CAR: Legal Framework for Conflict-Related SGBV Prosecution

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Analysis of crimes, liabilities, mens rea, penalties, statutes of limitation and procedural law

National Legal Requirements: Prosecution of Sexual and Gender-Based Violence in Central African Republic

Brussels, February 2017
94 pages
ISBN: 978-82-8348-196-9.
PURL: http://www.legal-tools.org/doc/54164b/.

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This Report analyses the legal framework for the prosecution of conflict-related sexual violence crimes in Central African Republic (‘CAR’). It considers the Penal Code (2010), the Criminal Procedure Code (2010), the Law on the Protection of Women from Violence in CAR (2006), the Law in relation to Reproductive Health (2006) and the Organic Law on the Creation, Organisation and Functioning of the Special Criminal Court (2015) to identify provisions on international crimes and relevant sexual crimes, as well as national mens rea provisions, liabilities, penalties, statutes of limitations and procedures. The Report identifies provisions that enable or limit the effect of the law and proposes possible solutions, where limitations are identified.

Since 2001, the use of rape and other sexual and gender-based violence (‘SGBV’) as a weapon of war has become a widespread practice, primarily in areas controlled by rebels. Despite the high number of reported SGBV incidents, the number of cases investigated and prosecuted by the CAR courts is extremely low. To address these issues, a Special Criminal Court will be established, which will have jurisdiction over serious violations of Human Rights and International Humanitarian Law committed in CAR since 01 January 2003. The Court will have primacy over the ordinary criminal courts and will apply the domestic Penal Code and Criminal Procedure Code.

One of the main findings of the Report is that among the sexual crimes criminalised in the Rome Statute, rape is the only one defined as an ordinary crime in a separate provision of the 2010 Penal Code. This suggests that the sexual crimes other than rape could only be prosecuted under different charges covering similar conduct, which may raise issues regarding the principle of legality and which definitions the national courts will actually apply. Owing to the extremely low number of cases, it is unclear whether the courts will apply other definitions of similar conduct – through analogy – or whether they will refer to international definitions and case law. On this issue, a provision of the Organic Law on the Creation of the Special Criminal Court states that the Special Criminal Court will apply the definitions of the Penal Code and the Criminal Procedure Code but could also apply international substantive and procedural law, if the national provisions are incomplete or unclear. There is, however, no further detail on how this provision will be implemented, nor to what extent the Special Criminal Court will rely on international definitions.

This report is one of a series that contribute towards accountability efforts by assessing the substantive and procedural law frameworks in place in three countries – CAR, Colombia and Democratic Republic of Congo – to investigate and prosecute sexual violence crimes. It has been prepared for criminal justice practitioners, researchers and policymakers, who wish to gain an in-depth understanding of the substantive and procedural legal framework for prosecution of conflict-related sexual violence.

The purpose of the Report is to enable criminal justice actors to:

  • Access relevant national provisions, policies and practice directions on prosecution of sexual violence;
  • Compare the elements of national provisions with those in the Rome Statute and its Elements of Crimes document, as well as the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict;
  • Understand the different institutions responsible for investigation and prosecution of SGBV as well as the context in which such violations occur;
  • Identify approaches or policies that aid or hinder national prosecutions of SGBV;
  • Examine the possible methods of interpretation of provisions or policies that can facilitate effective prosecutions of SGBV.

In establishing the substantive and procedural legal framework for prosecution of conflict-related sexual violence in CAR, the Report relies on a thorough analysis of the relevant national legislation, reports and information gathered from online resources and through field visits conducted by the SGBV Adviser of the Commission for International Justice and Accountability (‘CIJA’). The Report was researched and drafted by Auriane Botte-Kerrison. Additional support was provided by Stephanie Barbour and Jose Ordoñez. The report follows a comparative methodology designed by Olympia Bekou, Emilie Hunter and Ilia Utmelidze, while Olympia Bekou provided oversight throughout the drafting process. The publication was presented and reviewed by an international independent reference group and the final review was completed by Emilie Hunter and Ilia Utmelidze.

Related activities

Publications: 

  • National Legal Requirements: Prosecution of Sexual and Gender-Based Violence in Colombia, expected February 2017*
  • National Legal Requirements: Prosecution of Sexual and Gender-Based Violence in Democratic Republic of Congo, expected February 2017*
  • International Criminal Law Guidelines: Sexual and Gender-Based Violence Crimes, expected February 2017*
  • Prioritising International Sex Crimes Cases in the Democratic Republic of Congo, Brussels, November 2015

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