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Florent Geel, Stephen Rapp, Christian Londoumon, Patryk L. Labuda, Fabrizio Hochschild, Sof a Candeias and Netsanet Belay

SIDE EVENT STRENGTHENING THE CENTRAL AFRICAN REPUBLIC’S JUSTICE SYSTEM AND OPERATIONALISING THE SPECIAL CRIMINAL COURT

16 NOVEMBER 2016 HOTEL SILKEN BERLAYMONT | BRUSSELS Roundtable Report

SIDE EVENT CENTRAL AFRICAN REPUBLIC STRENGTHENING THE CENTRAL AFRICAN REPUBLIC’S JUSTICE SYSTEM AND OPERATIONALISING THE SPECIAL CRIMINAL COURT

16 NOVEMBER 2016 HOTEL SILKEN BERLAYMONT | BRUSSELS

EXECUTIVE SUMMARY especially the UN’s Multidimensional play in restoring peace and security in the Integrated Stabilisation Mission in the CAR. He concluded by reiterating the CAR On 16 November 2016, the Wayamo Central African Republic (MINUSCA). Held government’s f rm commitment to the f ght Foundation, the International Nuremberg on the sidelines of the against impunity. Principles Academy and the Africa Group (EU)’s donor conference on the CAR, the Speaking on behalf of Hassan Bubacar for Justice and Accountability (AGJA) co- roundtable helped clarify the most pressing Jallow, AGJA member and former Chief Flavien Mbata, Justice of the Central African Republic hosted a roundtable in Brussels, . needs of the country’s government and the of the International Criminal Entitled “Strengthening the Central type of technical and f nancial assistance Tribunal for , Didier Preira – African Republic’s justice system and that the international community could AGJA expert consultant – welcomed operationalising the Special Criminal Court”, provide to the national justice sector. the CAR government’s continuing efforts DETAILED REPORT to establish the SCC and encouraged it the event afforded an opportunity to crimes and crimes against humanity. Justice, rights, ensuring development, providing “Justice for serious crimes is necessary for to take advantage of the conference INTRODUCTION discuss recent developments in the region he stressed, would be a strong signal that justice, and guaranteeing investment. The sustainable peace in the Central African to accelerate the hybrid court’s and challenges facing the national justice The side event was opened by Bettina there would be no more tolerance for serious plan included 5 main components: Republic,” said the . “The operationalisation. system, and the proposed Special Criminal Ambach, Director of the Wayamo crimes. 1) operationalising the SCC; f ght against impunity is a means of ensuring The roundtable brought together a variety Court (SCC) in particular. Foundation, and Klaus Rackwitz, Director 2) rehabilitating the penitentiary and national reconciliation, which would break of perspectives. Netsanet Belay of Amnesty Inaugurated by the Minister of Justice of of the International Nuremberg Principles The Minister noted that the justice system faced corrections system; with past practices that encouraged chaos International and Florent Geel of the the Central African Republic (CAR), Flavien Academy, who explained their organisations’ a wide range of problems in the shape 3) equipping the judicial services; and violence.” In his keynote address, the International Federation for Human Rights, Mbata, the roundtable brought together respective mandates and how they related of damaged or destroyed infrastructures, 4) protecting human rights and establishing Minister discussed various challenges facing laid stress on the importance of victim CAR government and judicial off cials, to the CAR government’s efforts to combat particularly court buildings, off ces and prisons, a national human rights commission; and, the justice sector, and what role the SCC participation and effective outreach, diplomats, NGO representatives, and impunity. Didier Preira, AGJA expert as well as insuff cient human resources. The 5) training justice sector personnel. and the international community