DOCSLIB.ORG

The Special Criminal Court and Other Options of Accountability in the Central African Republic: Legal and Policy

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Special Criminal Court and Other Options of Accountability in the Central African Republic: Legal and Policy Occasional Paper No.2 The Special Criminal Court and Other Options Of Accountability in the Central African Republic: Legal and Policy Recommendations by Godfrey M Musila Occasional Paper No. 2 The Special Criminal Court and Other Options of Accountability in the Central African Republic: Legal and Policy Recommendations By Godfrey M Musila International Nuremberg Principles Academy Imprint About the International Nuremberg Principles Academy The International Nuremberg Principles Academy (Nuremberg Academy) is a foundation dedicated to the advancement of international criminal law. It is located in Nuremberg, the birthplace of modern international criminal law, and is conceived as a forum for the discussion of contemporary issues in the field. The mission of the Nuremberg Academy is to promote the universality, legality and acceptance of international criminal law. The foundation´s main fields of activity include interdisciplinary research, trainings and consultant services specially tailored to target groups, and human rights education. The Nuremberg Academy places a special focus on the cooperation with countries and societies currently facing challenges related to international criminal law. The Nuremberg Academy was founded by the German Foreign Office, the Free State of Bavaria and the City of Nuremberg. About the Author Dr. Musila was the Head of International Criminal Law Research at the International Nuremberg Principles Academy. He has worked extensively on ICL and transitional justice matters in Africa. He was the first Director of Research and Policy on the Kenyan Truth and Reconciliation Commission (TJRC) and in 2014 served as Lead Researcher on the African Union’s Commission of Inquiry on South Sudan (AUCISS). Email: [email protected]. The opinions expressed in this publication are solely those of the author and do not necessarily reflect the views of the International Nuremberg Principles Academy. International Nuremberg Principles Academy Egidienplatz 23 90403 Nuremberg Tel + 49 911 231 10379 Fax + 49 911 231 14020 [email protected] www.nurembergacademy.org © 2016 International Nuremberg Principles i International Nuremberg Principles Academy Table of Contents Imprint………………………………………………………………………………………………………………………………... i Table of Contents ....................................................................................................................... ii List of Abbreviations .................................................................................................................iv Abstract ...................................................................................................................................... 1 1. Introduction ........................................................................................................................ 1 2. Conceptual Framework ....................................................................................................... 2 2.1 RtoP as Theoretical Framework..................................................................................3 2.2 Transitional Justice as Theoretical Framework ........................................................... 5 3. Background to the Conflict and Key Actors ........................................................................ 5 4. Overview of Alleged Crimes and Human Rights Violations ................................................ 7 5. Proposed and Current Options for Justice and Accountability ........................................ 10 5.1 RtoP in Action: An Overview of Interventions in the CAR ......................................... 11 5.2 The International Criminal Court: A Review and Prospects ...................................... 13 5.3 The Relationship between the ICC and the SCC ........................................................ 13 5.4 Special Criminal Court (Hybrid Court): A Review of Legislation ................................ 15 5.4.1 Subject Matter Jurisdiction ................................................................................ 15 5.4.1.1 Charging Torture ......................................................................................... 18 5.4.1.2 Temporal and Territorial Jurisdiction.......................................................... 19 5.4.2 Institutions and Structures of the SCC ............................................................... 19 5.4.2.1 Chambre d’Instruction ................................................................................ 20 5.4.2.2 Chambre d’Accusation Spéciale .................................................................. 21 5.4.2.3 Chambre d’Assises ...................................................................................... 21 5.4.2.4 Chambre d’Appel ........................................................................................ 22 5.4.2.5 Procureur Special ........................................................................................ 22 5.4.2.6 Greffe .......................................................................................................... 22 5.5 The Structure of the Court ......................................................................................... 23 5.6 Sources of Law and Procedure for SCC ...................................................................... 