The Role of the International Criminal Court in African Conflicts: The Case of the Central African Republic

Prepared by the researche : Amro Selim – PhD researcher at the Faculty of African Graduate Studies – Cairo University

DAC Democratic Arabic Center GmbH

The Bemba Trial and the Establishment of the Special Criminal Court

The Central African Republic has witnessed a widespread wave of violence resulting from military coups and conflicts between armed groups, which the country has suffered from since its independence from France in 1960. These conflicts culminated in the events of 2002/2003, which occurred during the rule of former President Ange-Félix Patassé, who faced fierce opposition from armed groups and opposition parties. In 2002, a failed coup attempt led by General François Bozizé, a former army commander who overthrew the political regime, led to violent clashes between his rebel forces and government forces supported by foreign fighters, including Congolese militias. Patassé enlisted the help of armed groups from neighboring countries, most notably the Movement for the Liberation of the Congo (MLC), led by Jean-Pierre Bemba, to support him against the rebellion. This resulted in a series of widespread human rights violations, including murder, rape, and looting of property. This prompted the International Criminal Court to intervene and try Bemba, accusing him of committing war crimes and violations against humanity in the Central African Republic. The initial wave of violence had barely subsided when, in March 2013, a conflict erupted between the Seleka and anti-balaka groups. The predominantly Muslim Seleka group overthrew President François Bozizé and seized control of the capital, Bangui. Seleka leader Djotodia became the country’s first Muslim president. In response, the predominantly Christian anti-balaka group emerged and launched revenge attacks against Muslims, igniting a cycle of sectarian violence that resulted in the deaths of tens of thousands of people and the displacement of more than a million people internally and externally.

This resulted in the arrest of Mahamat Said Abdelghani, one of the Seleka leaders, by the International Criminal Court in 2021 and his surrender to the court. He was charged with premeditated murder, torture, persecution of civilians based on their religious or ethnic affiliation, arbitrary detention, and cruel treatment. As a result of the wave of multiple conflicts that have plagued the Central African Republic, an agreement was signed between the United Nations and the country’s government to establish the Special Criminal Court, a mixed (national and international) court established in the Central African Republic in 2015. Its purpose is to investigate and prosecute those responsible for serious crimes committed in the country since 2003.

This research is divided into two sections. The first section addresses the history of the conflict in the Central African Republic and the trial of Bemba. The second section addresses the trial of Seleka leader Mohamed Said Abdelghani, the establishment of the International Criminal Court, its composition, powers, and the challenges facing its work.

The Conflict and the Bemba Trial

The Central African Republic gained independence from France in 1960. Since then, it has been trapped in a vicious cycle of military coup attempts and violent transfers of power, leaving the country in a state of security, political, and military chaos, resulting in widespread violence. Successive governments have had little control outside the capital, Bangui, and the instability has been exacerbated by the persistent interference of neighboring warlords, rebels, and mercenaries, who freely use remote rural areas as bases for their military operations.

Following the 1993 election of Ange-Félix Patassé as president, the country experienced a series of military coup attempts, prompting the intervention of a small UN force. In 1999, Patassé was re-elected, but a new wave of violence erupted following the coup attempt by former President André Dieudonné Kolingba in 2001. Patassé accused his chief of staff, François Bozizé, of disloyalty. Bozizé fled to Chad and returned a year later, leading an offensive to oust Patassé. Bozizé’s forces quickly reached the capital, Bangui, and engaged in heavy fighting. To contain the rebel forces, Patassé sought assistance from Jean-Pierre Bemba, a warlord from the neighboring Democratic Republic of the Congo. In 2003, the army managed to push the rebels back to the north. The country experienced a series of violent incidents during the five months that followed, and in 2003, Bozizé seized power. Between 2002 and 2003, widespread violence perpetrated by all parties, including Bemba’s forces, prompted local human rights organizations affiliated with the International Federation for Human Rights (FIDH) to investigate serious crimes committed in the capital’s most affected neighborhoods.