could to ensure that the CAR population had members of international organisations, consultant, intervened on behalf of Hassan Ministry’s 2009 justice reform plan had been realistic expectations of the SCC. Drawing Bubacar Jallow, AGJA member and former interrupted by the 2012 crisis, which reversed With regard to the SCC, the Minister on her work in the Off ce of the UN’s Chief Prosecutor of the reminded his Special representative on sexual violence, International Criminal audience that Sof a Candeias spoke about the need for Tribunal for Rwanda, this would be accountability for sexual- and gender- emphasising the Africa FLAVIEN MBATA: The law establishing the SCC sends a strong the f rst time based violence in the specif c historical Group’s continued signal in the f ght against impunity and will contribute to long- in the history and political context of the CAR. For their support for the CAR of transitional part, Fabrizio Hochschild, Deputy Special government. Building term stability, crime prevention and national reconciliation. justice that a Representative of the Secretary General on the AGJA’s visit to special tribu- and Resident Representative of UNDP in Bangui in September nal operated the CAR, and Stephen Rapp, former US 2016, Mr Preira welcomed the government’s gains that had already been achieved. An in a conf ict zone, and he underscored Ambassador-at-Large for War Crimes, drew work to operationalise the SCC, and emergency plan conceived during the 2014- the fact that the CAR authorities had attention to the benef ts and limitations proposed to accelerate the Court’s 2015 transition was never implemented, due accomplished this in just 9 months. Integrated of a hybrid court in a post-conf ict zone, establishment, which would be an essential to a lack of resources and a tenuous security into the national judiciary for 5 years, the and in particular the SCC’s relationship means of ensuring justice for CAR victims of situation, with armed groups continuing to SCC would apply CAR law and prosecute vis-à-vis the CAR’s justice system. Various atrocity crimes. operate in many regions of the CAR. Adopted the most serious crimes in conformity with the panellists discussed recent progress in June 2015, the law establishing the SCC Roman-Germanic judicial tradition. The SCC in establishing the SCC, with Christian In his keynote address, the CAR Minister of sent a strong signal in the f ght against impunity, would co-operate with the ICC, but for this Londoumon, President of the CAR Court of Justice, Mr. Flavien Mbata, explained the and it was hoped, added the Minister, that it to become a reality the CAR government Cassation, giving a detailed update of the historical and political context of his country’s would also contribute to long-term stability, still needed the necessary infrastructure, recruitment of the Court’s international and current crisis, including the widespread crime prevention and national reconciliation. qualif ed staff, and f nancial and political Marie-Thérèse Keita Bocoum, Independent Expert on the situation of human rights in national staff, and the Minister of Justice atrocities that had taken place since 2013. support. The aim, he explained, was to Central African Republic, and Fabrizio Hochschild, Deputy Special Representative of the answering questions from the f oor about He emphasised that justice was essential to Mr. Mbata presented his government’s new integrate external support progressively and Secretary General, Resident Coordinator of the United Nations System, Humanitarian the government’s policies on international peace and that earlier episodes of impunity in sectorial plan on justice reform, aimed to strengthen the national system over the Coordinator, and Resident Representative of UNDP in the Central African Republic . CAR had encouraged the commission of war at consolidating peace, protecting human long term.