23 5.7 The Rights of Victims and Witnesses ......................................................................... 24 ii International Nuremberg Principles Academy 5.8 Other National Courts as Option for Prosecution ..................................................... 26 5.9 Truth, Justice and Reconciliation Commission .......................................................... 27 5.10 Envisioning a Role for Traditional Justice .................................................................. 29 6. The Role of the International Community ........................................................................ 31 6.1 Interventions Relating to Accountability ................................................................... 32 6.2 MINUSCA and the SCC ............................................................................................... 33 7. Conclusion: Findings and Recommendations ................................................................... 34 7.1 Findings ...................................................................................................................... 34 7.2 Policy Recommendations .......................................................................................... 35 7.2.1 On Intervention Generally .................................................................................. 35 7.2.2 On the Special Criminal Court ............................................................................ 36 7.2.2.1 On Subject Matter Jurisdiction of the SCC .................................................. 36 7.2.2.2 On Temporal Jurisdiction ............................................................................ 36 7.2.2.3 On Structure and Procedure for the SCC .................................................... 37 7.2.2.4 On the Rights of the Defence ...................................................................... 37 7.2.2.5 On the Relationship between SCC and National Courts ............................. 38 7.2.3 On Complementarity and the Relationship between SCC and ICC .................... 38 7.2.4 On Mutual Legal Assistance ............................................................................... 40 7.2.5 On Investigations, Technical Assistance and the Role of MINUSCA .................. 40 7.2.6 On Victims’ Rights and Witnesses ...................................................................... 41 7.2.7 On Traditional Justice and Conflict Resolution Mechanisms ............................. 42 7.2.8 On the Role of the International Community .................................................... 42 Bibliography .............................................................................................................................. 44 iii International Nuremberg Principles Academy List of Abbreviations AU African Union (AU) BINUCA Integrated Peace Building Office in the Central African Republic CAR Central African Republic CAVR Commission centrafricaine de vérité et réconciliation DDR Disarmament, demobilization and reintegration DRC Democratic Republic of the Congo (DRC) ECCAs Economic Community of Central African States EU European Union EUFOR European Force FOMUC Multinational Force in Central African Republic ICC International Criminal Court ICGLR International Conference on the Great Lakes ICICR International Commission of Inquiry on Central African Republic MICOPAX Mission de consolidation de la paix en Afrique Centrale MINUSCA United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic MISCA Mission internationale de soutien en Centrafrique MLA Mutual Legal Assistance MLC Mouvement de libération du Congo LRA Lord’s Resistance Army OTP Office of the Prosecutor RtoP Responsibility to Protect SCC Special Criminal Court SGBV Sexual and Gender-Based Violence UN United Nations UNDP United Nations Development Programme UNGA United Nations General Assembly UNSC United Nations Security Council UNSG United Nations Secretary General UPDF Ugandan Peoples Defence Forces RTF Regional task Force iv International Nuremberg Principles Academy The Special Criminal Court and Accountability in the Central African Republic: Legal and Policy Recommendations Abstract This paper examines
Load more

Recommended publications
  • The Ebb and Flow of the Criminal Jury in France and Belgium
    University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 2018 Trials by Peers: The bbE and Flow of the Criminal Jury in France and Belgium Claire M. Germain University of Florida Levin College of Law, [email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Comparative and Foreign Law Commons, and the Criminal Law Commons Recommended Citation Claire M. Germain, Trials by Peers: The Ebb and Flow of the Criminal Jury in France and Belgium, in Juries, Lay Judges, and Mixed Courts: A Global Perspective (Sanja Kutnjak Ivković et al., eds., Cambridge University Press, forthcoming 2019). This Book Chapter is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. Trials by Peers: The Ebb and Flow of the Criminal Jury in France and Belgium Claire M. Germain1 Abstract The participation of lay jurors in criminal courts has known much ebb and flow both in France and in Belgium. These two countries belong to the civil law tradition, where juries are the exception rather than the rule in criminal trials, and they only exist in criminal cases, not civil cases. In spite of some similarities, there are substantial differences between the two countries, and their systems will be examined in turn. In France, the Cour d’assises itself was inherited from the French Revolution.
