The principle of complementarity and hybrid courts : the case of the Special Criminal Court for the Central African Republic

• Author: Laurence Juma,Lloyd Chigowe
• DOI: 10.10520/EJC-110b0e557f
• Record Number: lesotho_v26_n1_a2
• Published date: 01 September 2018
• Pages: 41-78
• Date: 01 September 2018

THE PRINCIPLE OF COMPLEMENTARITY AND HYBRID

COURTS: THE CASE OF THE SPECIAL CRIMINAL COURT

FOR THE CENTRAL AFRICAN REPUBLIC

Chigowe, Lloyd



& Juma, Laurence



Abstract

This paper seeks to locate the place of hybrid courts in

the Rome Statute’s complementarity model using the

Central African Republic’s Special Courts as a case

study. The introduction of the Special Courts when the

International Criminal Court has already intervened in

Central African Republic has raised some concern

regarding the Special Courts relationship with the

International Criminal Court, especially whether it

may defeat the complementarity reg ime establis hed

under article 17 of the Rome Statute. This paper seeks

to dispel this concern. It argues that the creation of the

Special Criminal Court should never be perceived as an

indictment to the Rome Statute principle of

complementarity, but instead a useful attempt to close

the impunity gap that has arisen as a result of the

collapse or dysfunctionality of n ational criminal justice

system.

INTRODUCTION

Since attaining independence in 1960, the Central African Republic

(CAR) has experienced perpetual political instability, severe human

 LLB, LLM (Rhodes). Ph.D. Candidate, Rhodes University (email:

tondechigowe@gmail.com).

 LLB (Nrb), LLM (Penn), MA (Notre Dame) LLD (UFH), Professor &

Deputy D ean, Faculty of Law, Rhode s Univer sity (emai l: l.juma@ru.ac.za).

42 LLJ Vol. 26 NO. 1

rights violations and commission of international crimes with

impunity. One of the reasons behind the failure to bring the

perpetrators of international crimes to justice is the i ncapacity of

CAR’s judicial system to conduct proceedings over such crimes.

Although the establishment of the International Criminal Court

(ICC) to which the CAR is member of brought a glimmer of hope

for victims, the ICC’s intervention did not bring the culture of

impunity to an end. To close the impunity gap that arise as a result

of inability of CAR’s judicial system to prosecute international

crimes, the Special Criminal Court for Central African Republic

(SCC) was established. Although this development has been

embraced by the international community as well as legal scholars,

what remains unclear is the question of the relationship between

the SCC and the ICC. The purpose of this paper is twofold. Firstly,

the paper will examine the leg al basis for the creation of the SCC

under the Rome Statute principle of compl ementarity. Secondly, the

paper will examine the nature of the relationship that exists

between the ICC and the SCC, particularly in relation to division of

labour. In dealing with the second question, the paper will examine

accuracy of the claims that the establishment of the SCC serves as

an indictment on the Rome Statute complementarity principle and

that hybrid courts such as the SCC undermine efforts to strengthen

domestic criminal justice system. The paper is divided into two

parts. Part one will deal with trace the origins of the scourge of

international crimes in CAR, the impact of ICC’s intervention as

well as the events that led to the establishment of the SCC. Part two

will examine the place of hybrid courts vis a vis the Rome Statute

compl ementarity pri ncipl e. Part three will examine the question

whether the establishment of the SCC should be understood as an

indication of the failures of the Rome Statute complementarity

principle.

43

CENTRAL AFRICAN REPUBLIC AND THE STRUGGLE FOR

STABILITY: AN OVERVIEW

Since attaining independenc e from France in 1960, the CAR has

experi enced a cycle of coup d’états with s mooth transfer of power

being a rarity.1 In 1965, General Jean-Bédel Bokassa overthrew

David Dacko who had turned the country into a one -part state.

Bokassa was notorious for his brutality which involv ed ordering the

murder of pris oners as well as ordering their bodi es to be display ed

in public as well as committing many other atrocities.2 In 1981,

Bokassa was ousted and replaced by Dacko with the help of the

French Government,3 but his reign did not last long as he was

replaced by André Kolingba in another coup. Kolingba was in turn

removed from power after the election of President Ange-Félix

Patassé in 1993.4 Patassé sort to alienate some ethnic groups

especially in the military and this development created instability

which resulted in a 2003 coup which brought François Bozizé into

1See generally P Knoope, S Buchana n-Clarke "Central Afr ican Republic: A

Conflict Misunderstood", Oc casional Paper 22 (The Institut e for Justice and

Reconciliation) availa ble onli ne at

https://www.africaportal.org/publications/central-african-republic-a-

conflict-misunderstood/ (Last accessed 22 March 2017).

2A B. Akiyemi, "The Organization of Afri can Unity and the Concept of

Non-interference in Internal Affairs of Member-States," (1972) 46 British

Year Book of International Law (1972-1973) 393-400, at 393. Bokassa was also

accused of ha ving caused the death of many school children who had

rioted against a decree that ordered them to buy expensive school

uniforms. See S. Decalo, "African Personal Dictatorships," (1985) 25 The

Journal of Modern African Studies 209-237 at 217.

3J. Giroux, D. Lanz, D and Sguaitamatti, ‘Th e Tormented Triangle: The

Regionalisation of Conflict in Sudan, Chad and the Central African

Republic’ Working Papers Seri es 2, 47 (Cri sis States Research Centre)

available online at http://eprints.lse.ac.uk/28497/1/WP47.2.pdf (Last

accessed 19 March 2018) at 5.

4Ibid.