In February 2003, evidence against Bemba was sent to the newly established International Criminal Court (ICC) with a proposal to investigate the situation. Then, in December 2004, the Bozizé government formally referred the situation to the court. Two and a half years later, in May 2007, the ICC Prosecutor opened an investigation into the situation in the Central African Republic. In 2008, the ICC Pre-Trial Chamber issued an arrest warrant against Jean-Pierre Bemba, following which Bemba, who was traveling to Belgium at the time, was arrested. The fighting in the Central African Republic in 2002-2003 was characterized by widespread terrorizing of civilians, perhaps more so than the fighting between the military and the army itself. Rape of women and men was particularly widespread during these fightings, while there was also killing, abuse, and looting on both sides.

ICC Indictments

The International Criminal Court has indicted Jean-Pierre Bemba, the president and commander-in-chief of the Movement for the Liberation of Congo (MLC), on two counts of crimes against humanity: murder and rape; and three counts of war crimes: murder, rape, and looting They were committed between 2002 and 2003 in the Central African Republic.

Chronology of Events

On December 21, 2004, the Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, received a letter addressed on behalf of the Government of the Central African Republic. The letter referred to the status of crimes within the Court’s jurisdiction committed in the Central African Republic since July 1, 2002, the date of entry into force of the Rome Statute.

On May 10, 2007, the Prosecutor of the ICC, Luis Moreno-Ocampo, announced his decision to open an investigation in the Central African Republic, explaining that after examining the information received, he believed that serious crimes within the Court’s jurisdiction had been committed in the Central African Republic. He decided to conduct an independent investigation and prosecute the individuals most responsible.

The Prosecutor confirmed that, based on a preliminary analysis of the alleged crimes, violence and crime peaked in 2002 and 2003. Civilians were killed and raped, and homes and shops were looted. The alleged crimes occurred in the context of an armed conflict between government and rebel forces. The Court, through the Prosecutor, confirmed that the allegations of sexual crimes were detailed and substantiated, with civilians raped in numbers that the Court described as “indispensable under international law.”

On May 9, 2008, the Office of the Prosecutor submitted its request in the situation in the Central African Republic for an arrest warrant for Jean-Pierre Bemba, under Article 58 of the Rome Statute, on the charges previously presented against him. On May 24, 2008, Jean-Pierre Bemba was arrested by Belgian authorities following an arrest warrant issued by the International Criminal Court (ICC). The ICC states in the arrest warrant that Bemba is criminally responsible, jointly with or through another person, under Article 25 of the Rome Statute of the ICC for: two counts of crimes against humanity: rape and torture; four counts of war crimes: rape and torture; outrages upon personal dignity, in particular humiliating treatment; and pillaging a town or place.

On November 20, 2013, the ICC issued a warrant for Aimé Kilolo Musamba, Bemba’s lawyer; Jacques Mangenda Kabongo (a member of Bemba’s defense team); Fidel Babala Wandu (a member of the DRC Parliament and deputy secretary-general of the Movement for the Liberation of Congo); and Narcisse Arido (a witness). On November 23 and 24, 2013, authorities in the Netherlands, France, Belgium, and the Democratic Republic of the Congo, acting on an arrest warrant issued by the International Criminal Court, arrested four individuals suspected of crimes against the administration of justice in connection with the Bemba case. These crimes include corruptly influencing witnesses before the ICC and providing evidence they knew to be false or falsified. They were accused of being part of a network for the purpose of providing forged documents and bribing individuals to provide false testimony in the Bemba case.

In March 2016, the ICC issued its ruling that Bemba was guilty under Article 74(2) of the Statute. Jean-Pierre Bemba was found guilty, under Article 28(a) of the Statute, of the following crimes:

1. Murder as a crime against humanity under Article 7 of the Statute.
2. Murder as a war crime under Article 8 of the Statute.
3. Rape as a crime against humanity under Article 7(1) of the Statute.
4. Rape as a war crime under Article 8 of the Statute.
5. Pillage as a war crime under Article 8, Paragraph 2, of the Statute.