    [Show full text]
  • Nonadversarial Justice: the French Experience Edward A
    Maryland Law Review Volume 42 | Issue 1 Article 9 Nonadversarial Justice: the French Experience Edward A. Tomlinson Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Criminal Procedure Commons Recommended Citation Edward A. Tomlinson, Nonadversarial Justice: the French Experience, 42 Md. L. Rev. 131 (1983) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol42/iss1/9 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. NONADVERSARIAL JUSTICE: THE FRENCH EXPERIENCE EDWARD A. TOMLINSON* TABLE OF CONTENTS I. THE FRENCH CRIMINAL JUSTICE SYSTEM - AN O VERVIEW ................................................ 134 A. Basic Characteristics.................................. 134 - B. The Ideology of French CriminalJustice .............. 136 C. The Categories of Offenses ............................ 141 II. THE INVESTIGATION AND PROSECUTION OF OFFENSES IN F RA N CE ................................................... 146 A. The Office of the Prosecutor .......................... 146 B. Limitations on ProsecutorialPower .................... 147 C. The Decline of the Examining Magistrate ............. 150 D. The Rise of the Police's Investigatory Authority ....... 156 E. The Prosecutor'sDominant Role ...................... 161 III. THE RIGHTS OF THE INDIVIDUAL
    [Show full text]
  • Inquisitorial" Systems: France, Italy, and Germany*
    The Myth of Judicial Supervision in Three "Inquisitorial" Systems: France, Italy, and Germany* Abraham S. Goldsteint and Martin Marcus++ American criminal justice is characterized by the broad discretion of police and prosecutor and by an overwhelming reliance on the guilty plea. Discretion is said to be both inevitable and desirable, especially when it is exercised by the prosecutor.' Through his power .to de- termine the number and nature of criminal charges, the prosecutor is able to manage a heavy caseload with existing resources, to reconcile general criminal statutes with mitigating factors in particular cases, and to establish priorities among offenders, offenses, and law enforce- ment strategies. The principal mechanism that enables the prosecutor to achieve these objectives, and to gain the defendant's cooperation in doing so, is the guilty plea. Especially in "plea bargaining" and in the dismissals and charge reductions associated with it, prosecutor and defendant are said to join in minimizing contentiousness and im- proving "the quality of justice" by limiting trials to "real disputes."' A rich body of literature has demonstrated that criminal laws are regularly stretched or disregarded by police and prosecutors as they * Copyright @ 1977 by Abraham S. Goldstein. The research for this article was sup- ported in part by a grant from the National Science Foundation. Much of it was written during the period in 1975-76 when A. Goldstein was a Guggenheim Fellow. The authors are deeply grateful to the following persons for their generous assistance in arranging interviews and in providing advice and criticism. The conclusions, however, are those of the authors.
    [Show full text]
  • Comparative Criminal Procedure: Germany 159 (1977))
    The Yale Law Journal Volume 87, Number 8, July 1978 Continental Criminal Procedure: "Myth" and Reality John H. Langbeint and Lloyd L. Weinreb In a recent issue of this Journal, Professor Abraham Goldstein and Research Fellow Martin Marcus discussed their observations about the criminal procedures of three European countries, France, Germany, and Italy, as representative of the "Continental" or "inquisitorial" model of investigation and prosecution.' Their inquiry was prompted, they said, by a desire to probe claims that in those countries the extreme form of prosecutorial discretion that produces plea bargaining and pervasive reliance on guilty pleas in the United States is avoided by greater judicial control and supervision of the process. They were con- cerned also to find out to what extent judicial supervision of the in- vestigation of crime obviates our after-the-fact efforts to deter official abuses by the exclusion of evidence unlawfully obtained.2 Their con- clusions are summarized in the title of their article: "Judicial super- vision" is a "myth." The claim that Continental systems of criminal procedure adhere to a rule of law more strictly than ours is based not on fact but on "ideology" and "the assumption that officials adhere to the ideology." 3 The prosecutor and, in their sphere, the police are dominant in Europe as they are here; judicial responsibility is mostly "reactive" to the primary roles played by other officials.4 The authors advise that we Americans be skeptical and cautious about borrowing from the models they describe. We believe that Goldstein and Marcus have misinterpreted the most t Professor of Law, The University of Chicago.
