Josepha Close, PhD, author of Amnesties, Serious Crimes and International Law: Global Perspectives in Theory and Practice (Routledge 2019)
This post looks at the prospects of peace and justice in the Central African Republic (CAR) one year after the signing of the Khartoum peace agreement in February 2019, the latest in a long series of peace agreements concluded in the CAR in the past two decades. Although blanket amnesties were previously a recurrent feature of peace-making in the CAR, in recent years initiatives have been taken towards the prosecution of serious crimes at the national and international levels. The post examines how the Khartoum Agreement has added up to previous peace plans and transitional justice initiatives, arguing that a comprehensive strategy including elements of criminal accountability, truth, reparation, reconciliation and possibly conditional amnesty, would be necessary to put an end to the relentless cycle of violence in the CAR.
The Central African Republic (CAR) has been marred by chronic political instability and violent conflicts for decades. Since its independence in 1960, state power has rarely been transferred through the democratic process. In this resource-rich country, brutal armed conflicts between state and rebel forces or between armed groups vying for control of natural resources have proliferated. The last resurgence of large-scale violence involved a coup by the northern and predominantly Muslim rebel coalition known as Seleka against President Bozizé in 2013, and retaliatory violence by Christian self-defence militias known as Anti-Balaka. The government of President Touadéra, elected in 2016, effectively controls only a portion of CAR territory with the support of MINUSCA, a UN peacekeeping mission deployed in 2014. Succeeding security and humanitarian crises have resulted in widespread serious human rights violations and mass displacements.
Since 2000, no less than ten peace agreements have been concluded between CAR authorities and rebel groups. Most of them have included a general amnesty provision. These repeated amnesties, usually broad and unconditional, were presented as pacification measures necessary to foster national reconciliation. However, they were not designed as part of a transitional strategy and failed to have any significant impact in halting the cycles of violence.
As the author has argued, the legitimacy of amnesties often depends on the degree of public support from which they benefit, which should ideally be tested through popular consultations and parliamentary debates. Their acceptability at the national and international level also turns on whether they cover serious crimes, require applicants to fulfil specific conditions, or are linked with measures seeking to ensure accountability, truth or reparation. In the CAR, amnesties were repeatedly used as instruments of power and impunity. They were devised with little or no regard for victims and affected communities, and they were not complemented by transitional justice mechanisms.
Avenues for criminal accountability
CAR peace agreements have generally not referred to criminal justice or to the need to combat impunity for serious crimes. This started to change following the Bangui National Forum held in May 2015, which gathered hundreds of representatives of civil society and communities from all parts of the country. This inclusive forum adopted the Republican Pact for Peace, National Reconciliation and Reconstruction in the CAR containing a series of recommendations regarding peace and security, justice and reconciliation.
The Pact emphasised the need to prosecute persons having committed serious crimes in the CAR. For this purpose, it called for the establishment of a Special Criminal Court in the CAR, the strengthening of the capacity of local courts, and cooperation with the International Criminal Court (ICC). It also recommended the establishment of a justice, truth, reparations and reconciliation commission.
The Special Criminal Court (SCC) was established as part of the CAR judicial system through a law of June 2015. Though its jurisdiction extends broadly to serious violations of human rights and international humanitarian law committed since 1 January 2003, prosecution authorities have indicated that they will focus on the crimes of genocide, crimes against humanity and war crimes. The SCC has begun investigations in 2019 and trials are set to start in 2021.
There are two other avenues for criminal justice in the CAR. In the first place, alleged perpetrators of serious crimes may be prosecuted before domestic criminal courts. The Bangui Criminal Court has actually outpaced international and hybrid courts in convicting some high-ranking members of the Seleka and Anti-Balaka militias in 2018 and 2019. It is currently in the process of trying several Anti-Balaka militia leaders for war crimes and crimes against humanity. At the ICC, charges including several counts of war crimes and crimes against humanity were confirmed by Pre-Trial Chamber II against two prominent Anti-Balaka leaders on 11 December 2019.
The views of the victims
Several empirical studies have shown that the option of impunity through blanket amnesty is largely rejected as unacceptable by the CAR population. While the first priority of most victims is security, there is also a widely-shared desire for justice. One of the most emphatic findings of these studies, however, relates to the pressing need of victims to be heard, and their suffering acknowledged.
A substantial proportion of serious crimes in the CAR were committed by militias against persons fleeing conflicts, so that many victims cannot precisely identify the person(s) responsible for their suffering. In addition to complicating the work of criminal courts, this fact underlines the need to document the violations, and the contexts within which they were committed, in order to give effect to the right to truth of the victims and permit the formation of a shared narrative of the conflict at the national level.
On the one hand, there is a general understanding that accountability for the crimes of the past is necessary in the CAR to put an end to the prevalent culture of impunity and provide closure to the victims and the society as a whole. On the other hand, the limitations of criminal justice institutions are apparent, e.g. in terms of the number of individuals they are able to process, the difficulty in collecting evidence in militia-controlled zones, the limited place afforded to victims and to the need for intercommunal reconciliation in the criminal process.