Judgment

On June 21, 2016, the ICC sentenced Jean-Pierre Bemba to 18 years’ imprisonment. In its judgment, the Court noted that the crimes of murder, rape, and pillage he was convicted of were extremely serious, as two aggravating circumstances apply to the crime of rape: (a) they were committed against particularly defenseless victims and with particular cruelty. It considered that there were no mitigating circumstances in this case.

Just two years later, on June 8, 2018, the ICC Appeals Chamber declared that the crimes listed in paragraph 116 of this judgment did not fall within the facts and circumstances described in the charges. Therefore, the Court acquitted Bemba of all remaining charges in the present case and ordered his release.

In its previous ruling, the court justified dismissing the charges against Bemba and releasing him on the grounds that the scope of the duty to take “all necessary and reasonable measures” is essentially linked to the commander’s physical capacity to prevent or repress the commission of crimes or to refer the matter to the competent authorities for investigation and prosecution. Commander Bemba cannot be blamed for not doing something he did not have the authority to do. During the appeal, the court also questioned the veracity of the actual number of crimes committed and the capacity with which they were proven during previous court sessions. The court also questioned the previous ruling, which was based on Bemba’s failure to take the necessary measures to prevent and repress the aforementioned crimes by his forces.

The previous justifications may conflict with what has been reported, as international NGO staff working on all ICC cases have found that what distinguishes the CAR case is not necessarily that there are more rapes, but that a significant amount of evidence has already been collected locally—that is, there is already evidence incriminating Bemba—and that the victims are organized and highly motivated to testify, without fear or intimidation. He described them as “thirsty for justice.”

Office of the Court in the Central African Republic

The International Criminal Court established a field office in the Central African Republic in 2007, with the aim of increasing awareness and general understanding among the general public in the Central African Republic of the ICC’s mandate, role, functions, and activities, including its specific operations in the Central African Republic, and ensuring that  Local media professionals are provided with timely and accurate updates on legal developments, so they can, in turn, keep the public informed. This is done through three main phases: providing information on the ICC and the Bemba case, making the proceedings accessible to the affected population in Bangui, launching a radio series titled “Understanding the ICC,” broadcast in the local language, and another titled “Ask the Court,” broadcast in French; and, third, expanding the scope of awareness-raising workshops and interactive meetings.

The Special Criminal Court

No sooner had the first wave of violence in the Central African Republic (CAR) ended than the International Criminal Court (ICC) intervened and tried Bemba. A new conflict emerged on the local scene in 2012 between the predominantly Muslim Seleka rebels and the predominantly Christian anti-balaka militias, with the involvement of some members of the Central African Armed Forces (FARDC). Seleka had assumed power under President Djotodia in March 2013, before being forced by the Economic Community of Central African States (ECCAS) to relinquish power following Djotodia’s resignation in January 2014. As the predominantly Muslim Seleka, led by Michel Djotodia, struggled to consolidate power after seizing power in March 2013, the conflict spread among the general population, transforming into a conflict between Christian farmers and Muslim herders and nomads in the countryside and villages. This transformed these areas into sites of violence and suffering, leading several organizations to consider that the violations committed during this conflict may amount to war crimes and crimes against humanity. These include killings, torture and other inhumane treatment, widespread sexual violence including rape, forced marriage, recruitment of children as fighters, attacks on humanitarian workers including killings, and looting of private property, which has led to the internal displacement of more than one million citizens.

Trial of the Seleka Leader

On January 7, 2019, the International Criminal Court issued an arrest warrant for Mahamat Said Abdelghani, a Seleka leader, charging him with crimes against humanity, torture, enforced disappearance, and war crimes in the Central African Republic during the conflict between 2012 and 2013.