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Mr. Mbata went on to stress that the would be provided by the CAR authorities, and other judicial organs were in dire need Roundtable Sofa Candeias, Judicial Affairs Offcer in weak, with a very low budget, when the Government had pledged to create the with Bangui’s Tribunal de Grande Instance of support: key infrastructures were missing, the Team of Experts on Sexual Violence in 2013 crisis had erupted. The UN had been SCC, which would operate impartially across being earmarked for the purpose; a security especially outside of Bangui. Even in the Netsanet Belay, Africa Director at Amnesty Armed Confict, reminded all those present working on the justice system since 2004, the entire territory of the CAR, so as to plan had been transmitted to the UN to capital, the fve most prominent courts International, began by thanking the Minister that the CAR had been one of the frst and the MINUSCA currently had a strong reassure the population. Justice, he insisted, ensure that both national and international – the Constitutional Court, the Supreme of Justice for his candid assessment of the countries to be visited by the current justice-support mandate, which allowed it to was at the centre of President Faustin staff would be protected; the MINUSCA was Court of Justice, Court of Cassation, State situation in the CAR, an assessment with Special Representative of the Secretary participate in a range of activities. Touadéra’s political platform. The Minister in the process of mapping crimes committed Council and Court of Auditors – would all which his organisation mostly agreed. He then General (SRSG) on sexual violence in armed confrmed that he had personally taken since 2003, which should allow the Special need to be built or renovated. There was highlighted several challenges facing the confict, Zainab Hawa Bangura. In December On the role of SCC, Mr. Hochschild underlined charge of operationalising the Court, a task Prosecutor to start investigations as soon as he a lack of housing for judicial personnel, SCC and the CAR justice system: 2012, the then government and the UN had that it was a landmark achievement, which that included hiring national staff and co- or she was appointed; the government was which raised serious security concerns and 1) the security situation had deteriorated signed a Memorandum of Understanding would hopefully have knock-on effects and operating with external actors and the UN. preparing cases for trial before the national prevented magistrates from doing their considerably since September 2016; to prevent sexual violence and provide strengthen the entire national justice system. courts; an experts’ roadmap for victim- and work. The penitentiary system needed 2) impunity remained a serious problem; services to survivors of sexual violence, but The SCC’s greatest strength was that it would The Minister then mentioned the project witness-protection before the SCC and to be completely overhauled and rebuilt members of armed groups and militias were unfortunately violence had erupted shortly allow the authorities to focus on those most document of August 2016, in which the UN, the ordinary courts ought to be fnished by from the ground up. Several bills relating at large, and some people accused of after Ms. Bangura’s departure. Her offce had responsible for serious crimes. Mr. Hochschild the US and pledged to strengthen December 2016; an expert was being hired to human rights, peace, good governance human rights violations now held positions of gone back on a few occasions and confrmed also noted that, despite the fnancial technical and fnancial support for the SCC, to draft the SCC’s Rules of Procedure and and development were with the Ministry and power; that all parties to the confict in CAR support of the international community, it and provide funding for the frst 14 months Evidence; France, the USA, The , would shortly be transmitted to the National 3) the justice sector suffered from insuffcient were responsible for confict-related sexual had proven diffcult to elicit interest in the of its work. He also noted recent progress in MINUSCA and UNDP had contributed to the Assembly for debate and enactment. human and fnan- CAR penitentiary recruiting the SCC’s staff, and in particular budget for the frst 14 months of phase 1 but cial resources and and corrections the UN’s call for qualifed candidates, with funding for the remainder of the estimated The Minister concluded his speech by a lack of basic SOFIA CANDEIAS: Outreach would help Central Africans under- system, which and Belgium already indicating a US$37m for the Court’s fve-year budget was reiterating that, while the challenges in the infrastructures; urgently needed willingness to participate. still outstanding. CAR were both numerous and complex, 4) the government stand what sexual violence is, why it is a crime, and how the more support. the government’s frm commitment to the had failed to SCC could reduce harm already suffered by victims. Arrests were not There had been several recent develop- Turning to the ordinary justice system, fght against impunity would help ensure a protect victim happening today, ments in this area: the SCC’s infrastructure the Minister emphasised that the courts better future for all. and witnesses, he