    [Show full text]
  • The French Prosecutor in Question, 67 Wash
    Washington and Lee Law Review Volume 67 | Issue 4 Article 5 Fall 9-1-2010 The rF ench Prosecutor in Question Jacqueline S. Hodgson Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Comparative and Foreign Law Commons, Criminal Law Commons, and the Criminal Procedure Commons Recommended Citation Jacqueline S. Hodgson, The French Prosecutor in Question, 67 Wash. & Lee L. Rev. 1361 (2010), https://scholarlycommons.law.wlu.edu/wlulr/vol67/iss4/5 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. The French Prosecutor in Question Jacqueline S. Hodgson * Abstract Both the pre-trial and dispositive roles of the French prosecutor have continued to expand over the last decades with a resulting shift in power away from the trial judge and the juge d'instruction. The recommendations of the Liger Commission in 2009 went beyond the redistribution of authority and proposed the abolition of the juge d'instruction, placing the prosecutor in charge of all criminal investigations, even the most serious, complex, and sensitive. At the same time, the prosecutor's role and status has been challenged in a number of ways-in particular concerning her function as judicial supervisor of the detention and interrogation of suspects in the garde A vue. The case of Medvedyev v.
    [Show full text]
  • Continental Criminal Procedure: "Myth" and Reality
    The Yale Law Journal Volume 87, Number 8, July 1978 Continental Criminal Procedure: "Myth" and Reality John H. Langbeint and Lloyd L. Weinreb In a recent issue of this Journal, Professor Abraham Goldstein and Research Fellow Martin Marcus discussed their observations about the criminal procedures of three European countries, France, Germany, and Italy, as representative of the "Continental" or "inquisitorial" model of investigation and prosecution.' Their inquiry was prompted, they said, by a desire to probe claims that in those countries the extreme form of prosecutorial discretion that produces plea bargaining and pervasive reliance on guilty pleas in the United States is avoided by greater judicial control and supervision of the process. They were con- cerned also to find out to what extent judicial supervision of the in- vestigation of crime obviates our after-the-fact efforts to deter official abuses by the exclusion of evidence unlawfully obtained.2 Their con- clusions are summarized in the title of their article: "Judicial super- vision" is a "myth." The claim that Continental systems of criminal procedure adhere to a rule of law more strictly than ours is based not on fact but on "ideology" and "the assumption that officials adhere to the ideology." 3 The prosecutor and, in their sphere, the police are dominant in Europe as they are here; judicial responsibility is mostly "reactive" to the primary roles played by other officials.4 The authors advise that we Americans be skeptical and cautious about borrowing from the models they describe. We believe that Goldstein and Marcus have misinterpreted the most t Professor of Law, The University of Chicago.
    [Show full text]
  • Administration of Criminal Justice in France: an Introductory Analysis George W
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Louisiana State University: DigitalCommons @ LSU Law Center Louisiana Law Review Volume 23 | Number 1 Louisiana Legislation of 1962: A Symposium December 1962 Administration of Criminal Justice in France: An Introductory Analysis George W. Pugh Repository Citation George W. Pugh, Administration of Criminal Justice in France: An Introductory Analysis, 23 La. L. Rev. (1962) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol23/iss1/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. LOUISIANA Volume XXIII December, 1962 LAW REVIEW Number 1 ADMINISTRATION OF CRIMINAL JUSTICE IN FRANCE: AN INTRODUCTORY ANALYSIS George W. Pugh* A system for administering criminal justice is a detailed tap- estry woven of many varied threads. It is often difficult to understand the nature and significance of any particular fiber without at least a general appreciation of the function of other threads, and also a realization of the impact of the whole. This is certainly true of the French system. An attempt at a comparative study of another procedural system is fraught with difficulty, for one becomes so accustomed to his own procedural patterns that he is tempted to make un- warranted translations in terms of his own institutional frame of reference. Comparative evaluation of a procedural device, on the other hand, is even more difficult, for it involves at least two aspects: whether the device functions satisfactorily in its own institutional setting, and whether utilization of the mechanism in the context of another given system would be feasible or desirable.
