civil societies of CAR. However, the Forum became a political movement for the negotiation of peace agreements and a tool to grant amnesty to certain rebel groups. This was because the rebel groups were too powerful for the government; the government was forced to create commissions rather than enforce the law through the formal judicial system because rebel groups wanted to avoid being indicted. It is therefore uncertain whether the TJRRC can play an important role in transitional justice.
As rebel groups are still active in the territory, the government and international community are trying to establish transitional justice through the range of mechanisms described above. Section 5 will critically analyze which mechanisms are appropriate to CAR and why.
Analysis of transitional justice in CAR
Boraine and Valentine (2005) analyzed how post-conflict states should combine judicial structures to re-establish the rule of law by promoting peace and reconciliation and assert that five pillars are necessary to ensure a holistic approach: accountability, truth recovery, reconciliation, reparations, and institutional reform. The following section examines these five dimensions.
1. The ICC
The ICC has a high degree of accountability, as its objective is to punish perpetrators of grave human rights violations (Hermann, 2012). The ICC also oversees truth recovery but to a lesser extent than the SCC, as not as many witnesses can be present at the Hague and therefore not as many cases are treated. Victims hold the right to seek reparation before the ICC (ICC, 2013) but the acquittal of Bemba because of procedural errors disappointed victims in CAR and therefore reparation has not yet been achieved.
The ICC also contributes to the reform of the national judicial structure by exchanging ideas with national counterparts. However, as the SCC is better positioned to develop the technical capacity of national judicial structures and contributes to reform more directly, the ICC is not the main actor for the reform. The weakness of the ICC is reconciliation. In the case of CAR, any Seleka chiefs who are alleged to have committed war crimes have not been prosecuted. In addition, the ICC is always controversial in African states and therefore its decisions may divide communities, rather than promoting reconciliation.
2. The SCC
The SCC is a hybrid court and therefore it contributes significantly to the reform of the justice system in CAR. The SCC has a mandate of promoting justice in CAR (Government of CAR, 2015), and consequently, it carries out many sensitization campaigns in communities. People have better knowledge on access to justice thanks to the SCC. This contributes not only to institutional reform but also truth recovery, as access to justice increases and more witnesses can be found. Generally, a hybrid court also has significant accountability, as international judges and prosecutors who are independent from the government are involved. With regard to reparation, the SCC covers not only war crimes and crimes against humanity but also economic and cultural rights violations. Conventional transitional justice has been criticized because it only concerns civil and political rights (Schmid, 2014). Therefore, the SCC can be considered one of the most comprehensive courts for human rights violations during conflicts. The SCC also has jurisdiction over violations of non-international crimes such as isolated acts of rape (not part of the widespread or systematic attack). Therefore, the SCC’s wide-ranging jurisdiction contributes to reparations. Reconciliation is not as important an aim as it is in the ICC but, by ensuring access to justice, the SCC can perform better than ICC in this regard.
3. Domestic tribunals
Domestic tribunals complement the roles of both the ICC and the SCC. The domestic tribunals are less accountable in this respect than SCC and ICC but can treat more cases the ICC and the SCC. The ISS and SCC only concern Anti-Balaka leaders at present. Domestic tribunals try to investigate Seleka leaders in an attempt to contribute to balance between two groups. However, their weak capacity affects their mandate and consequently it is not realistic to expect much progress from domestic tribunals.
4. The TJRRC
The TJRRC has a clear mandate to support the reparation of victims through truth-seeking. This means that, instead of condemning perpetrators, the government will provide reparation to victims but the funding must come from the international community. Defendants are more inclined to tell the truth if they are guaranteed amnesty and if they do not need to pay reparation to victims. The TJRRC may also contribute to reconciliation, as it provides the mechanisms through which reconciliation can be achieved. However, the TJRRC does not contribute to accountability and institutional reform.
While the SCC is strongly supported by the United Nations and Western countries, the TJRRC is supported by the African Union. The African Union takes a more politically-oriented approach while the United Nations and Western countries prioritize establishing the rule of law. Western countries seek accountability and institutional reform while African states prefer reconciliation. Both believe that their approach will achieve truth recovery and reparation. The CAR is in the middle and seeks the support of both sides.
By examining transitional justice with its five elements, the SCC seems the most appropriate for CAR, as it covers all five elements if it functions well. If it can avoid too much political intervention, the TJRRC is also important. The SCC’s concern is the aspect of reconciliation. If the SCC continues to investigate only Anti-Balaka chiefs, it will create a split in the country. However, the prosecution of Seleka leaders is also politically sensitive, as it concerns neighboring countries, which are alleged to support Seleka. If the SCC can ensure its funding, it will not be necessary to bring cases to the ICC. Nevertheless, the formal justice system faces difficulties in being able to investigate thoroughly if rebel groups maintain their power in their territories. This is why the TJRRC is expected to play an important role in achieving reconciliation between armed groups, leading eventually to their disarmament and demobilization. Domestic tribunals need more technical, financial, and human capacity to carry out trials and there is some way to go before this is possible. The effort of transitional justice has just started in CAR and the development of the SCC and TJRRC must be key for the establishment of rule of law and lasting peace.
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Tsunetaka Tsuchiya holds Master’s degree in International Development from the University of Manchester and is also an online Master’s candidate in Sustainable Peace in the Contemporary World at the University for Peace. He is working for the United Nations Development Programme (UNDP) in the Central African Republic as Programme Specialist. All views expressed in this article are his own and do not represent the opinion of the organization to which he belongs.