The Khartoum peace agreement and the Commission on Truth, Justice, Reparation and Reconciliation
The Khartoum peace agreement signed on 6 February 2019 was the most inclusive and carefully elaborated since the 2013 coup. It resulted from a lengthy mediation process led by the African Union which culminated in a direct dialogue between the CAR government and leaders of 14 recognised rebel armed groups. Although a general amnesty was demanded by the rebel groups, this was opposed by several actors of the peace process.
In the end, the Khartoum agreement does not refer to amnesty. However, neither does it mention criminal prosecutions. Like previous peace agreements in the CAR, it emphasises the need for reconciliation and provides for restorative, rather than retributive, mechanisms, including a commitment ‘to accelerate the establishment of the Commission on Truth, Justice, Reparation and Reconciliation with the aim of promoting truth, justice, reparation, national reconciliation and forgiveness.’
The establishment of the Commission on Truth, Justice, Reparation and Reconciliation (CTJRR) is finally under way. Following popular consultations launched in June 2019, a draft law for its creation was officially presented to President Touadéra on 22 January 2019. The Commission will have the broad mandate of establishing the truth about serious events which occurred in the CAR since 1959. It will also aim to promote reconciliation between victims and perpetrators by providing a forum to the former to tell their stories, and an opportunity for the latter offer reparation and seek forgiveness.
It is not clear whether the CTJRR will be empowered to grant amnesty or pardon to perpetrators confessing their crimes. While there is no explicit reference to either mechanism in the draft law, there appears to be a possibility in this sense if a reparation settlement is reached between the victim and the perpetrator, and the former freely accepts to forgive the latter. A recourse to clemency measures in some form would seem inevitable in the Central African context given the overwhelming number of victims and perpetrators, the limited capacity of criminal justice institutions, and the urgent need for a national process of closure enabling pacification and reconciliation.
Transitional schemes combining truth, reparation and leniency measures are not unprecedented. Following the end of apartheid, the South African Truth and Reconciliation Commission was empowered to grant amnesty to human rights violators who publicly disclosed all the facts about their crimes. More recently, to put an end to decades of armed conflict in Colombia, a Special Jurisdiction for Peace was established. It may subject perpetrators of serious crimes confessing within a specific time frame to an alternative sentence entailing some limitations on liberty and reparative labour, but no prison term.
While there is a growing tendency to consider that international law prohibits amnesties in respect of serious crimes under international law, this position remains controversial as there is no treaty ban and general amnesties continue to be frequently issued in transitional contexts. There are strong policy reasons against blanket amnesties since they entrench impunity and often result in a renewal of violence in the long-term, as was the case with amnesties in the CAR. However, experts on human rights and conflict resolution have emphasised that conditional amnesties may be conducive to both peace and justice by encouraging offenders to engage with transitional processes and alternative accountability mechanisms.
Some international courts and bodies have recently adopted a nuanced position on amnesties forming part of a peace or reconciliation process and fulfilling certain criteria, including an acknowledgment of the rights of victims, even when applying to serious crimes. For instance, in the case of Thomas Kwoyelo v Uganda (2018), the African Commission on Human and Peoples’ Rights considered that:
When [transitional states] resort to amnesties as necessary measures for ending violence and continuing violations and achieving peace and justice, they should respect and honour their international and regional obligations. … In procedural terms, conditional amnesties should be formulated with the participation of affected communities including victim groups. Substantively speaking, amnesties should not totally exclude the right of victims for remedy, particularly remedies taking the form of getting the truth and reparations. They should also facilitate a measure of reconciliation with perpetrators acknowledging responsibility and victims getting a hearing about and receiving acknowledgment for the violations they suffered.
The situation in the CAR is very complex and remains volatile one year after the signing of the Khartoum agreement. There is broad agreement that serious human rights offenders should be brought to justice in order to combat the prevalent culture of impunity and further public confidence in the rule of law. However, criminal justice processes on their own might not bring to the many victims of the conflict the acknowledgment, closure and reparation that they seek. The CTJRR is promising in this regard since, most importantly, it benefits from overwhelming support among Central Africans. If carefully devised and implemented, it could constitute an important complement to judicial processes by giving a central place to the victims, facilitating truth-telling, reparation and reconciliation. It would then represent one further innovative approach to peace and justice in difficult and protracted conflict situations contributing to the evolution of transitional justice as a dynamic field.