    [Show full text]
  • Plea Bargaining, Conviction Without Trial, and the Global Administratization of Criminal Convictions
    CR04CH01_Langer ARjats.cls May 12, 2020 8:1 Annual Review of Criminology Plea Bargaining, Conviction Without Trial, and the Global Administratization of Criminal Convictions Máximo Langer School of Law, University of California, Los Angeles, California 90095, USA; email: [email protected] Annu. Rev. Criminol. 2021. 4:1.1–1.35 Keywords The Annual Review of Criminology is online at comparative criminal justice, plea bargaining, conviction without trial, criminol.annualreviews.org criminal convictions, police and prosecutors, administratization https://doi.org/10.1146/annurev-criminol-032317- 092255 Abstract Copyright © 2021 by Annual Reviews. This article documents the diffusion of plea bargaining and other mech- All rights reserved anisms to reach criminal convictions without a trial and argues that their spread implies what this article terms an administratization of criminal con- victions in many corners of the world. Criminal convictions have been ad- ministratized in two ways: (a) Trial-avoiding mechanisms have given a larger role to nonjudicature, administrative officials in the determination of who gets convicted and for which crimes, and (b) these decisions are made in proceedings that do not include a trial with its attached defendants’ rights. The article also proposes a way this phenomenon could be quantitatively measured by articulating the rate of administratization of criminal convic- tions, a metric to allow for comparison among different jurisdictions. The article then presents cross-national data from 26 jurisdictions on their rate of administratization of criminal convictions and different hypotheses that may help explain variation across jurisdictions on this rate. 1.1 CR04CH01_Langer ARjats.cls May 12, 2020 8:1 INTRODUCTION Plea bargaining and related mechanisms have been spreading around the world in the past few decades (Fair Trials 2017, Langer 2004, Thaman 2010b, Turner 2009).
    [Show full text]
  • Distr. RESTRICTED */ CCPR/C/45/D
    Distr. RESTRICTED */ CCPR/C/45/D/393/1990 27 July 1992 ENGLISH Original: ENGLISH/FRENCH HUMAN RIGHTS COMMITTEE Forty-fifth session DECISIONS Communication No. 393/1990 Submitted by : A.C. Alleged victim : The author State party : France Date of communication : 16 March 1990 (initial submission) Documentation references : Prior decisions - Special Rapporteur's rule 91 decision, transmitted to the State party on 30 July 1990 (not issued in document form) Date of present decision : 21 July 1992 Decision on admissibility [See Annex] __________ CCPR/C/45/D/393/1990 Annex English Page 2 */ All persons handling this document are requested to respect and observe its confidential nature. DEC393.45 cm CCPR/C/45/D/393/1990 Annex English Page 1 ANNEX **/ Decision of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights - Forty-fifth session - concerning Communication No. 393/1990 Submitted by : A.C. [name deleted] Alleged victim : The author State party : France Date of communication : 16 March 1990 (initial submission) The Human Rights Committee , established under article 28 of the International Covenant on Civil and Political Rights, Meeting on 21 July 1992, Adopts the following: Decision on admissibility 1. The author of the communication is A.C., a French citizen born in 1940, currently residing in Paris. He claims to be a victim of a violation of his human rights by France. While not specifically invoking any provisions of the International Covenant on Civil and Political Rights, it appears from the context of his submissions that he claims to be a victim of violations of article 14 of the Covenant.
