CAR: Understanding the Legal Framework for the Prosecution of SGBV

Crimes Against Humanity (14)
© UNHCR / Fane Abdelkarim Arame, aged 70, found shelter at Ecole Liberty in CAR/  Flickr. 
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To mark International Justice Day – 17th July – CMN shares a summary of the legal framework for prosecuting sexual and gender-based violence (‘SGBV’) in CAR, based on its recent report, National Legal Requirements on Prosecution of Sexual and Gender-Based Violence in Central African Republic (February 2017).

Since 2001, the use of rape and other types of SGBV as a weapon of war have been perpetrated by all sides and have occurred in every province at some point of the bouts of conflict, spanning 2002 to 2013. The 2013 ‘crisis’ was marked by gang rape, sexual slavery and forced marriage of women and girls allegedly perpetrated by both the mostly Muslim Séléka forces and Christian anti-balaka militias. Numerous other armed groups, including the Lord’s Resistance Army, Mouvement de libération du Congo (MLC), Union for Peace in Central Africa (UPC) and Front Populaire pour la Renaissance de Centrafrique (FPRC) are believed responsible for crimes during different periods. The number of male victims of sexual violence is likely extremely high, but most never report or disclose and almost no cases against men or boys have been reported to the authorities but young male survivors are regularly seen at hospitals. Despite the prevalence of sexual violence there has been little domestic justice for victims to date. In March 2016, the International Criminal Court convicted Jean-Pierre Bemba of rape as a war crime and crime against humanity in his capacity as an effective commander of the MLC troops that carried out a widespread attack on the civilian population of CAR in 2002-2003. The Office of the Prosecutor is also conducting ongoing investigations into both sides of the 2013 crisis, both of which are likely to include a focus on crimes of a sexual nature.

The Special Criminal Court, Ordinary Criminal Courts and the Permanent Military Tribunal

In June 2015 an Organic Law on the creation, organisation and functioning of a Special Criminal Court was enacted to address these issues. With jurisdiction over serious violations of human rights and international humanitarian law committed in CAR since 1 January 2003, the Special Criminal Court will have primacy over the ordinary criminal courts, although its Statute cedes jurisdiction to the ICC. The Special Criminal Court will apply the domestic Penal Code and Criminal Procedure Code, but may also consider international substantive and procedural law, where necessary. On 30 June, the swearing-in ceremony of the Special Prosecutor and Deputy Prosecutor took place in Bangui, alongside four national and international judges. In addition to the Special Criminal Court, ordinary criminal courts, the courts of appeal and the Court of Cassation can also hear SGBV cases, alongside the Permanent Military Tribunal for offences committed by military personnel.

International Crime Definitions

International crimes were introduced into national legislation through the 2010 Penal Code, to include genocide, crimes against humanity and war crimes. While the definitions largely replicate those of the ICC Statute, slight discrepancies can be noted. For example, crimes against humanity introduces an additional underlying act: the practice of carrying out mass and systematic summary executions. Moreover, the incorporated crime omits gender as one of the various grounds for persecution. The provisions on war crimes are limited to listing the broad categories of war crimes, such as grave breaches of the Geneva Conventions, without specifying which underlying acts would fall within the scope of these categories.

The Legal Requirements of Sexual and Gender-Based Violence Crimes

Rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilisation are listed as the underlying acts of crimes against humanity, but there are no elements or legal requirements, as can be found in the ICC Statute and its Elements of Crimes document. Among these crimes, rape is the only one defined as an ordinary crime in a separate provision of the 2010 Penal Code. This suggests that other above-mentioned sexual crimes could only be prosecuted under different charges covering similar conduct. For example, sexual slavery could be prosecuted under the charge of human trafficking. It is important to examine whether applying the definitions of the 2010 Penal Code by analogy to the sexual crimes of the ICC Statute would be suitable and would cover the same elements of crimes. Some definitions are wider and cover a broader range of situations, while others are narrower and do not include all the elements that define the crimes of the ICC Statute.

Mens Rea and Liabilities

The 2010 Penal Code does not include a separate provision on mens rea: intent and knowledge is only implied in a provision stating that individual cannot be held responsible if they were compelled by a force they could not resist. The provisions on the modes of liability are slightly different from those outlined in the ICC Statute as they are more specific, explicitly stating which forms aiding and abetting may take, include additional modes of liability, while excluding command responsibility. However, the Organic Law on the creation of the Special Criminal Court replicates the modes of liability – including command responsibility – of the ICC Statute.

Application of the Law

Owing to the extremely low number of prosecutions to date, 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. This can raise challenges to prosecutors under the ordinary system as they prepare case files. Considering that none of the sexual crimes, except rape, are explicitly defined in the 2010 Penal Code, it remains to be seen which definitions the CAR courts will apply. The Organic Law on the creation of the Special Criminal Court offers a potential solution to this: it allows the application of international substantive and procedural law if the national provisions are incomplete or unclear. There is, however, no further detail on how this may be implemented, nor to what extent the Special Criminal Court will rely on international definitions.

Challenges Facing SGBV Prosecution in CAR

The prosecution of SGBV in CAR also faces broader challenges that are related to victims’ access to justice and the lack of suitable training to investigate SGBV incidents. There is a need for suitable training of police personnel and magistrates to investigate and prosecute SGBV more effectively, taking into account their particular nature. This means, for example, training on how to receive complaints from SGBV victims and collecting relevant evidence that can be used in courts. Furthermore, security issues are a major impediment to the prosecution of SGBV since some police stations may still be under the control of the perpetrators, preventing the victims to report the crimes. . These latter obstacles are coupled with the lack of personnel and material resources to cover the needs of the population as well as the visible lack of confidence of victims in the criminal justice system. Lastly, criminal justice actors, including magistrates, and victims face difficulties in accessing national legislation and relevant case law.

This summary is based on the Executive Summary of the recent publication National Legal Requirements on Prosecution of Sexual and Gender-Based Violence in Central African Republic (February 2017), which was produced in collaboration between the CMN and the University of Nottingham Human Rights Law Centre, through funding provided by the UK Foreign and Commonwealth Office.

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