Formation of the Special Criminal Court

In response to the widespread violence in the Central African Republic, Fatou Bensouda, the Prosecutor of the International Criminal Court, announced in February 2014 that she would launch a preliminary investigation into the crimes of violence committed in the country. In September 2014, the Prosecutor of the International Criminal Court opened a second investigation in the Central African Republic for the second time, in parallel with the United Nations’ preparation of a parallel proposal to establish a specialized court with jurisdiction over international crimes. In August 2014, the United Nations and the authorities in the Central African Republic signed a Memorandum of Understanding regarding the establishment of the Special Criminal Court.

The Special Criminal Court is a domestic court operating under Central African law and fully integrated into the country’s judiciary. Therefore, it can be called a hybrid court established to investigate and prosecute crimes of violence within the country, including war crimes and crimes against humanity. The court was established in 2015 by a law passed by the Central African Parliament, as a result of the violence that the country has witnessed since 2013, including armed conflicts and widespread sectarian violence between the Seleka and anti-balaka groups.

The ICC’s establishment of concurrent jurisdiction is crucial for both the Special Prosecutor and the ICC’s complementarity rules. Given the scale of crimes in the Central African Republic, the drafters of the law decided not to grant the ICC exclusive jurisdiction over serious violations of human rights and international humanitarian law. It should be noted that the Central African Republic’s penal code prohibits amnesties for war crimes, crimes against humanity, and genocide. The Statute of the Special Criminal Court stipulates that the International Criminal Court has primacy, meaning that “in the event of a conflict of jurisdiction with another national court, the International Criminal Court shall have primacy in conducting criminal and pretrial investigations, and in adjudicating crimes and related offenses within its jurisdiction.”

Formation of the Special Criminal Court

The Special Criminal Court in the Central African Republic is an example of a hybrid court established to investigate and prosecute international crimes committed in the Central African Republic from January 2003 until the 2012/2013 conflict. The Special Criminal Court operates in cooperation with the International Criminal Court and national courts, and represents a practical demonstration of the ICC’s complementarity system. It has a five-year mandate and is comprised of a mix of local and international staff, as well as applying a combination of Central African Republic national law and international law. This blend of local and international expertise fosters cooperation and solidarity between national and international actors in promoting international human rights law within the hybrid court, as, at times, particularly in Africa, national accountability tools are perceived as illegitimate in countries suffering from The weakness of justice systems stems from fear of government interference and judicial bias. As for international courts, some believe that international justice mechanisms lack legitimacy due to the distance (cultural and physical) from the affected community and the lack of trust in the mechanism due to the exploitative and colonial ties that Africa has suffered and that continue to linger in the consciousness of its people. Therefore, the hybrid court stands as a joint project between the international and local communities, offering a compromise between the two parties. The presence of international actors in a hybrid court enhances the perception of independence and impartiality, while the host state, as a partner, works to enhance the sense of local accountability.

The Special Criminal Court is considered part of the “Central African Judicial System” and is equal to other criminal courts, as it has been fully integrated into the Central African legal system. International standards are applied in the court, even if there are some gaps or inconsistencies in applicable domestic legislation. Its distinguishing feature is that it is a blend of international and national law. Its judicial staff come from outside the Central African Republic, with some internal assistance. Therefore, the Special Criminal Court is considered a court operating on the basis of national law.

The Memorandum of Understanding explains Signed in August 2014 between the United Nations and the Transitional Government of the Central African Republic, the Court’s hybrid composition is based on a majority of Central African judges and a minority of international staff, with detailed dispute resolution procedures at each level. The Court’s statute provides for the establishment of four organs: the Court, divided into four judicial chambers; the Registry; the Office of the Special Prosecutor; and a Special Judicial Police Unit. The Criminal Investigation Chamber consists of four chambers: the Pre-Trial Investigation Chamber, the Special Indictment Chamber, the Trial Chamber, and the Appeals Chamber. It is modeled on the French system of investigation, where the Prosecutor and judges have broad powers to investigate crimes. All decision-making bodies of the ICC and its Registry must include at least one international member nominated by the UN Mission in the Central African Republic. Although the Special Judicial Police Unit serves as the primary investigative body, it is subordinate to the Special Prosecutor and judges. The Special Prosecutor will be an international figure, while the  The Special Prosecutor is a national of the Central African Republic, as the Special Criminal Court statute stipulates that parity between national and international prosecutors must be maintained in the appointment process.