    [Show full text]
  • Due Process in Criminal Procedure: a Comparison of Two Systems
    OHIO STATE LAW JOURNAL Volume 21 Autumn 1960 Number 4 COMPARATIVE CONSTITUTIONAL LAW DUE PROCESS IN CRIMINAL PROCEDURE: A COMPARISON OF TWO SYSTEMS JOSEPH M. SNEE, S.J.* AND A. KENNETH PYEI The initial problem facing the lawyer who attempts to compare the criminal procedure of his own country with that of other nations is the way in which to approach the study of so complex a subject. Too often in the past, the assumption has been made that a meaningful result can be obtained by comparing the language of the statutes or constitutional provisions of one country with those of another and concluding that when the language is the same, the law is the same, and where the language is different, the law is different. The chief advantage of such a comparison is in its simplicity, in that the only variables are the differences in language or the omission of provi- sions in the law of one nation which is found in the law of another. The overwhelming disadvantage is that such a study often results in misleading conclusions as to the extent of similarities or differences. The first step in a comparison of laws must be a determination of what the law of one nation is in order that the laws of other nations may be compared with it. This in itself imposes a substantial problem when such a broad field as criminal procedure is the subject of study. There are obviously substantial differences between criminal procedure in our federal courts and the systems of procedure followed in many of the courts of our fifty states.
    [Show full text]
  • Download the Chapter About Pro Bono Practices and Opportunities in France
    Pro Bono Practices and Opportunities in France INTRODUCTION France has a long-standing tradition of providing legal aid to indigent clients. This can mainly be explained by the strong support of the welfare state in France. As a result, and given the strict restrictions on advertising until 2014, pro bono has not yet reached the same level of popularity as in Anglo-Saxon countries. Pro bono practice has however experienced rapid development in the last decade thanks to various kinds of private initiatives and to the involvement of the French Bar and specifically the Paris Bar. OVERVIEW OF THE LEGAL SYSTEM The Justice System The Constitution and Governing Laws The current French Constitution was adopted in 1958 and established the French Vth Republic, a democracy based on the separation of powers. Its preamble directly refers to three other fundamental texts: the Declaration of the Rights of Man and of Citizens of 1789, the 1946 French Constitution’s preamble, and the Environment Charter of 2004. These four texts constitute the so-called the Body of Constitutional Rules (Bloc de Constitutionnalité), the French supreme standard with which each law must comply. In order to safeguard French fundamental principles, the Constitutional Council (Conseil Constitutionnel) was created in 1958 to review the constitutionality of the law. In order to do so, two means are at its disposal: the Constitutional Council can conduct an advanced verification of the law before the law is enacted following a referral from the President of the Republic, the Prime Minister or by 60 deputies or 60 senators. Since 2008, the Constitutional Council can also undertake its verification once the law has been enacted through the Question Prioritaire de Constitutionnalité procedure.
    [Show full text]
  • (The Judiciary in France
    ( The Judiciary in France (The Judiciary in France An essential prerogative of state sovereignty, the Judiciary has a fundamental role, namely ensuring that laws are complied with and that the rights of each individual are protected. While remaining firmly rooted in its founding principles such as equality, impartiality and independence, the Judiciary has shown itself capable of adapting to changes in society. The Judiciary is now closer to the people, it handles proceedings more efficiently and is more open to modern society. From the Chancellor to the Keeper The figure of the King judge is a strong symbol. As the King was The history of the Judiciary in France of the Seals, Minister of Justice ( believed to derive his power from God, he was expected to From divine origins to a system administered by the state administer justice fairly and quickly. Louis IX, better known as Saint Chancellors or Keepers of the Seals were dignitaries Louis, was a prime example in this respect. His reputation for saint- of the crown from the 5th century. Their roles were liness and fairness has come down to us through the centuries. sometimes combined and sometimes split. Having become the King’s most important officer in 1627, the Because it was impossible for the King to render justice personally Chancellor was entrusted with the seal, which was the for all the subjects of the kingdom, he was forced to delegate his symbol of royal power. He oversaw and sealed royal documents and chaired meetings of the King’s council. Throughout history, the French Judiciary has always changed in line powers.
    [Show full text]