said, because as evidenced by the last criminal session violence, with current estimates suggesting there was no physical capacity or political in Bangui where very few Central Africans that there were thousands of victims of these will to detain people. “The system is only as agreed to testify in court. Mr. Belay noted that routinely underreported crimes. Ms. Candeias strong as its weakest link”, Mr. Hochschild Sofa Candeias, Judicial Affairs Offcer, Team of Experts, Offce of the United Nations Special Representative of the Secretary-General on there was little doubt that a vicious cycle of noted that the ongoing mapping of crimes said. He encouraged donors to look at the Sexual Violence in Confict, and Netsanet Belay, Africa Director, Research and Advocacy, Amnesty International, Johannesburg impunity was fuelling cycles of violence in by the CAR Offce of the High Commissioner CAR as not just a challenge but also as an the CAR. for Human Rights should provide a clearer opportunity: the government was candid picture of the situation, which might in turn about the challenges and there was political Mr. Belay emphasised that, given the scale of encourage greater accountability. will to establish this new and innovative the challenges facing the CAR, the country court, which could serve as an example to needed more than the SCC alone. The Insofar as the SCC was concerned, Ms the world. entire justice system had to be overhauled; Candeias underscored the fact that the Court yet there was still some confusion in the would have limited resources and would thus Christian Londoumon, President of the CAR CAR, where people thought that the SCC be unable to investigate and prosecute Court of Cassation, reminded the audience was independent of the national judiciary. every single perpetrator. A prosecutorial that the country had experienced violence Mr. Belay reminded his listeners that the strategy was essential and had to be driven for decades and that justice would be hybrid court was integrated into the national by rigorous, clear-cut mapping of the “crime needed in order to overcome impunity, which judicial system, which was an innovation that scene”, which could provide an accurate was how the idea of a specialised tribunal should be supported. He made the following refection of the quantitative and qualitative had originally been born. recommendations: dimensions of criminality in the CAR. Ms. 1) sustainable funding. Lessons should be Candeias laid stress on the importance Mr. Londoumon explained the legal learnt from the fawed funding processes of communicating the SCC’s work to framework of the SCC: it would be a hybrid in and . The current victims, who had to understand and accept court composed of international and national budget was based on optimistic readings of prosecutorial choices and priorities. She also judges, and the law establishing the court the SCC’s needs; highlighted why victims of sexual violence sometimes derogated from CAR law and 2) a transparent and merit-based faced daunting obstacles in the CAR, where procedure. In cases of confict between recruitment process for international and distrust of the judiciary, social stigma and ordinary courts and the SCC, the hybrid national staff. Mr Belay noted that civil society security concerns all prevented victims from tribunal had priority to investigate and should have a role to play in this process; coming forward to testify against perpetrators prosecute. There would also be special rules 3) the CAR’s victim- and witness-protection of sexual violence. It was essential that the for victim- and witness-protection, which were framework needed to be fundamentally SCC had adequate facilities, well-trained not yet integrated into ordinary domestic law. overhauled with the help of international investigators and , and security The death penalty would not be applicable actors; protocols in place to ensure anonymity to in the SCC, despite the fact the CAR Penal 4) developing Rules of Procedure and the greatest extent possible. She also noted Code allowed for this. Evidence for the SCC was an important task, that outreach would help Central Africans Mr. Londoumon highlighted the fact that and civil society should be involved; understand what sexual violence was, why it the SCC would have a mixed staff of 12 5) outreach to victims was essential, so that was a crime, and how the SCC could reduce local and 11 international judges. Different their expectations were realistic. At the same harm already suffered by victims. recruitment procedures were in place time, the political ramifcations of high-level Mr Fabrizio Hochschild emphasised that for international and national staff, with prosecutions had to be well understood by the 2013 crisis had had a devastating the MINUSCA, the peacekeeping mission, the general population; and, impact on the CAR justice system. “Where spearheading efforts to hire international 6) co-ordination between the SCC and the rule of law disappears”, he said, “other personnel, while the was the proposed Truth and Reconciliation forces fll the void”, and he pointed out that responsible for ensuring a transparent and Commission (TRC) still needed to be worked recent massacres in the CAR had been competitive recruitment process for CAR out, and rules on information-sharing had to committed in the name of the rule of law. candidates. He also sounded a reminder be developed. The CAR justice system was already very that the current budget only covered a part