Jurisdiction of the Court

The Special Criminal Court has broad jurisdiction over specific matters. It is authorized to investigate, prosecute, and try gross violations of human rights and serious violations of international humanitarian law, particularly genocide, crimes against humanity, and war crimes. These international crimes are equally punishable under the Central African Republic’s criminal code. In addition, the Special Criminal Court has the authority to prosecute torture as a separate international crime, utilizing the Central African Republic’s domestic legal rules relating to the Penal Code and the Code of Criminal Procedure. The Special Criminal Court’s temporal jurisdiction dates back to January 1, 2003, allowing the Special Prosecutor to investigate crimes committed during the rule of François Bozizé, the former President of the Central African Republic, from 2003. This court has an unlimited future period, allowing the court to prosecute gross human rights violations that continue to occur in the Central African Republic, while armed groups continue to carry out attacks against civilians. The Special Criminal Court’s territorial jurisdiction covers crimes committed in the Central African Republic, as well as “acts of participation and complicity committed in the territories of neighboring states with which the Central African Republic has signed mutual legal assistance agreements.” Some neighboring states have been the source of militias or may have hosted attacks or hostilities in the Central African Republic.

Challenges Facing the Court

Public support for the work of the Special Court depends on the popular support and political will of the host state. Therefore, political conditions can change from time to time, limiting the Court’s actions and popular acceptance. The Court’s mixed composition of international judges could prove to be a disadvantage if the two parties are unable to benefit from the transfer of expertise and skills. This can also lead to strained relations, which could affect the Court’s work and threaten solidarity among its members. The lack of political will and institutional support for the Court creates a negative public perception that justice is corrupt and unachievable. Difficulty in conducting investigations and hearing witnesses, or fear for their lives and the lives of their families, is another major challenge facing the Special Court. This is particularly true during periods of increased conflict, violence within communities, and the absence of law enforcement authorities. This is the case in the Central African Republic, where armed groups control 70% of the country’s territory. This, coupled with the government’s failure to provide security for citizens, has prompted some citizens to form armed groups to ensure their protection, leading to increased violence in the country.

The mass displacement of citizens during the conflict is also one of the most common challenges facing the Court’s work. This is due to the flight of victims or witnesses, or as a result of the trauma and fear felt by some victims of violations, such as victims of rape and other forms of conflict-related sexual violence, which occurred in the Central African Republic. Furthermore, a number of perpetrators have left the country, while some of them and their victims have died. In some areas controlled by armed groups, it is difficult for the ICC to conduct investigations, due to these groups’ protection of accused persons or their lack of cooperation with the Court. This is compounded by the potential destruction or tampering with documentary and material evidence necessary for the prosecution of perpetrators.

The challenge of the ongoing conflict is linked to the multiplicity of armed groups in the Central African Republic, as the United Nations confirmed in its report on serious violations of international law. Human Rights Watch documented multiple armed conflicts between 2003 and 2015, between more than fourteen armed groups on the country’s territory, both within the country and between some of them and external actors outside the state. This resulted in a dangerous and widespread number of violations against citizens. The United Nations report documented 620 human rights violations and violations of international humanitarian law in the Central African Republic between January 2003 and December 2015. It should be noted that the United Nations struggled to accurately monitor violations due to the difficulty of accessing some conflict areas and the displacement of victims and witnesses as a result of the violence they were subjected to. This indicates that the previous figure may be significantly lower than the actual number.

Bibliography

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