 Accord de Paix entre le Gouvernement de la République Centrafricaine et les Mouvements Politico-Militaires FDPC et UFDR, 2 February 2007 (Sirte Accord); Accord de paix de Birao entre le Gouvernement de la République Centrafricaine et le mouvement politique et militaire UFDR, 1 April 2007; Accord de cessez-le-feu et de paix entre le Gouvernement de la République Centrafricaine et le mouvement politique et militaire Centrafricain APRD, 9 May 2008; Accord de Paix Global entre le Gouvernement de la République Centrafricaine et les mouvements politiques et militaires APRD, FDPC and UFDR, 21 Juin 2008 (Libreville Accord); Acte d’adhésion de la CPJP à l’Accord de Paix Global de Libreville, 25 August 2012; Accord politique de Libreville sur la résolution de la crise politico-sécuritaire en République Centrafricaine, 11 January 2013; Accord de cessation des hostilités de Brazzaville entre les groupes armés en République centrafricaine, 23 July 2014 (Brazzaville Accord); Accord de Nairobi sur le cessez-le-feu et la cessation des hostilités entre les Ex-Seleka et les Anti-Balaka de la République Centrafricaine, 8 April 2015; Accord politique de Sant’ Egidio pour la paix en République Centrafricaine, 19 June 2017; Accord politique pour la paix et la réconciliation en République Centrafricaine, 6 February 2019 (Khartoum Agreement).
 A broad amnesty law was also proclaimed by General Bozizé after he seized power from President Patassé in March 2003.
 See Valérie Arnould, ‘Untangling Justice, Peace and Amnesties in the Central African Republic’ Africa Policy Brief No. 23, 12 February 2019.
 Josepha Close, Amnesty, Serious Crimes and International Law: Global Perspectives in Theory and Practice (Routlegde 2019) ch 3.
 Ibid. See The Belfast Guidelines on Amnesty and Accountability (Transitional Justice Institute, University of Ulster, 2013); Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Hart Publishing 2008) ch 4; Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (CUP 2009) pt 2.
 The 2008 Libreville Accord unprecedentedly excluded from its general amnesty provision crimes under the jurisdiction of the International Criminal Court (article 2). The 2014 Brazzaville Accord was the first to refer to the need to combat impunity in article 5(c).
 UN Security Council, Report of the Secretary General on the situation in the Central African Republic (29 July 2015) UN Doc S/2015/576.
 UN Security Council, Republican Pact for Peace, National Reconciliation and Reconstruction in the Central African Republic (4 June 2015) UN Doc S/2015/344.
 Ibid, 5.
 Loi organique No 15.003 portant création, organisation et fonctionnement de la Cour Pénale Spéciale, 3 Juin 2015 (SCC Law).
 Ibid, art 3. See Cour Pénale Spéciale de la République Centrafricaine, Stratégie d’enquêtes, de poursuites et d’instruction (4 Décembre 2018) para 52.
 Observatoire Pharos, ‘Victimes, impunité, justice et réconciliation’ (October 2016) 13-16, 22; Observatoire Pharos, ‘République Centrafricaine : Justice et priorité aux victimes, enquête et recommandations’ (October 2018) 8, 39-41, 60-61; Enricca Picco, ‘ « I Am 100% Central African » Identity and Inclusion in the Experience of Central African Muslim Refugees in Chad and Cameroon’, Research Report (International Center for Transitional Justice 2018) 34-36.
 Pharos, ‘Justice et priorité aux victimes’ (n 12) 58-62; Picco, ‘I Am 100% Central African’ (n 12) 25-28, 34-38.
 Pharos, ‘Victimes, impunité, justice et réconciliation’ (n 12) 6-7, 11-19, 29; Pharos, ‘Justice et priorité aux victimes’ (n 12) 7-24, 73-77; Picco, ‘I Am 100% Central African’ (n 12) 18-24.
 Pharos, ‘Justice et priorité aux victimes’ (n 12) 52-57; Picco, ‘I Am 100% Central African’ (n 12) 13-15, 34.
 Political Agreement for Peace and Reconciliation in the Central African Republic, 6 February 2019 (Khartoum Agreement).
 Ibid, article 9.
 Promotion of National Unity and Reconciliation Act 34 of 1995, s 20. See Jeremy Sarkin, Carrots and Sticks: The TRC and the South African Amnesty Process (Intersentia 2004).
 Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace, 24 November 2016, item 5.1.2 (III) paras 45-47, 60, 75.
 Close, Amnesty, Serious Crimes and International Law (n 4). See William Schabas, ‘No Peace Without Justice? The Amnesty Quandary’ in William Schabas, Unimaginable Atrocities: Justice: Politics and Rights at the War Crimes Tribunals (OUP 2012) 173.
 See Marguš v Croatia [GC] ECHR 2014-III, para 139; UNGA International Law Commission, Third Report on Crimes Against Humanity by Sean D. Murphy, Special Rapporteur (23 January 2017) UN Doc A/CN.4/704, paras 285-97; Thomas Kwoyelo v Uganda, African Commission on Human and Peoples’ Rights, Communication 431/12 (17 October 2018) paras 283-93.
 Kwoyelo v Uganda (n 19) para 293.