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of phase 1 of the SCC’s operations and that supporting the state than armed groups. Q&A would be addressing. On co-operation more funding would be needed in due Anna Cave, Principal Deputy, Offce of with neighbouring countries, he mentioned the International Conference of the Great course. Mr. Londoumon ended his address Global Criminal Justice at the US State Members of the audience asked questions Lakes Region, which had agreements with a plea: the ordinary justice system Department, took the foor and reminded about defence counsel and fair trial rights on co-operation in judicial matters, and should not be forgotten because it would everyone of President Obama’s support for before the SCC, co-operation arrangements suggested that the SCC and Central African also need support, if the entire country was peace and reconciliation initiatives in Africa. with neighbouring countries, protection government might try to work with them on to experience a holistic recovery. She said that the US government would mechanisms for national judges, and whether extradition and other issues. With respect to any judges had already been appointed. the penitentiary system, Mr. Rapp highlighted Stephen Rapp, former US Ambassador-at- the fact that high-profle detainees and Large for War Crimes Issues in the State The Minister of Justice responded by BETTINA AMBACH: A lot convicts could be detained/imprisoned Department, discussed the benefits and stressing that the entire justice system had outside Bangui for security reasons, though drawbacks of hybrid courts. He began by of commitments have to be reformed, and acknowledged that this would require judicial co-operation with saying that the rule of law was key to the the penitentiary system was probably the been made and it is im- countries in the region. sustainability of peacebuilding efforts in weakest link, which risked undoing the work the CAR. If armed groups were allowed to portant to build on this of other judicial actors. As regards the SCC Mr. Belay agreed that the penitentiary operate with impunity, all the money that and neighbouring countries, he said the CAR momentum to make the system needed strengthening. He added international donors pledged to the SCC government would use existing co-operation SCC a success that Amnesty International was concerned would be lost. Mr. Rapp said that when he agreements to work with other states on that there was a somewhat reductionist had visited Bangui, the prosecutors had penal matters. The Minister reiterated that a view of this particular challenge, with the told him that they were not investigating recruitment committee under his supervision government failing to arrest people or the 2013 violence because, in their words, offcially donate an additional US$8.2m was currently selecting candidates for the actually shielded some people from arrest. “we can’t touch people from the armed to justice sector reform at the Brussels SCC, whose nominations would then be Mr. Londoumon explained that the SCC groups; we have no capacity to protect donor conference the following day, and forwarded to the President and Supreme recruitment process would take place in a ourselves or our witnesses.” an additional US$1m to the SCC budget. Judicial Council (Conseil supérieur de la Ms. Cave also noted that the US hoped to Magistrature) for validation. “gradual manner”, meaning that the Special Prosecutor and investigative judges would Mr. Rapp said that the ICC was playing Jean-Pierre Reymondet-Commoy, Ambassador of the European Union in the Central provide more support for the penitentiary be appointed frst, while trial and appeal an important role in the CAR and that the African Republic system and, pending congressional Florent Geel said that a special defence judges would be hired after 2 to 3 years. The Court would eventually charge 2-4 people. approval, for civil society in the CAR. bar would be established at the SCC to Minister of Justice made the point here However, many more perpetrators needed provide suspects with access to appropriate that the would also be recruited in to be held accountable, which was why Florent Geel, Africa Desk Director of the SCC had to be functional; it could not Timothy Meyer, Programme Manager, counsel. The CAR Bar Association and the frst phase. The EU Ambassador insisted the SCC was so important, argued Mr. International Federation for Human Rights spend billions of dollars and produce 2 or 3 American Bar Association (ABA), Rule of Avocats sans Frontières were providing that operationalising the SCC was the key Rapp. There were those who suggested (FIDH), discussed his organisation’s work in convictions, as in Cambodia. The SCC had Law Initiative, spoke on behalf of Richard training to attorneys, and it was hoped that challenge, and that it was important for that the ordinary justice system should supporting victims in the CAR. He noted that to be be efficient and effective, and take Malengule, ABA representative based in division of labour would emerge among the the entire country to support the Court. In be the justice-reform priority, but the hope the FIDH had done similar work in the trial into account the needs of victims, who the CAR, who could not attend the event. various stakeholders to ensure that the fair addition, he mentioned that the EU would was that reform and best practices would of Hissène Habré in Senegal, as well as in the FIDH was representing thanks to the He noted that ABA support in the CAR trial standards of both the accused and provide the building in which the SCC was spread from SCC into the ordinary system. , Côte d’Ivoire and . The FIDH EU’s financial support in the CAR. focused on sexual- and gender-based victims could be guaranteed. The FIDH was to be headquartered. Marie-Thérèse Keita Drawing on his work at the International had also been on the ground in the CAR Following the roundtable discussion, three violence; legal aid for those accused currently focusing on victim support, yet Bocoum stressed that the right to truth should Criminal Tribunal for Rwanda and the in 2002/2003, where it had conducted members of the audience took the floor: of crimes and detained without trial, and defence rights were very important as well. be respected in the CAR, something that Special Court for Sierra Leone, he noted investigations into the violence which had victim- and witness-protection. Mr. Meyer Stephen Rapp agreed on the need for well- called for a holistic approach to transitional that there would always be benefits and eventually come within the purview of the Marie-Thérèse Keita-Bocoum, emphasised the importance of outreach in trained defence counsel before the SCC. He justice and support for the TRC. Bettina drawbacks, and that, though the hybrid ICC. Independent Expert on the situation of managing expectations, and informing the noted that attorneys in the CAR currently Ambach underscored the fact that a lot of Special Court had probably been too human rights in the CAR, offered her thoughts CAR population about the justice system, Mr. Geel accentuated the importance receive 8 euro (5000 CFA) in legal aid for commitments had been made and that it internationalised, on the situation there, suggesting that the and the SCC in particular. an entire case, which was clearly not enough was important to build on this momentum to it had ultimately SCC would be for the sort of complex cases that the SCC make the SCC a success. been a force for essential, not only security and STEPHEN RAPP: If armed groups were allowed to operate in the fght against peace in the impunity, but also region. It had had with impunity, all the money international donors pledged in supporting a real impact, to the SCC would be lost. peaceb u i l d i n g e m p h a s i z e d and development. Rapp, who said She confirmed many of the Special Court’s staff had gone and applauded the government’s political of the current government’s political on to strengthen the Sierra Leonean state, support for the SCC, and underscored the support for the SCC, something that and the justice system in particular. fact that the court would also need the remained a serious obstacle in the fight support of the general population, which against impunity elsewhere in Africa. He had to take ownership of the justice Mr. Rapp noted further that the SCC argued that the 2002/2003 violence reform and the fight against impunity. would be more similar to Bosnia’s War and the 2013 crisis had been triggered by Crimes Chamber than the Special Court in the same actors, and so it was essential to Ms. Keita-Bocoum said that there would be Sierra Leone. In , intervene with judicial means as early as serious challenges, particularly when it the court had been integrated into the possible. “Justice does not have to wait came to protecting victims and witnesses, domestic justice system, and international for peace”, said Geel, who suggested that providing transport to enable the public to prosecutors and judges had gradually the state had to affirm its authority as soon attend trials, supporting victims of sexual been phased out, leaving a lasting as possible, otherwise it would always be violence so as to help them avoid social legacy at a fraction of the cost. Bosnia dependent on foreign aid. stigma, and ensuring that the SCC had and Herzegovina remained at peace, just Mr. Geel said that the easy part was adequate documentation to conduct like Sierra Leone where multiple passing laws, but operationalising a hybrid effective investigations and trials. She and transitions of power had taken place tribunal such as the SCC would be the real concluded by suggesting a broader without violence. These hybrid courts could challenge, and this would prove impossible strategy to convince Central Africans Stephen Rapp, Distinguished Fellow at The Hague Institute for Global Justice, former Ambassador-at-Large for War Crimes Issues, Offce of Global have a real impact, he concluded. without continued political support. The that their wellbeing was better served by Criminal Justice, Department of State, of America, and Christian Londoumon, President of the Court of Cassation, Central African Republic

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CONTACT BETTINA AMBACH Director, Wayamo Foundation Prinzregentenstr.82, 10717 Berlin, Tel. +49 30 81032821 [email protected] www.wayamo.com [email protected] www.theafricagroup.org